Shiv Dayal, J.
1. The respondent's suit was for the recovery of Rs. 579.59 on account of short delivery and damages against the Union of India, represented by the South Eastern Railway, the Central Railway and the Western Railway. The suit consignment was booked from Panelimoti to Raigarh vide railway receipt Ex. D-3 and forwarding note Ex. D-5. Out of 660 tins of groundnut oil, 17 tins were damaged, 9 tins were completely crushed and the contents of 8 tins weighed only 80 kgs. It has been found by the trial Court that there was short delivery of 13 tins and 4 kgs. of oil, the value of which was Rs. 554.59 P. It passed a decree for the entire amount claimed.
2. It was averred in paragraph 5 of the plaint that the consignment wasbooked at railway risk rate. This was denied in paragraph 5 of the written statement and it was contended that the consignment was booked at the owner's risk rate.
3. It was argued for the petitioner that since the railway receipt clearly shows that it was booked at owner's risk rate, it was, for the plaintiff to prove, in the first instance, that there was negligence or misconduct on the part of the railway administration or any of its servants within the meaning of Section 73 of the Railway Act.
4. Under Section 11 of the Railway Act, 1854, the railway company was answerable for loss or injury, when it was caused by gross negligence or misconduct on the part of their agents or servants. This continued to be the case until the Carriers Act, 1865, was passed.
5. The Ralways Act of 1879 repealed the provisions of the Carriers Act AS regards the railway and the liability was that of the insurer.
6. The Railways Act of 1890 substituted the obligation of an insurer by the obligation of a bailee. Now by Act No. 39 of 1961, new sections have been introduced in the last mentioned Act so that the basic liability of the railway is that of a carrier or an insurer. The railway is primarily liable for loss, destruction, deterioration, etc. and the burden of proof is on the railway to escape from that liability. In proper oases, the Court may make a presumption under Section 114, illustration (g) of the Evidence Act. However, an exception is made where the goods are booked at the owner's risk rates. In the latter case, the railway administration is not liable except on proof that the loss, damage, deterioration, etc. was due to the negligence or misconduct on the part of the railway administration or its servants.
7. It is contended by the learned counsel for the petitioner that since the consignment was booked at the owner's risk rate, it was for the plaintiff to prove negligence or misconduct within the meaning of Section 74. Shri Verma learned counsel for the plaintiff strenuously contends that although the words 'owner's risk' appear on the railway receipt, as there were no two rates prescribed for groundnut oil, it must be said that the consignment was booked at the railway risk rate.
8. Section 42 of the Railways Act confers on the Central Governmentpower to classify or reclassify any commodity.
9. Section 29 enacts that the Central Government may, by general or special order, fix maximum and minimum rates for the whole or any part of the railway and prescribe the conditions in which such rates will apply.
10. In Chapter VIII of the Goods Tariff (Part I) at page 316, groundnut oil is mentioned in Division D -- 'Oils'. Shri Verma's argument is that there is only one rate prescribed for groundnut oil. It must, therefore, be the railway risk rate. Reliance is placed on Union of India v. Brijlal, AIR 1969 SC 817 and Union of India v. Sadhu Ram, AIR 1967 Pat 425.
11. It will be useful to refer to certain provisions of the Railways Act:
(1) Under the Indian Railways Act, 1890, as it stood before the amendment Act No. 39 of 1961, the liability of the railway administration was that of a bailee. But by virtue of the amendment Act No. 39 of 1961, the liability of the railway administration is now that of a common carrier.
(2) The principle that a common carrier is liable as an insurer of goods was laid down more than 200 years ago in England in Coggs v. Bernard, (1703) 2 Ld Raym 909 at p. 918, in which Holt, C.J., said:--
'The common carrier for reward is entrusted to carry goods against all events but acts of God and of the enemies of the King.' However, extensive provisions have been made in the Indian Railways Act to relieve the railway administration of its basic liability as common carrier.
(3) The amendment Act No. 39 of 1961 seeks to lay down the basic responsibility of the railway with reference to three periods of time during which the goods may be in its possession: (a) Upto the termination of transit, i.e., upto the time allowed for unloading from the railway wagons without payment of demurrage; (b) within the period 30 days after the termination of transit; and (c) after 30 days after the termination of transit. Sections 73 and 74 lay down the basic responsibility during (a) and Section 77 during (b) and (c).
(4) Section 73 enacts the general responsibility of the railway administration. It is responsible for the loss, damage, deterioration, etc., in transit, which mayarise from any cause, except those enumerated in Section 73 (a) to (i).
(5) Where the loss, damage, etc., is due to any of the causes enumerated in Section 73 (a) to (i), the railway administration will not be liable, if it proves that it has used reasonable foresight and care in the carriage of animals or goods. But if that is not so proved, then the railway administration is not relieved of its general responsibility for loss, damages, etc. although it was due to any of the causes enumerated in Section 73 (a) to (i).
