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T. Muddu Veerappa Sons and K.H. Veeranna Setty Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1071 of 1968
Judge
Reported inAIR1972Kant164; AIR1972Mys164; (1972)1MysLJ96
ActsRailways Act, 1890 - Sections 73, 74, 74-C and 77; Evidence Act, 1872 - Sections 101
AppellantT. Muddu Veerappa Sons and K.H. Veeranna Setty
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateN. Suryaprakash, Adv.
Respondent AdvocateM.K. Nanjundiah, Adv.
DispositionPetition allowed
Excerpt:
.....deligence. 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 or 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 or improper packing are 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anything contained in the foregoing provisions of this chapter, the railway administration shall not be..........be repealed in the year 1961. according to him, where the loss is due to pilferage in transit, the railway administration shall be responsible for such loss. it is not necessary for the plaintiff to prove negligence or misconduct. mr. naniundiah appearing for the railways, however, sought to support the judgment of the lower court contending that the loss was due to the act of omission or negligence of the consignor by not following the condition of the goods tariff rules and therefore it is for the plaintiff to prove negligence or misconduct.6. the decision of this court in the bellary central co-operative stores' case. 36 mys lj 216 = (air 1959 mys 216) on which the learned judge placed reliance for his conclusion, is not applicable to the facts of this case. in that case, the.....
Judgment:
ORDER

K. Jagannatha Shetty, J.

1. The question that arises for determination in this Civil revision petition is whether the petitioner-plaintiff must prove negligence or misconduct of the railways in a suit for compensation for the loss of a portion of the maize, due to pilferage.

2. On 15-9-1966. Messrs. Appayappa Veerappa Bidri. Merchants. Gokak, despatched 170 bags of maize under invoice No. 6 to Bangalore City and sent the R. R. through a bank. The plaintiff after paying the amount received the R. R. and took open delivery of the goods at the Bangalore City Railway Station. At that time, it was found that there was a shortage of 500 kgs. of maize due to the bags having been cut and maize having been removed during the transit. The plaintiff brought the suit for compensation for the loss which he had suffered, estimated by him at Rs. 335-92 P. alleging negligence, carelessness and failure on the part of the railways and their servants to exercise care and deligence.

3. The suit was resisted by the railways denying that there was any shortage due to negligence or misconduct on their part. The shortage was attributed to the negligence of the consignor in not placing six bags of dunnage in the wagon to prevent extraction through door crevices. It is said that under the special condition of the Goods Tarif, the consignor is required to use six dunnage bags, three on each side of the flap doors placed in vertical position so as to fully cover up the flap door crevices.

4. The learned Judge of the court of Small Causes held that there was a loss due to pilferage in transit of 500 kgs. of maize, the cost of which is the plaint claim. He also held that the consignor did not comply with the special condition of the goods tariff by not placing the required dunnage bags. Instead of placing six bags of dunnage, only four bags were placed. He further held that it was for the plaintiff to prove that the loss was due to negligence or misconduct on the part of the railways or their employees,

In support of his conclusion, he placed reliance on the decision of this court in 36 Mys LJ 216 = (AIR 1959 Mys 90) (Bellary Central Co-op. Stores Ltd. v. Union of India). Following the said decision, he dismissed the suit. Hence this revision petition by the plaintiff.

5. Sri N. Suryaprakash learned counsel for the petitioner, contended that the learned Judge has committed an error in placing the burden on the plaintiff to prove negligence or misconduct of the railways. He further contended that the decision of this court in the Bellary Central Co.-op. Stores' case, 36 Mys LJ 216 = (AIR 1959 Mys 90) does not apply to the facts of this case as it was based on Clauses (c) and (d) of Section 74 of the Railways Act, which came to be repealed in the year 1961. According to him, where the loss is due to pilferage in transit, the railway administration shall be responsible for such loss. It is not necessary for the plaintiff to prove negligence or misconduct. Mr. Naniundiah appearing for the railways, however, sought to support the judgment of the lower court contending that the loss was due to the Act of omission or negligence of the consignor by not following the condition of the goods tariff rules and therefore it is for the plaintiff to prove negligence or misconduct.

6. The decision of this court in the Bellary Central Co-operative Stores' case. 36 Mys LJ 216 = (AIR 1959 Mys 216) on which the learned Judge placed reliance for his conclusion, is not applicable to the facts of this case. In that case, the consignment was carried at the reduced owner's risk rate, and the railway administration in such cases would not be liable for its loss or damage except as provided by Section 74-C of the Railways Act without proof that such loss or damage was due to negligence or misconduct on the part of the railway administration or its servants. In the present case, the goods were admittedly consigned at the railways' risk and the said Section 74-C is no longer in the statute.

7. Extensive amendments have been made in the Railways Act 9 of 1800, by Act 39 of 1961 which has come into force from 1st January 1962. Before the said amendments, the liability of the railways was that of bailees. By the 1961 amendment, the responsibility of the railways has been made almost that of an insurer, that is, of a common carrier as is understood in English law. The general responsibility of a railway administration as a carrier of animals and goods is stated under Section 73 of the Act. It reads as follows:--

'73. General responsibility of a railway administration as a carrier of animals and goods. -- 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, arising from any cause except the following, namely;

(a) act of God;

(b) act of war;

(c) act of public enemies; (d) arrest, restrain or seizure under legal process;

(e) orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in this behalf;

(f) act or omission or negligence of the consignor or the consignee or the agent or -servant of the consignor or the consignee;

(a) natural destruction or wastage in bulk or weight due to inherent defect, quality or vice of the goods:

(h) latent defects;

(i) fire, explosion or any unforeseen risk;

Provided that even where such loss, destruction, damage, deterioration or nondelivery is proved to have arisen from anv one or more of the aforesaid causes, the railways administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or nondelivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods'.

