A.P. Sen, J.
1. This is an appeal by the Union of India as representing the Central Railway directed against the decree of the Additional District Judge. Satna, dated 29th February 1964, reversing the decree passed by the Civil Judge, Class II, Satna, dated 22nd December 1959.
2. Briefly stated, the facts of the case, are: The plaintiffs brought a suit for recovery of Rs. 1222.08 P. as damages caused to a consignment of black tin plates by the negligence and/or misconduct of the employees of the Union of India. The consignment was loaded by the consignor on 30th August 1957, at the tin plate Siding. Tata Nagar, on the South-Eastern Railway, which was the contracting railway, in a wagon indented for by him. The consignment was carried in N W T wagon No. ER 5908 under R/R No. 521447 dated 30th August 1957, to the Satna Railway Station on the Central Railway for delivery to the plaintiffs. The unloading of the goods was in the consignee's presence and the seals were admittedly found intact at the destination. There is no dispute that there was no transhipment of the goods anywhere during transit over the different Railways, but when the wagon was opened at the destination, it was found to contain water. As per Damage Certificate. Exhibit P-2, the extent of damages to the tin plates was estimated at Rs. 1222-08 P. On these facts, the first Court dismissed the claim against both the Railway Administrations, but the suit has been decreed against the Central Railway in appeal.
3. The appellant, Union of India, firstly contends that the liability of the Railway Administration concerned, was undoubtedly the liability of a bailee of the goods under Sections 151, 152 and 161 of the Indian Contract Act, but there was no kind of special duty to provide for a waierfight wagon. There was no specification by the consignor that a wagon of particular type was wanted. The person loading the wagon. G. P. Bose (P. W. 3) does not suggest that the wagon was not in a good condition. On the contrary, G. P. Bose admits that the wagon supplied was 'as per indent.' The loading of the tin plates was by the consignor at its Tin Plates Siding and there was no protest that a wrong type of wagon had been supplied. The tin plates were admittedly carried by a covered wagon.
4. The question for consideration is, whether the N W T wagon supplied was a proper type or not. The respondents are not right in suggesting that the Union of India had raised a special defence that the contract of carriage was for supplying of a N W T wagon. That allegation was in an answer to an averment in the plaint that negligence lay in supplying a N W T wagon, although the employees of the Railway Administration concerned, knew the kind of the goods which were likely to be carried and that the transit was to be during the rains, when the goods were likely to be damaged, by exposure to the inclement weather.
5. It is no doubt true that when goods are carried at the Railway risk, the special facts and circumstances under which the consignment was handled are only known to the Railway Administration, and, therefore, it is for them to place that material before the Court for forming its opinion on the question whether it had taken as much care of the goods as is required of them (See. Asaram. Gangaram. v. Union of India, New Delhi, AIR 1957 Nag 59). It follows that the Railway Administration had the duty of producing all available records and their non-production justifies the raisins of an adverse inference against them, nevertheless, their dutv does not extend to supply a particular type of wagon, meaning, a water tight wagon contrary to the indent. The burden of showing that a proper type of waeon was supplied, stands discharged by the evidence of G. P. Bose. that the wagon was supplied as per indent of the consignor. Nothing, therefore, turns on this aspect of the case.
6. Apart from this, the terms 'water-tight' is used as descriptive of a type of wagon and it is not to be understood as a guarantee that it is actually water-tight, although it is supposed to be so. See Secy. of State v. Laxminarayan, AIR 1933 Nag 1. When goods are despatched in a N W T wagon during the rains, the Rules no doubt require that normally the goods carried are to be covered by water-proof sheets. Had the plaintiffs been able to establish that the goods were despatched unprotected in a NWT wagon, a misconduct may have been possibly inferred, (See AIR 1933 Nag 1 (supra)). A strict observance of the rules is, however, not essential. All that is required is that they should be followed, wherever practicable.
