1. The Appellant is the plaintiff, which is a registered firm dealing in building and sanitary materials. The respondent is the Union of India, represented by the General Manager of the South Central Zone, Indian Railways, Secuderabad. The appellant entrusted 1000 S. W. pipes to the railway on 1-8-1966 at Barang for being carried to Hyderabad. The goods were consigned at Railway risk rate for delivery at Hyderabad. The consignment was loaded in the wagon by the coolies licenced by the Railway Administration. When the goods were delivered at Hyderabad on 26-8-1966 on the appellant paying the freight charges, it was found that 350 S. W. pipes were broken into pieces. The Goods Inspector assessed the damage at 60% at the time of delivery. On 12-9-1966 when the appellant preferred a claim for damages, the claim was rejected by the Railway Administration under its letter dated 29-9-1966 on the ground that the consignment was nor properly packed when it was entrusted to the Railway. The appellant issued a suit notice under Section 80 C. P. C. and later instituted the suit for recovering an amount of Rs. 1.725/- towards the cost of the damaged goods, interest at 12% per annum till the date of suit and cost of the registered notice. The appellant also prayed for interest at 12% per annum from the date of suit till the date of decree and at 6% per annum from the date of decree till the date of realisation.
2. It was not disputed that, out of the 1000 S. W. pipes consigned for carriagee at railway risk rate 350 pipes were broken into pieces by the time the goods reached the destination. Besides other pleas, the main plea of the respondent was that, in so far as the goods were not properly packed when they were consigned and the fact of improper packing was recorded in the forwarding note, the burden of proving negligence resulting in damage to the goods is on the consignor and that the consignor cannot be relieved of this burden by merely proving damage and making an allegation of negligence against the Railway. This contention of the respondent found favour with the trial Court and the lower appellate Court also.
3. Sri G. P. Sanghi, the learned Counsel for the appellant, contends that this is a case which is attracted by Section 73 of the Indian Railways Act and that the view of the Courts below to the effect that the case is governed by Section 77-C is not correct. It is further contended that, even if, for the sake of argument, it is to be held that the case attracted Section 77-C the non-production by the railway authorities of the records disclosing how the consignment was dealt with when it was in the possession and control of the Railway, despite a direction by the Court, gives rise to an inference that, if the records were produced, they may disclose facts leading to a reasonable inference of negligence or misconduct on the part of the Railway Administration or any of its servants. The learned Standing Counsel for the Railways, on the other hand, contends that the view of the Courts below is sound and correct.
4. The goods were consigned at railway risk rate. Section 73 of the Indian Railways Act 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, restraint 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;
(g) natural deterioration 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 non- delivery is proved to have been arisen from any one or more of the aforesaid cause, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non- delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of animals or goods.'
5. It is clear from section 73 (f) and the proviso to the section that, when any loss, destruction or damage is proved to have arisen from any omission or negligence of the consignor, the Railway Administration is not relieved of its responsibility for the loss, destruction or damage unless the Railway Administration further proves that it has used reasonable foresight and care in the carriage of the goods. when goods are delivered to the administration for being carried by the railway, it is necessary that the goods are carried by the administration using proper care and reasonable foresight. If there is any loss, destruction, damage or deterioration by the time the goods reached the destination, it will not relieve the railway administration of its responsibility to merely prove the loss, destruction, damage of deterioration arose on account of some act or omission or negligence of the consignor or the consignee or the agent or servant of either. The parliament, in its wisdom, thought it necessary to condone minor omissions or sight negligence on the part of the consignor of consignee and placed greater responsibility on the railway administration, which is a highly responsible public body. Prior to the amendment of the Railways act in 1961, the responsibility of the railway administration in regard to god entrusted for carriage by the railway was that of a bailee only; but the amended S. 7 made the liability of the railway administration the same as that of a common carrier of goods. Even when the railway administration can trace any loss, destruction, damage, deterioration or non- delivery to cause which have indisputably no reference to negligence or misconduct on the part of the railway administration to further prove that the goods were handled by the administration with proper care and reasonable foresight during the transit.