(6) An exception to the above rule is that if animals or goods are tendered to be carried at the 'owner's risk rate', then the railway administration shall be liable only upon proof that the loss, damage, deterioration, etc., was due to negligence or misconduct on the part of the railway administration or of any of its servants. However, in order that the railway administration may avail itself of the benefit of this exception, which is contained in Section 74 (a), it has to prove that it has prescribed two different tariff rates for the carriage of animals or goods concerned, namely, (a) the ordinary tariff rate (also called the railway risk rate) and (b) special reduced rate, (also called the owner's risk rate). The ordinary tariff rate is railway risk rate. The question of owner's risk rate arises only when there are two rates prescribed but not otherwise. If it is proved that there are two such rates, then it is for the plaintiff to prove that the sender or his agent elected in writing to pay the railway risk rate in which case the railway administration must issue a certificate to the consignor to that effect.
(7) If the railway administration does not plead or prove that two rates of tariff have been provided, the case does not fall within the exception contained in Section 74 and the railway administration will be liable in terms of general responsibility as laid down in Section 73. See Union of India v. Sadhu Ram (AIR 1967 Pat 425) (supra).
12. The true position of the law as regards the responsibility of the railway in respect of goods or animals carried by it under the Railways Act, as amended by Act No. 39 of 1961, may be summed up thus:--
(1) The basic responsibility of the railway, which was that of a bailee under the Railways Act of 1890, has been substituted by virtue of amendment ActNo. 39 of 1961, by the responsibility of a common carrier akin to an insurer (Section 73). However, certain provisions have been made to relieve the railway administration of this basic responsibility (Section 74 and the following section which are in the form of exceptions).
(2) The general responsibility under Section 73 for loss, damage, non-delivery, etc., in respect of goods or animals carried by it is of the railway. The railway is always responsible whether or not there was negligence or misconduct on the part of the railway administration or any of its servants. The railway is responsible whatever may be the cause. This is subject to certain exceptions, two of which may be mentioned here :
(i) One exception is that if loss, destruction, etc., arises from any of the causes enumerated in Clauses (a) to (i) of Section 73 (i.e. act of God, act of war, latent defect, fire, explosion or any unforeseen reason, etc. etc.), then the railway is not liable. Provided it further proves that it has used reasonable foresight and care in the carriage of the animals or goods (Section 73).
(ii) Another exception is when goods are booked at the owner's risk rate, in which case the railway administration is responsible only when it is proved that the loss, damage, non-delivery, etc., in transit of animals or goods was due to the negligence or misconduct on the part of the railway administration or any of its servants; but not otherwise.
(a) However, to avail itself of the benefit of this exception, the railway must prove that there are two rates prescribed for the particular goods or animals in question; (i) Ordinary tariff rate (also called railway risk rate); and (ii) special reduced rate (also called owner's risk rate). If such two different rates are not prescribed, the goods must be deemed to have been booked at the railway risk rate, no matter whether on the railway receipt the letters 'OR' or the words 'owner's risk rate' have been written, because the booking officer has no authority in law to enter into any such special contract with the consignor.
(b) In such a case, the goods would be deemed to have been tendered to be carried at railway risk rate.
(c) But the railway cannot avail itself of this exception, if the sender or his agent has elected in writing to pay railway risk rate prescribed. In such acase, the railway administration is bound to issue a certificate to the consignor to that effect. Once the goods are booked at the railway risk rate, the exception does not come into play and the railway is responsible as under Section 73 (see Section 74).
13. Shri Pandey, learned counsel for the petitioner strongly argues that in the present case, the goods were actually booked at the owner's risk rate. Learned counsel relies on the letters 'OR' which stand for 'owner's risk' in the railway receipt (Ex. D-4).
14. In the present case, there is no pleading or proof that there were two different rates for groundnut oil within the meaning of Section 74 of the Act. The exception, therefore, has no application to this case. It will be deemed that the consignment was booked at ordinary tariff rate (railway risk rate) so as to at-tract the general responsibility of the railway administration under Clause 73.
15. On the contrary, Shri Verma has shown me from Chapter VIII of the Goods Tariff Rules, 1965, General Classification of Goods, in which groundnut oil stands at page 316 in Division 'D'. The scheme of the rules is that where the letters 'O R' are written in the schedule, there are two different rates within the meaning of Section 74 of the Act. But where the letters 'O R' are not written, there is only one rate and that rate is railway risk rate. As against groundnut oil, the letters 'O R' are not there. Therefore, there was only one rate and that rate was railway risk rate. That being so, the letters 'O R' on the railway receipt are without meaning. If the consignor was charged and he paid the railway risk rate within the meaning of the law, the case cannot be brought within the exception.
16. Shri Pandey further contends that under the statutory provision under Section 92 of the Evidence Act since in the railway receipt and the forwarding note it is specified that the consignment was booked at owner's risk rate, no oral evidence can be produced to contradict, add to or subtract from the terms of the contract. As I have already pointed out, the statutory provisions are that unless there are two rates prescribed for a particular commodity, no question of owner's risk rate arises. A station Master or any other railway authority has no power or authority in law to enter into any such agreement with the consignor thatthough the railway has not prescribed owner's risk rate, yet the Station Master can create and substitute one Section 92 of the Evidence Act is not in point at all, inasmuch as the question is not whether any oral evidence is admissible. The view that I take is based on the provisions contained in the statute and not on any witness's evidence.
17. In the result, the revision is dismissed with costs.