Patna High Court
Sheonand Rai Gajanand vs Union Of India (Uoi) on 16 February, 1967
Equivalent citations: 1968(16)BLJR22
JUDGMENT
R.K. Choudhary and K.B.N. Singh, JJ.
1. This is an application under Section 25 of the Small Cause Courts Act filed by the plaintiff against the Judgment and order of the Small Cause Court Judge dismissing its suit for recovery of damages for loss caused to cotton yarn which was booked from Wadibandar for being sent to Darbhanga.
2. It appears that, on the 31st May, 1963, four bales of cotton yarn were booked under railway risk, as stated above, and the consignment reached Darbhanga in damaged condition. An open delivery was given, and the damage was assessed, on the 21st June, 1963, as claimed in the suit.
3. The suit was contested by the defendant on the ground of want of notices under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure and also on the ground that the Picking was not in accordance with the Tariff Rules, and the damage was not caused due to any negligence of the railway.
4. The learned Small Cause Court Judge found that the notices were validly served but the packing was defective. The suit was, accordingly, dismissed. Being thus aggrieved, this application has been filed by the plaintiff.
5. According to the contention of the defendant, the packing was defective in the sense that the consignment was packed with polythene paper of less than 300 gauge, though the Tariff Rules revised the packing with a paper of 300 gauge. The assessment report exhibit : which was prepared at the time of making the assessment, states that the packing was with a paper of onelayer polythene film below 300 gauge, and that report contains the signature of the representative of the plaintiff who had gone to take the delivery of the consignment. That evidence has been accepted by the court below. Nothing lias been pointed but to us to interfere with the finding of the Court below on this point.
6. Mr. Rajgarhia, however, has urged that the railway can be protected only on proof of two facts under Section 77C(2), viz., (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 or packed in a manner not in accordance with the 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 defective 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. It has been urged that the forwarding note, which could have shown whether the packing was defective or not, has not been produced by the railway, and no explanation has been given by it for its non-production. Therefore, an adverse inference could be drawn that the packing was not defective, and the plaintiff could take advantage of this presumption for proving its case. In the present case, however, there is a clear finding of the Court below on evidence that the packing was defective, and, therefore, the presumption that could be drawn from the non-production of the forwarding note can be said to have been well rebutted in this case. Mr. Rajgarhia, however, contends that it will not be enough for the railway to get protection by simply proving that the packing was defective. Under Clause (b) of Sub-section (2) of Section 77C, the railway has, apart from proving defective packing, to prove also the fact that at the time when the consignment was booked, the railway administration had no notice of the defective packing. If according to Mr. Rajgarhia, no evidence has been adduced by the railway to prove that the railway administration had no notice of the defective packing, it is not entitled to any protection, and the plaintiff must get a decree for the loss caused to it. In our view, there is a good deal of substance in this contention, and it must prevail. True it is that, on the evidence, the railway has been able to prove that the packing was defective, in as much as the paper used in the packing was less than 300 gauge; but that alone would not relieve the railway of its liability unless it also proves that it had no notice of such defective packing at the time the consignment was booked. There is no evidence on this point at all. That being so, we do not think the railway can be relieved of its liability in the present case.
7. The result, therefore, is that this application is allowed, the Judgment and order of the learned Small Cause Court Judge is set aside, and the suit is decreed as claimed by the plaintiff with costs throughout and interest pendentelite at six per cent per annum with future interest at six per cent per annum till realisation of the amount: hearing fee Rs. 100/-