The law enjoins upon the railway administration and allots servants to evince great responsibility in carrying goods or animals entrusted to the administration for carriage on payment of the prescribed charge and the goods or animals shall have to be carried with proper care and without any negligence or misconduct, Even S. 77-c does not completely absolve the railway administration of its responsibility, when any goods tendered to the railway administration to be carried by the railway are in a defective condition or are defectively reached or packed in a manner not in accordance with the general or special order issued under sub-section (4) of section 77-C. Consigning the goods in a defectively or improperly with out conforming to the prescribed manner by itself is a mere act of negligence on the part of the consignor and it is attracted by section 73 (f) of the Act. In such a case, it would not suffice if the railway administration simply proves that the damage to the goods entrusted to it for carriage arose from the defective condition or the defective or improper packing of the goods by the consignor. The mere fact of the defective condition or the defective or improper packing of the goods being recorded by the consignor or his agent in the forwarding note does not make any difference in regard to the general liability of the general liability of the railway administration as provided in section 73 of the Act. The recording of that fact on the forwarding note by the consignor or his agent merely absolves the railway administration from the burden of proving that fact and nothing more, That fact might amount to negligence on the part of the consignor as contemplated in Section 73 (f) and it would be necessary for the railway administration to prove not only that the damage or deterioration arose on account of the negligent act or omission of the consignor or his agent but its servants used proper care and reasonable foresight in carrying the goods. If the railway administration seeks to take recourse to section 77-C so as to shift the burden of proving negligence or misconduct on its part on the consignor it be comes necessary fir the railway administration to satisfy the Court that the requirements of Section 77-c have been strictly complied with. That provision, to the extent relevant, reads as follows:-
'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 packet in manner not in accordance with the general 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 to wastage, or for the condition in which such goods are available for delivery at destination, except upon proof of negligence of misconduct on the part of the railway administration or of any of its servants.'
Every defective condition or every defective or improper packing of goods entrusted for carriage by the railway need not necessarily be of such nature as is liable to damage, deterioration, leakage or wastage. It is only a particular kind of defective condition or defective or improper packing that may be liable to damage, deterioration, leakage or wastage of the goods during transit. The language of section 77-C is clear and unambiguous. The provision requires not merely the recording of the fact of defective condition or the fact of defective of improper packing of the goods, but also its exact nature. It should be specifically recorded in the forwarding note that the defective condition or improper packing is liable to either damage or deterioration or leakage or wastage or all or some of them. In the absence of the such specific recording in regard to the susceptibility of the defect or impropriety, the railway administration cannot take recourse to section 77- C (1) of the Act. Section 77-C can be invoked only when the exact defeat and its probable consequence of a particular defect is deterioration or damage, the administration cannot invoke the provision if there is leakage or wastage. The essence of the provision is the exact nature of the defect with reference to its normal probable consequence. I feel fortified in this view of mine by the decision of the Calcutta High court in Union of India v. Laduram, : AIR1974Cal207 and also paragraph 1418 of the Indian Railway commercial Manual and the illustrations given therein.
6. In Union of India v. Laduram (supra), there was short delivery of goods and the damage was estimated at Rupees 950- 80 Ps. The consignor field a suit against the South Eastern Railway for compensation to the extent of the price short delivery. The defendant contested the suit on the ground that there was no negligence or misconduct on the part of the administration or its servants. The trail court decreed the suit in full. The railway administration preferred an appeal. The appellate court affirmed the liability of the railway administration and however reduce the decretal amount to Rs. 857- 28 Ps. while dismissing the appeal, the appellate court found that the goods were not packed in accordance with the prescribed rules. In the second appeal before the High Court, it was contended by the railway administration that, in so far as the appellate court found as a fact that the packing of the goods was improper, the burden of proving negligence or misconduct on the part of the railway administration is on the plaintiff- consignor and that the said burden was not discharged by the plaintiff. In that case, it was recorded in the forwarding note that the tins were old and not created and that the prescribed rules of packing were not complied with. As it was noted on the forwarding note that the packing of the forwarding note that the packing of the goods was improper, it was contended on behalf of the railway administration, that the burden of proving the administration's negligence of misconduct is on the consignor claiming compensation. Repelling the contention, the court held that;-
'In order that the railway administration may be absolved of its liability under section 7, it is necessary that in the forwarding note not only there should be a recording about the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage.'
