Patna High Court
Bihar State Co-Operative Marketing ... vs Union Of India (Uoi) on 1 December, 1988
Equivalent citations: 1990(1)BLJR280
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These two second appeals involving common question of law and fact were heard together and are being disposed of by this common judgment.
2. In this appeal the interpretation of Sections 73 and 77-C of the Indian Railways Act (hereinafter referred to as 'Act') is in question.
3. The facts of the case lie in a very narrow compass.
4. The plaintiff was the consignee in respect of the goods in question. It is admitted that the said goods were sent at railway risk rate. It is further admitted that the said goods being Urea were sent in old used gunny bags. This fact was noted in the forwarding note sent by the consigner thereof himself. Allegedly when the said goods arrived at the destination on taking over delivery thereof some shortage was found, in respect whereof a certificate showing short delivery was granted.
5. The plaintiff who was the consignee in respect of the said goods filed the aforementioned suit for a decree of a sum of Rs. 5,500,20 paisa for recovery of the damages suffered by him owing to the aforementioned short delivery. It is further admitted that the weight of the goods was accepted by the Railway administration and in the railway receipt 'S.W.A.' was written. However, it was also mentioned in the railway receipt that loading and unloading was to be done by consignee. In other words the goods were transported under L/U system.
6. The learned trial court decreed the Appellants suit holding, inter alia therein, that although the goods in question were defectively packed being not packed in accordance with the packing conditions under Section 1 of Chapter IX of the Goods Tariff, but the railway administration has not discharged its onus to prove that damage or deterioration in the goods occurred owing to such defective packing.
7. The learned lower appellate court, however, dismissed the aforementioned suit while reversing the judgment of the trial court holding, inter alia, therein that in view of the defective condition of packing, the plaintiff is not entitled to recover any amount from the Railway Administration in view of Section 77-C of the said Act.
8. At the time of admission of this appeal, by an order dated 3.12.1982, the following substantial question of law was formulated:
Whether in the facts and circumstances of this case, Sub-section (1) of Section 77-C of the Indian Railways Act will be applicable OF Sub-section (2) of Section 77-C of the said Act will apply?
9. Mr. B.S. Lal, learned Counsel appearing on behalf of the appellant, firstly submitted that as in this case the goods were sent under railway risk; rate, the onus of proof that short delivery was not occasioned by any negligence on the part of the Railway Administration lay upon it and not upon the plaintiff. The learned Counsel further submitted that Section 77-C(J) of the said Act has no application in the facts and the circumstances of this case but Sub-section (2) applies and as such the onus to prove that any damage, deterioration, leakage or wastage has occasioned owing to the negligence on the part of the Railway Administration does not lie upon the plaintiff and it was for the respondents to prove that any damage, deterioration, leakage or wastage has not occasioned in respect of the goods in consignment due to negligence on its part.
According to the learned Counsel if the provisions of the aforementioned Section 77-C is compared with the provisions of the Section 73 of the said Act, it would be evident that whereas Section 73 contemplates 'loss', destruction's and 'non delivery' along with 'damage', 'deterioration', leakage' or 'wastage', Section 77(C) contemplates, only as indicated here in before, situation when the damage, deterioration, leakage or wastage in respect of the consignment is caused.
10. The learned Counsel in support of his contention has relied upon a decision of the Calcutta High Court in Union of India v. Laduram Fakirchand : Shiv Saran Dass v. Union of India and also a Division Bench decision of this Court in Bihar State Co-operative Marketing Union v. Union of India and Ors. .
11. Mr. D.N. Chatterjee, the learned Counsel appearing on behalf of the respondent, on the other hand, submitted that in the instant case in view of the endorsements made in the forwarding note itself it would be evident that the packing conditions were not complied with and in this view of the matter, the onus to prove that any loss was occasioned owing to the negligence on the part of the Railway Administration lay upon the plaintiff and not upon the Railway Administration.
12. Mr. Chatterjee in support of his contention has relied upon a decision of this Court in the Bihar Slate Co-operative Marketing Union Ltd. West Lawn v. The Union of India reported in 1977 BBCJ 554; Union of India v. Firm Chhitarmal Ramdeyal and Anr. and in Union of India v. Aluminium Industries Limited .
13. Chapter VII of the said Act provides for the responsibility of Railway Administration as carriers. Section 73 is a general provision which provides for the general responsibility of the Railway Administration as a carrier of animals and goods. The said provision is subject to other provisions contained therein as would be evident from the language used in the said section itself which is in the following terms:
Save as otherwise provided in this Act a railway Administration shall be responsible for the loss, destruction, damage, deterioration or non delivery in transit of animals or goods delivered to the Administration to be carried by railway.
14. Section 77-C which was inserted by the Indian Railway (Amendment) Act, 1961 contemplates an extraordinary situation and is a special provision.