The next section which is relevant for our purpose is Section 77-C, the relevant portion of which is extracted below:--

'77-C. 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 or 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 or improper packing are 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, leakage 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.* * * *'

(Sub-sections (2). (3) and (4) are omitted).

8. To begin with, let us look at Section 77-C of the Act. It refers to two circumstances, one of which is a defective condition of the goods and another is defective or improper packing, as a consequence of which they are liable to damage, deterioration, leakage or wastage. The fact of such defective packing must be recorded by the sender or his agent in the forwarding note. Then, in such a case, notwithstanding anything contained in the provision of Chapter VII, the railway administration shall not be responsible for any damage, deterioration, leakage or wastage, except upon proof of negligence or misconduct on the part of the railway administration or of any of its servants. If the plaint claim is one of those exigencies to the consignment of maize. I have no hesitation in coming to the conclusion that it is for the plaintiff to prove negligence or misconduct on the part of the railway administration or any of its servants. But the plaintiff claims compensation for the loss due to pilferage. Can such a loss be brought within the meaning of the expression damage, deterioration, leakage or wastage? Can a loss due to pilferage by directly attributable to any defective or improper packing? Can a defective packing of the good, protect the railways against its liability for loss due to pilferage? I think not. It seems to me that the said section was obviously intended to cover the cases of damage, deterioration, leakage or wasting either duo to the defective condition of the goods or due to its defective of improper packing. It cannot cover loss due to pilferage. Pilferage means stealing in small quantities. The loss or shortage resulting by such stealing, in my judgment, cannot be said to be a damage or deterioration, leakage or wastage of the goods.

9. Mr. Naniundiah for the Railways invited my attention to a decision of Das Gupta, J., of the High Court of Calcutta in Dominion of India v. Guruprasad Ram Gupta. AIR 1949 Cal 679 and in particular to the following passage therein:--

'It was argued by the learned Advocate that when it is a case of pilferage, the question whether it was properly packed or not can hardly be of any consequence. I am unable to agree with him. In my opinion, the question whether the package was properly packed or not is of great importance for a case of pilferage. Obviously it may be very much easier to remove certain things from a package which is defectively packed than from one which is properly packed'.

10. The above observation cannot be of any assistance to Mr. Naniundiah for his contention that the defective packing of the goods absolves the railway from its liability for loss due to pilferage. I do agree that defective or improper packing may help a person to pilfer easily and as quick as possible. It may be an added attraction, but not as a consequence of which alone, one can pilfer. Pilferage is nothing but an act of theft, be it by a railway servant or by a third party. It could be committed either due to the negligence or despite reasonable care and precaution taken by the railway administration or its servants. In my opinion, therefore, a loss due to pilferage cannot be brought within the scope of Section 77-C.

11. Let us now turn to the provisions of Section 73 of the Act. It creates a general liability of a railway in respect of loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by a railway. Pilferage in transit must be said to be loss within the scope of this section. The railway, therefore, shall be responsible for that loss. But there is an exception clause, stating that even if the loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the circumstances enumerated in Clauses (a) to (i) of the said section, the railway administration shall not be relieved of its responsibility for such loss etc.. unless the administration further proves that it has used reasonable foresight and care jn the carriage of the animals or goods.

12. It was next contended by Mr. Naniundiah, while relying on Clause (f) of Section 73, that loss due to pilferage though it was not the direct consequence of the defective packing, was partly due to the act of omission or negligence of the consignor in not properly packing the wagon, as per the conditions of the tariff rules. For this he also relied on the finding of the lower court. It may be recalled that the pilferage was found in the instant case from the bags above the dunnage which was admittedly short of the requirement. The act or omission of the consignor in not following the tariff rules and by not putting the required six bags of dunnage, might have helped the thief to pilfer easily in this case. Even then, it is for the railway administration to prove that it had taken steps as enjoined under the proviso. The proviso to Section 73 imposes an obligation on the railway administration to take reasonable foresight and care in the carriage of the goods. If the railway fails to prove that it had performed its statutory duty, the absolute liability imposed under the section would continue to make the railway responsible. What is reasonable foresight and care is necessarily a question of fact to be decided in each case on its particular circumstances on the basis of the evidence produced by the railway. Foresight may mean care for the future or prevision, while care is the actual step taken to avert such a loss. Both must be regarded as reasonable in a given premises. In the instant case, the railway has not adduced any evidence in this regard. The responsibility for the loss must, therefore, be squarely on the railway. It is therefore, not necessary for the plaintiff to prove negligence or misconduct on the part of the railway or any of its servants.

13. The learned Judge, Small Causes. Court was in error in placing the burden on the petitioner to prove misconduct or negligence on the part of the railway administration. In the case of pilferage, even if the goods are proved to have been defectively packed, the railway administration is not relieved of its responsibility for the loss unless it further proves that it has used reasonable foresight and care in the carriage of the goods.

14. In the result, this petition is allowed, setting aside the judgment and decree of the lower court. The plaintiffs suit is decreed with costs throughout.


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