Paragraph 1418 of the Indian Railway Commercial Manual, to the extent relevant, reads as follows:-
'1418. examination of packing etc. of goods:-
(a) Each package in a consignment tendered for conveyance should be carefully examined to see that it is properly and securely packed in accordance with the packing conditions laid down in the I. R. C. A.. Goods Tariff.
* * * * * * * (b) when a consignment tendered for despatch is not packed in accordance with the packing conditions laid down in the I. R. C..A. Goods Tariff or is insecurely fastened or packed or shows signs of pilferage or is in defective condition, as a consequence of which it is liable to deterioration, leakage, wastage or damage in transit, it should be ensured packing or nature of defective condition of the consignment is recorded on the forwarding note clearly and in detail by own handwriting. For example, consignments of grain, pulses, seeds, sugar, piece- goods, cotton, tobacco, wool, jute, provisions etc. often get wet while being brought to the station premises for loading. These should be carefully examined and precise remarks from the consignor or his authorised agent, regarding the number and conditions of the affected bags, should be obtained on the forwarding note, if the consignments are not tendered in good and dry condition.
* * * * * * * (c) to (e)
(f) A few examples are quoted below as a guide to illustrate the lines on which remarks should to illustrate the lines on which remarks should be obtained on the forwarding note from senders when the consignments are either not properly packed or are liable to deterioration, leakage, wastage or damage in transit by rail-
(See the table on next page)
(g) The entire remarks regarding defective packing, of the nature of the defective condition of the consignment, recorded on the forwarding note by the sender or his authorised agent should be copied out verbatim on all the foils of the connected invoice including the railway receipt. The staff are not authorised to enter any remark regarding or railway receipts, if similar remarks have not been entered on the forwarding not by the sender or his authorised agent.'
7. In the instant case , both the courts below took the view that the burden of proving negligence of misconduct on the part of the railway administration or its servants is on the plaintiff in so far as it was recorded in the forwarding note that the prescribed rules have not been
-------------------------------------------------------------------------------------------------------------------------------------Conditions of the consignment Remarks to be obtained from the sender on the forwarding Note.-----------------------------------------------------------------------------------------------------------------------------------------1. Rice in bags torn, patched or Bagging torn, patched or repaired, contents liable torepaired. drop out in transit, I. R. C. A. Packing conditions not complied with2. Rice in bags, wet or damp or .......................(number) bags inwet conditions contentscontents after test show signs of moudly and liable to damage and deterioration. I. R. C.mould. A. packing conditions not complied with.3. Hides 'wet' in bundles, not packed in gunny or hessian andliable to dryagepacked in gunny or hessian and damage I. R. C. A.Packing conditions not and not properly secured, with complied with.possibility of deterioration on route. 4. Sugar in bags, not new and not of Bags not new and not quality ' A'Twill or liverpoolquality 'A' Twill or Liverpool Twill. Twill. contents liable to drop out. I. R. C. A. packing conditions not compliedwith.5. Ghee or oil in leaky tins. .....................(number) tinsleaky, Liable to leakage and wastage. I. R. C. A. packing conditions not complied with..-----------------------------------------------------------------------------------------------------------------------------------------------
complied with both in regard to the outer packing and also the inner packing. what exactly is recorded in the forwarding note, Ex. B-, is 'I. R. C. A. 1/p and 0/P not complied with'. The probable consequence of the improper packing has not been recorded. It is not known whether the non-compliance with the prescribed rules of inner and outer packing is such that it is liable to the pipes being broken during transit. The entry in the forwarding note, Ex. B-, does not, therefore, invoke Section 77-c of the Act/so as to throw the burden of proof on the consignor whose goods have been damaged Both the courts below fell into an error by being of the view that section 77-c of the Act is attracted when the mere fact of improper packing of the goods is recorded on the forwarding note by the sender.
