1. On March 30, 1955, the Tata Iron and Steel Company, Ltd. consigned one wagon-load of mild steel angle iron bars from the Kumardubi railway station under railway receipt No. 259507, invoice No. 2, dated March 30, 1955. The consignee was the plaintiff who is an iron and steel merchant at Nagpur. When the consignment was received at Nagpur, it was found short in weight, i.e. the goods weighed 20 tons and 3 cwts. when sent, but they were found to be only 19 tons and 3 cwts. on reweighment at Nagpur. The plaintiff sued the defendant, the Union of India, representing the South-Eastern Bail-way, for the loss of the goods.
2. Now, there is no dispute as to the findings on the question of fact. Both the parties have accepted the findings of the trial Court which are as follows:-
The following facts are now too clear to be disputed (as seen from the evidence on record): (1) that the consignment was loaded in an open wagon, not by the defendants' men or under their supervision though the booking was done at the railway risk note I, (ii) that on reweighment at Nagpur, the consignment did weigh only 19 tons and 4 cwts. as against the original weight of 20 tons and 3 cwts., (iii) that the plaintiff did protest on account of the shortage though he did not do so promptly, (iv) in the absence of any cogent evidence from the defendants' side I see no reason to disbelieve the plaintiff.
Notwithstanding these findings the trial Court dismissed the plaintiff's claim, because it held that the defendant railway was protected under Section 74-B of the Indian Railways Act.
3. Section 74-B runs as follows:-
When any goods which, under ordinary circumstances, would be carried in covered vehicles or vessels and would be liable to damage if carried otherwise, are, at the request of the sender or his agent recorded in the forwarding note, tendered for carriage by railway in open vehicles or vessels, the railway administration shall not be responsible for any destruction, deterioration or damage which may arise only by reason of the goods being so carried.
The view which prevailed with the trial Court was that since the goods were carried in an open wagon, the railway was completely protected and was not responsible for any destruction, deterioration or damage, which presumably includes loss.
4. On behalf of the plaintiff it is now urged that Section 74-B does not afford any protection to the railway if the goods are lost because it only protects the railway against 'destruction, deterioration or damage'. Mr. Rudra on behalf of the railway has urged that loss of the goods is included in the word 'deterioration' in Section 74-B and he relies upon a decision of the Patna High Court in Bengal and North-Western Rly., Co., Ltd. v. Tupan Doss. ILR (1926) 5 Pat. 465.
5. In that case the division bench of the Patna High Court was concerned with the interpretation of Section 75 of the Railways Act and the words used in Section 75 are 'the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package'. In interpreting the word 'deterioration' the division bench held upon a reference to the meaning of the word in the Oxford Dictionary that it meant impairment in quality or value, and the division bench concluded that if any goods are abstracted from a parcel, the parcel was impaired in value and therefore the loss is included in the word 'deterioration'. Mr. Rudra on behalf of the railway urges that the word 'deterioration' as used in Section 74-B is indicative of the same connotation. Section 75 of the Railways Act is curiously worded and the wording is peculiar to itself. It differs from the new Section 74-B with which I am here concerned. Section 75 speaks of ,' articles...contained in any parcel or pack age' and indemnifies the railway in the following words 'the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package'. In my opinion it is important to notice that the emphasis is on the loss, destruction or deterioration of the 'parcel or package' as distinct from the articles contained therein. It is this peculiar dichotomy which induced the Patna High Court to hold in Bengal and North-Western Rly., Co., Ltd. v. Tupan Dass (cit. sup.) at p. 467 that 'the parcel was impaired in value by the abstraction of these articles and consequently there was deterioration of the parcel'.
6. Section 74-B, however, does not refer to the parcel or package in which the goods are contained but speaks directly of the goods themselves. In the different context of Section 74-B it seems to me difficult to hold that 'deterioration' of the goods is the same thing as loss of the goods.
7. The provisions of Section 74-B were based upon the provisions incorporated in the old Risk Note in form C which were similar in language. Considering the provisions of Risk Note C, the Calcutta High Court in G.G. in Council v. Patal Paul & Co. : AIR1952Cal285 , held that the words 'destruction, deterioration or damage' do not include loss. In para. 6 of the judgment at p. 286 Mr. Justice Mookerjee observed as follows:-
In risk note C, no indemnity is given in case of loss as distinct from cases of destruction! deterioration or damage. This is clear from a comparison of risk note 'C with the other risk notes where the word 'loss' is also included.
One finds the same distinction also made in the provisions of the amended Railways Act if one compares Section 74-B with Section 74-C, Sub-section (3). In that sub-section the word 'loss' is used in contradistinction to the words 'destruction or deterioration of or damage to'. Having regard to the provisions of Section 74-C it is not too much to suppose that if the Legislature had intended to protect the railway administration against such loss, they would have used the word 'loss' in Section 74-B in addition to the words 'destruction, deterioration, or damage' as they have done in Section 74-C.
8. Moreover, the opening words of Section 74-B make such an interpretation impossible. The opening words are:
When any goods which, under ordinary circumstances, would be carried in covered vehicles or vessels and would be liable to damage if carried otherwise are at the request of the sender or his agent recorded in the forwarding note etc.' (Italics are mine.)
The section intended to provide a protection for the railway where the goods are carried in an open wagon which ordinarily would be carried in covered vehicles and would be liable to damage if carried otherwise.
9. The emphasis is more upon the damage to quality of the goods rather than to the quantity, and therefore I am not prepared to hold that the words 'destruction, deterioration, or damage' include 'loss'. It does not appear from the judgment of the trial Court that it considered this aspect of the matter. It assumed that the section granted immunity to the railway in case of loss where the goods are carried in open wagons.
10. As to the quantum of damages, the trial Court found that the damage would be Rs. 724-14-0. The quantum of damages was not disputed before me.
11. I allow the application for revision, set aside the judgment and decree of the trial Court dismissing the plaintiff's suit and instead pass a decree in favour of the plaintiff and against the defendant for the sum of Rs. 724-14-0, with costs throughout.