Mithal Lal, J.
1. The only point, which arises for consideration in this case, is whether in view of the provisions of Section 74-A and the defective packing of the goods the railway administration was not liable for damages.
2. In this case nine bales of cloth were booked from Kooperganj (Kanpur) on 18th August, 1956, to Siswa Bazar (Gorakhpur) at railway risk. Delivery of the goods was given one month and seven days after on 25th September, 1956. Two bales were found pilfered and soaked with water. After due notice the plaintiff brought a suit for recovery of Rs. 510/- as damages. The suit was dismissed by the trial court on the ground that the plaintiff failed to prove any misconduct or negligence on the part of the railway administration and as the plaintiff had not complied with the rules in packing the goods with tarpaulin the railway administration was not liable. The matter was taken up in revision to the District Judge, Gorakhpur, who gave a finding that the railway having failed to prove the condition of the wagon at the time of the loading and the wagon having been found to be badly leaking at the tune of delivery, the railway had to prove how the consignment was , dealt with or that proper care of the goods was taken. The suit was accordingly decreed and so this revision.
3. It has been contended by Sri D. D. Seth, learned counsel for the petitioner, that the goods having been packed against the railway instructions without a protecting covering of tarpaulin and there being no evidence that the wagon was leaking at the time of loading, it was for the plaintiff toprove the negligence or misconduct on the part ofthe railway administration. He has contended thatSection 74-A gives complete protection to the railways where goods have been despatched at railway's risk without compliance with the instructionsgiven for packing of goods. For this purpose theparties have relied upon the authorities of Secy. ofState v. Firm Jhaddu Lal Hazari Lal : AIR1933All460 , Manickam Chettiar v. Union of India : AIR1960Mad149 , Dominion of India v. Guruprosad RamGupta AIR 1949 Cal 679 and M. and S. M. Rly.,Co., Ltd. v. Ravi Singh Deepsing and Co. : AIR1935Cal811 , and Triloki Nath v. Governor General in Council : AIR1951All489 .
4. In the present case the proved facts are that nine bales of cloth were booked at railway risk. The packing was defective and a note to that effect was made in the forwarding note as well as the R. R. The goods were delivered after one month and seven days and at the time of delivery two of the bales were found damaged and pilfered. There is no evidence about the condition of the wagon at the time df loading and the only evidence in the case is that the wagon was badly leaking at the time when the delivery was given. There is also no evidence on record to show that the damage, which was caused to the two bales, was due to defective packing. The question is whether in such a case presumption of negligence or misconduct on the part of the railway administration can be made and whether the railway administration can be made liable for the damage.
5. In the case of : AIR1935Cal811 (supra), the goods were delivered within a reasonable time. It was held that misconduct of the railway administration had not been proved. That was also a case where a risk note had been executed. The learned Judge, who decided the case, held that:-
'The liability of the Railway Company is limited by the terms of the contract which provides that the railway administration shall not be liable for any loss except upon proof that the loss arose from misconduct on the part of the railway administration servants.'
6. In the case of AIR 1949 Cal 679 (supra), it was found that pilferage of the goods was due to defective packing and consequently the loss being due to defective packing the owner was held not to be entitled to any damages. The case of : AIR1933All460 (supra), is also a case of leakage of the wagon; but in that case what was to be proved was that the leaks in the roof were present at the time the goods were loaded. There was further proof that the holes in the roof were caused during the journey and so the damage by rain water was held not to be due to the negligence on the part of the railway servants, upon the established facts. In the present case the railway company has not proved the condition of the wagon from the guidance book. The wagon was found to be leaking at the time the delivery was taken and an unusually long time was taken during transit, that is one month and seven days. This factor alone is sufficient to raise a presumption of negligence on the part of the railway administration. It is not a case where there is any proof that the holes in the wagon were caused during the transit.Moreover, if the railway administration takes unduly long time in carrying the goods it has to account for the delay as well as for the damage which may be caused during this period.
In the case of : AIR1960Mad149 (supra) it was held that Section 74-A contemplates two contingencies and the onus is cast on the plaintiff to prove negligence and misconduct on the part of the railway administration. It further says that if the consignment was in a defective condition and the damage was due to the defective packing of the goods, the railway administration shall not be liable. It further lays down in paragraph 14, that:-
' Where the damage cannot be attributed either to defective, condition of the goods or the defective packing of the goods, the primary onus of a bailee to show that he had taken such care of the goods as a man of ordinary prudence would take in the case of his own goods must be discharged by the railway administration for denying relief to the plaintiff.'
7. This observation of the learned Judges isfully applicable to the present case. There is nodoubt that there was defective packing, but thereis nothing to show whether the damage to thegoods was due to it. The unusually long period takenin the delivery of the goods also remains unexplained and so the railway cannot be absolved from, itsliability of a bailee in such a case. In : AIR1951All489 (sftpra), the learned single Judge while discussing the two contingencies of Risk Note FormA, that is bad condition of goods at the time ofdelivery and damage, leakage etc., in transit, heldthat where it was found that there was shortagein the goods delivered and one of the bales wascut and there was no evidence led on behalf of therailway to show how the goods had been handled intransit and the shortage was also not due to anydefective packing, then the risk note does not affordany protection to the railway administration. Thelearned District Judge, therefore, cannot be saidto have taken a wrong view in the case.
8. The revision must, therefore, fail and is dismissed with costs. Record of the case shall be sent back to the Court below forthwith.