8. Further, in the circumstances of the case, the courts below were wholly unjustified in holding that the plaintiff failed to prove negligence or misconduct on the part of the railway administration or its servants by not adducing any evidence of negligence or misconduct on the part of the railway administration or its servants by not adducing any evidence of negligence or misconduct on the part of the railway administration or its servants during the transit of the goods. When goods are delivered to the administration for carriage from one place to another, it will not be possible for the sender or his agent to follow the goods throughout the transit and to watch whether the goods were being carried with care or negligently. The goods were consigned at Railway risk rate. There was no doubt improper packing of the goods in the sense that the packing was not in accordance with the rules prescribed by the railway authorities. At the time of the delivery, out of 100 pipes, 650 pipes were intact even though their packing also was improper. It is only 350 pipes that were broken into pieces. There was delay in the carriage of the goods. When the plaintiff field I. A. No. 486 of 1970 in the trial court for a direction to the railway administration for production of the records disclosing how the consignment was handle during transit and the court allowed the petition, the railway administration did not comply with the direction. After the goods were delivered to the railway administration and until they were delivered at the destination station, they were handles by the railway administration and its servants and the manner and mode of handling is exclusively within the knowledge of the railway administration. It is but proper that, when the court directed the railway administration to disclose these facts, which are relevant for a decision these facts, which are relevant for a decision of the vital issue in the suit, the railway administration produces the records or adduces evidence as to how the goods were handled. Suppression of such material evidence gives rise to an adverse inference against the railway administration. It has to be reasonably negligently and that, therefore, only the railway administration was fighting shy to product the relevant records that must have come into existence in the ordinary course of official business disclosing as to how the goods were handled during transit. Dealing with this aspect in appeal , the learned Additional chief judge observed as follows:-
'The appellant field I. A. 486/ 70 in the lower court direct the defendant to disclose how the consignment was handled and other particulars and the application was allowed but the defendant has not adduced any evidence to show how the consignment was handled during the transit. This is a case where the goods were defectively packed and the damage was the direct result of the defective packing. There was not much delay in transit. The seals put on the wagon at the forwarding station have been found intact when the wagon reached the destination station. There are therefore no circumstances to show that there was any mishandling of the consignment in transit. In the absence of any circumstances prima facial to hold that there was negligence or misconduct on the part of the railway administration or its servants, no adverse inference can be drawn.'
It should be remembered, as pointed out already, that the goods consigned are not350 pipes which were damaged, but 1000 pipes. The packing of all the 1000 pipes was not in accordance with the prescribed rules. Only 350 pipes were broken to pieces. There can be no further prima face proof of the fact that the improper packing by itself is not such that it would lead to the breakage of the pipes because 650 pipes improperly packed reached the destination station intact. Improper packing being common to the 650 and 350 pipes. something else is responsible for the damage of the 350 pipes and it is for the railway administration to satisfy the court that such something is not the negligence or misconduct of the railway administration or its servants.
9. Under the above circumstances, I an clearly of the view that this is a case where the plaintiff ought to have been awarded a decree for damages. The value of the 350 pipes that were broken was found by the lower Appellated Court to be Rs. 1209- 69 Ps. Neither side attacked this finding before me. I am therefore of the view that the plaintiff is entitled damages in a sum of Rs. 1209-69 ps. to wards the cost of the pipes damaged. The lower appellate Court has further held that the plaintiff would be entitled to interest at 6% per annum only from the date of suit till the date of realization and that he is not entitled to any costs of the registered notice or interest until the date of suit. No arguments have been addressed by either side attacking this finding also. The judgement and decreed of the court below are set aside and the appellant-plaintiff is awarded a decree against the respondent-defendant for a sum of Rs. 1209- 69 ps. payable with interest at 6% per annum from the date of suit till the date of realization. The plaintiff is also entitled to his costs in all the three courts.
10. In the result, the second appeal is allowed with proportionate costs throughout.
11. Appeal allowed.