15. Section 77(c)(1)(2) of the said Act read as follows:
Responsibility of a railway administration for damage, deterioration, etc. of goods in defective condition or defectively packed, (1) When any goods tendered to a railway administration to be carried by railway-
(a) are in a defective condition as a consequence of which they are liable to damage, deterioration, leakage or wastage or
(b) are either defectively packed in a manner not in accordance with the general or special order, if any. issued under Sub-section (4) and as a result of such defective of improper packing are being liable to damage, deterioration, leakage or wastage, and the fact of such condition or defective or improper packing has been recorded by the sender or his agent in the forwarding note, then, notwithstanding anything contained in the foregoing provisions of this Chapter, the railway administration shall not be responsible for any damage, deterioration, leaking or wastage, or for the condition in which such goods are available for delivery at destination, except upon proof of negligence or misconduct on the part of the railway administration or of any of its servants.
(2) When any goods delivered to a railway administration to be carried by railway are found on arrival at destination to have been damaged or to have suffered deterioration, leakage or wastage, then notwithstanding anything contained in the foregoing provisions of this Chapter, the railway administration shall not be responsible for the damage, deterioration, leakage or wastage of the goods on proof by the railway administration.
(a) That the goods were, at the time of delivery to the railway administration, in a defective condition or were at that time either defectively packed of packed in a manner not in accordance with general or special order, if any issued under Sub-section (4) and as a consequence of such defective condition, or defective or improper packing were liable to damage, deterioration, leakage or wastage, and
(b) that such defective condition or improper packing was not brought to the notice of the railway administration or of any of its servants at the time of delivery of the goods to the railway administration for carriage by railway.
Provided that the railway administration shall be responsible for any such damage deterioration, leakage or wastage if negligence or misconduct on the part of the railway administration or of any of its servants is proved.
16. True it is and as contended by Mr. Lai that Section 77-C of the Act contemplates a situation where damage, deterioration, leakage or wastage of the goods is caused or is liable to be caused when the same is defectively packed or packed in a manner not in accordance with the general or special order, if any, issued under the statute or if the same is in a defective condition. It is also true that in Section 77-C of the said Act, the words 'loss,' 'destruction', or 'non delivery' do not find place. However, in my opinion the user of the words 'loss' 'destruction', or 'non delivery' which have been used in Section 73 of the said Act but not in Section 77-C thereof is not material. Both the provisions aforementioned should be harmoniously construed. The words 'damage', 'deterioration, 'leakage' or 'wastage' occurring in Section 77-C of the said Act refer to consequences if the consignment in question is improperly packed. As noticed hereinbefore Section 73 of the said Act is a general provision whereas Section 77-C thereof is a special provision.
It is a well known principle of construction of statute that a general provision gives way to a special provision--General Specialibus non derogant.
17. It is, thus, evident that in a case where Section 77-C of the Act applies, the Section 73 thereof will not come in its way. Further as mentioned hereinbefore Section 73 of the said Act itself is subject to the other provisions of the said Act.
18. In this case the fact of defective or improper packing was recorded by the consigners in the forwarding riots itself. On the basis of the evidence on record bath the learned courts below have concurrently held that not only the agent of the consigner noted the matter of defective packing in the forwarding note but the officers of the railway administration noted therein that the bags were old and single of which some bags were torn, loose and partly wet and further the contents thereof had been found to be dropping of the wagon floor.
It has also been found by the learned lower appellate court that the goods were tendered not only in a defective condition but also in a defective packed condition.
19. This concurrent finding of fact is binding upon this Court in Second Appeal. In any event these findings of facts arrived at by the learned courts below have also not been challenged by the learned Counsel appearing on behalf of the appellant.
20. in that view of the matter, the instant case is covered by Section 77-C(1) of the Act, by reason of the provision whereof the Parliament in its wisdom has absolved the Railway Administration from its liability to pay damages if any damage, deterioration, leakage or wastage, etc. occurs because consignment of any goods was done in defective condition or improperly packed condition. The phraseology used in Section 77-C of the said Act appears to be absolutely plain and unambiguous and two different interpretation thereof is not possible.
21. The decisions of Calcutta High Court and Delhi High Court cited by Mr. Lal, however prima facie support the contention of Shree Lal.
In Union of India v. Laduram Fakirchand it has been held by the Calcutta High Court that in the forwarding note not only the defective or improper packing of the goods should be recorded but it should further be recorded therein that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage.
