1. The civil Revision Petition arises out of a smallcause suit filed by the respondent against the petitioners Railways. The respondent consigned to the Railways earthenware in a full wagon by booking it at Bahadurgarh Railway Station on 8-12-1972 for delivery at Hyderabad. Open delivery of the goods was taken at Hyderabad on 22-12-1972. Four packages of earthenware were found broken. Towards the cost of that broken earthenware, the respondent filed the suit against the Railways to recover a sum of Rs. 798-80 ps. The Additional Judge, City Small Cause Court, who tried the suit found misconduct and negligence on the part of the Railways and accordingly decreed the suit. Aggrieved by that the Railways have preferred this revision petition.
2. The earthenware was not packed in wooden cases, but it was packed in grass and tied with ropes. In ex. B-3 forwarding note, there is a specific endorsement signed by the consignor to the effect that the packing conditions are not complied with and goods are liable for breakage and on that condition the goods were accepted by the Railways. As provided under S. 77C of the Indian Railways Act (hereinafter referred to as 'the Act') when the goods tendered to the railway administration to be carried by railway are either defectively packed or packed in a manner not in accordance with the general or special order if any, issued under sub-sec. (4) of that Section, the railway administration shall not be responsible for any damage, except upon proof of negligence or misconduct on the part of the railway administration or any of its servants.
3. According to the Railways, for fragile goods like earthenware etc. P-17 packing condition for outer packing as laid down under R. 120 of the Goods tariff General Rules framed as provided under S. 77-C (4) of the Act would apply goods must be packed in wooden cases. With regard to this the Lower Court has found that D. W. 1, Senior Goods Clerk, who was examined on behalf of the Railways is not able to show how P-17 packing condition is applicable even when the consignment was booked in a full wagon, and therefore on the ground that P-17 packing condition is not applicable to the consignment, found negligence on the part of the Railways and accordingly decreed the suit.
4. The lower Court has certainly committed a mistake in thing that P-17 packing condition is not applicable to consignment of goods in full wagon loads. The rule does not mention that P-17 packing condition would be applicable only when goods were consigned in part wagon loads and not in full wagon loads. The rule does not say either way, viz., it is not mentioned therein that it applies only to part wagon loads. On the other hand in the Rules wherever P-17 packing condition is not made applicable to full wagon loads that was so mentioned, for instance vide P-3 packing condition. Therefore, the lower Court went wrong in thinking that the goods were not defectively packed as mentioned in S. 77-C of the Act.
5. But as provided under S. 77-C even though the goods were defectively packed, the liability for damages would still be on the Railways if there is proof of negligence or misconduct on the part of the Railway Administration or any of its servants. It is the case of the respondent-plaintiff that as the goods booked are fragile goods it was the duty of the Railways to affix caution label to the wagon and no such caution label was affixed to the wagon. That either there is no obligation on the part of the Railways to affix the caution label or that it is not true that caution label was not affixed has not been stated in the written statement filed by the Railways. If there was a duty on the part of the Railways to affix caution label to the wagon and they did not do so, certainly that amounts to negligence on their part. The purpose of affixing caution label on the wagon in which fragile goods are loaded obviously is the caution to handle the wagon carefully at the time of shunting etc., In the absence of such a caution label on the wagon in question it is quite possible that the damage caused to the goods was on account of not carefully handling the wagon. If there was negligence on the part of the Railways, it is clear that they are liable for the suit amount claimed towards damages. Therefore, there are no merits in the revision petition and it is accordingly dismissed with costs.
6. Revision petition dismissed.