7. The burden of proof was on the plaintiffs to establish that the loss occurred during transit of the wagon, on the delivering Railway. (See, Union of India v. Nawab Pandey. AIR 1964 Pat 383 and Union of India. Railway Administration, Madras v. Eastern Match Co.. Tirumangalam, AIR 1964 Andh Pra 172. No liability can possibly be fastened merely on account of damage by water percolating during a long journey. (See. Firm Brijlal & Co. v. B. N. Rly., 1946 Nag LJ (Note) 104 and Natwarlal Gowardhan Das v. Union of India, 1957 MPLJ 153 = (AIR 1957 Madh Pra 157)).
8. The appellant next contends that the supply of a wrong type of wagon may render the contracting railway, i. e., the South-Eastern Railway, liable, but no liability could be fastened on the Central Railway Administration which merely carried the wagon in the same condition, in which it was handed over. The wagon reached the destination with the seals intact, Their liability may have arisen if there was a transhipment of the goods on the way, and it was shown that at the transhipment point the goods were in good condition, but were found damaged at the destination. That is not the case here. When the wagon was a sealed wagon, it was no part of their duty to cause an inspection of the goods during transit. (See, Bengal Nagpur Rly, Co. v. Haji Latif Abdulla, AIR 1937 Cal 410).
9. The supply of a wrong type of wagon would undoubtedly render the contracting Railway liable, but if there was a breach of covenant on the part of the contracting Railway, that would not by itself, fasten any liability on the delivering Railway. The Central Railway Administration merely carried the goods to the destination. Although, the Court has ample powers under Order 41, R. 33 of the Civil Procedure Code to mould its reliefs according to the exigencies, and the claim could have been decreed against the South Eastern Railway, despite the fact that no appeal has been preferred by the plaintiffs, nevertheless, the suit itself was not maintainable against that Railway Administration for the reason that there was no notice served upon that Railway Administration under Section 77 of the Indian Railways Act. (See, Governor General in Council (Now Union of India) v. Musaddilal, AIR 1961 SC 725; Jetmull Bhoirai v. D. H. Railway Co.. Ltd., AIR 1962 SC 1879 and the Union of India v. Mahadeolal, AIR 19G5 SC 1755.)
In AIR 1962 SC 1879 (supra), the liability was no doubt fastened on the delivering Railway, but the facts were distinguishable. There was a transhipment of the goods during transit and they were, at the point of transhipment, admittedly in a good condition, but were found damaged at the destination.
10. The learned counsel for the respondents, however, contends that all the Railway Administrations are now State owned, and indeed, the South Eastern Railway and Central Railway are only the two different departments of the Union of India- If it is found that there was any misconduct and/or negligence on the Part of the South Eastern Railway, the Union of India which owns that Railway Administration, cannot escape liability. In support of this submission, strong reliance is placed on the judgment of Ganapatia Pillai J., in P. R. Narayanaswami Iyer v. Union of India. AIR 1960 Mad 58. There is no doubt that the view taken in AIR 1960 Mad 58 (supra), supports his contention. This contention cannot, however, prevail in view of the contrary decision taken in this Court by a Division Bench in Managing Agents (Martin & Co.) v. Deoki-nandan. AIR 1959 Madh Fra 276. holding that a notice under Section 77 of the Railways Act must be separately given to each of the Railway Administrations impleaded under Section 80 of the Act. It was indicated by their Lordships that this is because each Railway Administration is to be treated as a separate entity with separate existence and personality for the purposes of a suit under Sec. 80. The same view was previously expressed In Dominion of India v. Firm Museram Kishunprasad, ILR (1950) Nag 212 = (AIR 1950 Nag 85), The matter is now set at rest by the pronouncement of their Lordships of the Supreme Court in AIR 1962 SC 1878. namely:--
'Upon the language of Section 77 it would appear that a notice thereunder must be given to every Railway Administration against whom a suit is eventually filed'.
11. The appeal, therefore, succeeds, and is allowed. The decree of the lower appellate Court is set aside and the plaintiff's suit is dismissed with costs throughout. Counsel fee Rs. 100/-, if certified.