22. With utmost respect of the learned Judge I am unable to subscribe the said view. In my opinion, from a plain reading of Section 77-C(1)(a) it would be evident that whenever any good which is tendered to the Railway Administration for its carriage is in a defective condition or in a defective packed condition, as a consequence whereof the same was liable to damage, deterioration, leakage or wastage, etc. or the same is defectively packed or packed in a manner not in accordance with the general or special order, if any, issued and as a consequence of such defective or improper packing the same was liable to damage, deterioration, leakage or wastage...in such an event the Railway Administration shall not be responsible therefor. It is, therefore absolutely clear that damage, deterioration, leakage or wastage may occur or may become liable to occur owing to a defective packing or packing in a manner not in accordance with the general or special order or is tendered in a defective condition and in such a situation the Railway Administration is absolved from its liability.
23. Apparently damage, deterioration leakage or wastage in the consignment which may be caused owing to the tender of the goods in defective or improper packed condition and in that view of the matter it is not possible to subscribe the view that not only the factum of the defective packing is to be mentioned in the forwarding note but also in consequence thereof which may or may not be contemplated by both the consignor and the consignee at the time of the tendering the consignment for transport by the railway administration should also be mentioned.
24. In Shiv Saran Das v. Union of India , it has been held by the Delhi High Court that Section 77-C of the Act does not refer to loss or non-delivery of goods as it only refers to damage, deterioration, leakage or wastage and as such the Railway Administration in order to get itself absolved from its liability for damage must prove that defective packing was not brought to the notice of the Railway Administration at the time of the delivery of goods for carriage and in absence thereof Section 77-C does not absolve the railway administration from its responsibility for short delivery of goods.
The Delhi High Court while deciding the aforementioned case sought to distinguish a decision of this Court in Sarjug Prasad v. Union of India . In Sarjug Prasad's, case this Court held that if the forwarding note the factum of defective packing has been mentioned, the onus of proof would lie upon the plaintiff and not upon the Railway Administration. True it is and as has been pointed out in the aforementioned decision of the Delhi High Court that in the said case before the Patna High Court goods were packed at the owner's risk rate and not at the railway risk rate, but, in my opinion, this distinction is not material for the purpose of construction of Section 77-C(1) vis-a-vis Section 77(C)(2) of the said Act.
25. Section 77-C of the said Act on its plain reading does not comtemplate different consequences arising from the fact as to whether the goods were booked at the railway risk rate or at the owner's risk rate.
26. However, with utmost respect again, I am unable to subscribe to the views of the learned Judge of Delhi High Court expressed in the said decision inasmuch as the amendment made in the year 1961 was enacted for the benefit of the railway administration and not for the benefit of the consignors or the consignees.
27. The amending Act of 1961 brought about many charges in the said Act. Insertions of various provisions therein including amendment in the provision of Section 73 thereof were evidently done by the Parliament so as to enable the railway administrations to avoid its liability under certain circumstances, if it is able to bring its ease within the purview of the provision contained in Section 76-C of the Act. fn such an event clearly the statutory benefit conferred upon it must be given full effect to. The said provision must be construed taking into consideration the intent and purport of the Amending Act. In other words the purpose for bringing in the amendment in the legislation must be borne in mind in construing the same.
ID this view of the matter, I am of the opinion that narrowly semantic approach should not be and the purposive approach should be, adopted in this case, It must, therefore, be held that in the forwarding note the consequences are not required to be mentioned therein but only the requirement of Section 77-C(i) of the Railway Act would be satisfied if any of the factors enumerated in Clauses (a) and (b) thereof are mentioned therein.
28. In the instant case, as noticed hereinbefore, there is a finding of fact that goods were booked in such a condition as a result whereof, a short delivery occurred, or was bound to occur.
29. Further, in my opinion, although, in Section 77-C of the Act the words 'loss' or 'destruction' or 'non-delivery do not occur but it must be borne in mind that in Section 73 of the said Act also the word 'short delivery, does not occur.
30. A case of short delivery may arise owing to various circumstances including damages, deterioration, leakage or wastage. If a short delivery takes place for some other reason it could legitimately be aurged that in such situation Section 77-C will not apply but in my opinion it must be held that short delivery may result because of damage, deterioration, leakage or wastage of goods. The word loss' destruction' and 'non delivery' used in vorious provisions of the Indian Railways Act and particularly Chapter VII thereof arc words having wide amplitude and as such the same should be given its full effect. It is inconnceivable in my opinion, that a short delivery may not occur owing to damage or wastage of the goods which resulted as a consequence of the defective packing or defective condition.
31. So far as the decision of this Court in the Bihar State Co-operative Marketing Union's case (supra) is concerned, it appears that Division Bench of this Court had relied upon a case reported in Sheonand Rai Gajanand v. Union of India reported in 1986 BLJR 22 and distinguished on facts the case of Union of India v. Chhotelal Shewanath Rai . In Chhotelal's case this Court held that when the loading had been done at the station of despatch by the consignor himself under L/U condition which means the wagon was loaded by the consignor himself and was to be unloaded by the consignee at the destination point, no admission on the part of the railway administration as to the correctness of the weight of the consignment loaded could be made out to fix the liability for short delivery of the consignment.
