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3. The Tribunal framed the issues on the aforesaid pleadings and the plaintiff had examined himself only and relied on oral as well as documentary evidence. The railway administration did not examine any witness. The Claims Tribunal on con-sideration of the evidence adduced before it, recorded the findings that when the goods were booked and loaded, were in sound condition and that the clusters plantains deteriorated due to negligence on the part of the railway staff during transit. The Tribunal also recorded findings that the damage was caused to the goods due to the delay in delivery of the goods as clusters plantains were perishable goods. Claims Tribunal, however, scaled down the damages to the tune of Rs. 13,179 and directed the defendant/railway administration to pay the same to plaintiff with interest at the rate of 6 per cent per annum from the date of suit till realisation. This judgment dated 26.4.1991 passed by the Tribunal is under challenge in this appeal.

13. It is not disputed that the plaintiff had preferred the claim for damages before the Station Superintendent of Howrah Railway Station and upon that application four different damage certificates were is-sued which are marked by the Tribunal as P2, P3, P4 and P5. In absence of any evidence adduced by railway administration to show that the perishable goods reached the destination within a reasonable time, that the goods were handled in the transit with utmost care and that the deterioration of the goods cannot be attributed to the misconduct or negligence on the part of the railway administration, it is not possible to accept the contention of Mr. Lambat, the learned Counsel for railway administration that the railway administration can claim the benefit of Section 74(1) of the Indian Railways Act.

15. Simple reading of the aforesaid provisions of law would reveal that the burden is on the railway administration to prove that there was no negligence or misconduct on the part of the railway administration or its servant if the goods are deteriorated, damaged, destructed or not delivered on reaching its destination within a reasonable time.

16. In the present case the railway administration did not adduce any evidence to show as to how the goods were handled in transit. There is no evidence to show that the goods when tendered for its carriage, they were suffering from any inherent vice or there was any inherent defect in the goods. On the contrary, the clusters plantains were certainly perishable articles and, therefore, it was necessary on the part of railway administration to carry the goods to the destination within a reasonable time. It is admitted position in the present case that there was a delay of 2 days in reaching the goods to the destination so far as three consignments are concerned and there was a delay of about four days in reaching the goods to the destination so far as one consignment is concerned and, therefore, considering the delay, goods are bound to get deteriorated during transit and hence in absence of the proof as to how the goods were handled during transit, it is not possible to accept the contention of learned Counsel for the railway administration that the delivery of the goods was accepted under protest and hence railway administration is absolved from the liability to pay damages by virtue of Section 74(1) of the Indian Railways Act.

17. On close scrutiny, this Court is of the considered opinion that delay in delivery of the perishable goods are certainly on account of misconduct or negligence on the part of railway administration and, therefore, there is no error or illegality in the impugned order passed by the Tribunal. There is no merit in the appeal and hence the same is liable to be dismissed. Appeal is, therefore, dismissed with the costs.