In the Bihar State Co-operative Marketing Union's case (supra) , goods had been loaded by the labourers of the railway and loading charges were also realised and the despatch was not under L/U condition and in that situation it was held that the onus of proof was upon the Railway Administration. Further in that case even the forwarding note was not proved which would be evident from the following observations of the Bench:
In the instant case, the forwarding note which could have been shown whether the package was defective or not; has not been produced by the railways and no explanation has been given for its non-production. I have already pointed out that no witness has been examined on behalf of the railways to prove that the shortage was due to the negligence and carelessness of the consignor.
32. However, in the instant case, as indicated hereinbefore, not only the forwarding note has been proved by the Railway Administration but in the forwarding note itself the manner of packing had been mentioned. In such a situation, in any opinion, the decision in Bihar State Co-operative Marketing Union's case is not applicable in the facts and the circumstances of this case.
33. In the Bihar State Co-operative Marketing Union of India v. The Union of India reported in 1977 BBCJ 554 it has been held as follows:
In this case the forwarding note of the consignment in question is Ext. C. The forwarding note clearly establishes that the goods were defectively packed. In this situation the learned Counsel for the opposite party contends that Section 77-C of the Indian Railways Act is applicable and consequently it is for the plaintiff to prove negligence or misconduct. The contention appears to be correct.
Section 77 of the Act states that in case of deffective packing which fact has been recorded by the sender or his agent in the forwarding note notwithstanding anything contained in the provisions of Chapter VII of the Act, the Railway Administration shall not be liable for any leakage or wastage except upon proof of negligence or misconduct on the part of the Railway Administration or any of its servants. It is thus, clear that in view of Ext. C, the forwarding note, which records defective or improper packing the onus was on the plaintiff to prove negligence or misconduct.
34. In Union of India v. Firm Chhitarmal Ram Deyal , a Division Bench of Allahabad High Court held as follows:
Both the courts below concurrently found that the oil despatched in the instant case was not packed in accordance with the prescribed rules on this subject. No evidence was led by the plaintiff-consignor to show that Railway or its servant had negligently dealt with the consignment or that there was any misconduct on the part of Railway Employees. In these circumstances, the burden of proof lay on the plaintiff to show that the loss could not have occasioned as a consequence of defective packing of the consignment.
35. I respectfully agree with the aforementioned decision.
36. Mr. Chatterjee has also cited Union of India v. Aluminiun Industries Ltd. Reported in . Paragraph 9 of the said decision reads as follows:
Approving the decisions reported in AIR 1950 Nag 85 (supra) and AIR 1956 Mad 175 (supra) the Supreme Court has laid down in AIR 1970 SC 842 : Hari Sao v. State of Bihar which also deals with the expression "S.W.A." as follows:
...There would be no presumption that the goods put in the wagon were chillies because the railway did not accept the consignment as such and described it as 251 bags allegedly containing chillies. Nor was there any acceptance of the weight of the goods by the Railway. The endorsement "S.W.A." would negative the plea, if any, that the weight was accepted by the railway. The endorsement L/U emphasised that the loading and unloading being in charge of the consignor the railway could not be held liable for any negligence in loading or unloading.
In Orient Paper Mills Ltd. v. Union of India, a Division Bench of this Court, one of us (B.K. Behere, J.) has held that in a suit for damages for loss of goods against the Railway Administration, the onus lies on the plaintiff to establish the actual loading of the goods for the loss of which the claims have been made. That was also a case where the consignment had been loaded and despatched from the siding of the consignor.
I respectfully agree with the aforementioned view.
37. Mr. B.S. Lal, however, submitted that in the instant case Sub-section (2) of Section 77-C will apply. According to Mr. Lai in terms of Section 77-C(2) of the said Act, the onus to prove would lie upon the Railway Administration to show that it was not negligent and in a case of this nature and it was incumbent upon the Railway Administration to prove both the factors enumerated in the said provision.
However, in my opinion the submission of Mr. Lal has no force.
38. Sub-section (2) of Section 77-C of the said Act may be attracted in case where no endorsement about the defective packing etc. has been made by the consignor in the forwarding note itself. In a case where an endorsement has been made with regard to the defective condition of the goods or the defective packing evidently sub-section (1) of Section 77-C would apply as is clear from the plain language thereof.
39. In the instant case, as noticed hereinbefore, the fact relating to defective or improper packing has been noted in the forwarding note by the agent of the consignor and thus in this case Sub-section (2) of Section 77-C has no application.
40. In the result, I do not find any merit in these appeals which are accordingly dismissed but in the facts and the circumstances of this case, there shall be no order as to costs.