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Union of India (Uoi) Vs. Shankerlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 843 of 1970
Judge
Reported inAIR1972MP201; 1972MPLJ843
ActsRailways Act, 1890 - Sections 74(3) and 76
AppellantUnion of India (Uoi)
RespondentShankerlal
Appellant AdvocateB.K. Pandey, Adv.
Respondent AdvocateN.C. Jain, Adv.
DispositionRevision dismissed
Cases Referred and Neta Ram v. Jiwan Lal
Excerpt:
- - 3. the learned trial judge held that the betel leaves which were booked were in good condition and the defence to the contrary could not be accepted. . air 1961 sc 1170 their lordships, recalling the well-known rule of construction that general provitions yield to special provisions observed that this rule is applicable to resolve not only a conflict between the general provision in one act and the special provision in another act, but also the conflict between general and special provisions in the same legislative instrument, their lordships said:.....any of its servants'.it is not contended on behalf of the plaintiff that any evidence was given to prove negligence or misconduct on the part of the railway administration. in fact that case was not even pleaded.5. shri jain, learned counsel for the respondent, relies on section 76 of the railways act, which provides as follows:'a railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants'.6. on an examination of the scheme of the railways act and the provisions contained in sections.....
Judgment:
ORDER

Shiv Dayal, J.

1. This revision under Section 25 of the Small Cause Courts Act is from a decree for Rs. 117/- passed by the 1st Civil Judge, Class II, Seoni.

2. On November 2, 1967, two baskets containing 30 Kgs. of betel leaves were consigned from Golanthara railway station (South Eastern Railway) to Seoni (South Eastern Railway). Actually they reached Seoni on November 6, 1967, The plaintiff's case is that there was abnormal delay owing to which the betel leaves became rotten. The plaintiff claimed Rs. 117/- as damages.

3. The learned trial Judge held that the betel leaves which were booked were in good condition and the defence to the contrary could not be accepted. On the evidence of Shankarlal (P. W. 1), the plaintiff himself, a decree for Rupees 117/- was passed.

4. In this revision it is contended for the defendant that the plaintiff did not prove any misconduct or negligence on the part of the railway administration without which a decree in favour of the plaintiff could not be passed. Reliance is placed on Section 74(3) of the Railways Act. It is not in dispute that the goods were booked at the owner's risk rate. Section 74 (3) enacts:--

'When any animals or goods are deemed to have been tendered to be carried, or are carried, at the owner's risk rate, then, notwithstanding anything contained in Section 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the Dart of the railway administration or any of its servants'.

It is not contended on behalf of the plaintiff that any evidence was given to prove negligence or misconduct on the part of the railway administration. In fact that case was not even pleaded.

5. Shri Jain, learned counsel for the respondent, relies on Section 76 of the Railways Act, which provides as follows:

'A railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants'.

6. On an examination of the scheme of the Railways Act and the provisions contained in Sections 73. 74 (3) and 76, it is clear that Section 76 is a proviso to Section 74 (3), which is a general provision. Section 74 (3) governs all cases of loss, destruction, damage, etc. whatever may be the cause, while Section 76 is a special provision which applies only to cases of delay and detention. Therefore, the rule of construction of statutes, generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa (a general clause does not extend to those things which are included in previous special words), or shortly stated generalibus specialia derogant (special things derogate from general) comes into play. In J. K. C. S. & W. Mills v. State of U. P.. AIR 1961 SC 1170 their Lordships, recalling the well-known rule of construction that general provitions yield to special provisions observed that this rule is applicable to resolve not only a conflict between the general provision in one Act and the special provision in another Act, but also the conflict between general and special provisions in the same legislative instrument, Their Lordships said:--

'The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect'.

7. If the owner proves that there was any loss, destruction, damage or deterioration caused by delay or detention, then the burden shifts on the railway administration to prove that thedelay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. To put it differently. Section 76 requires the owner to prove that there was delay or detention which caused loss, destruction, damage or deterioration. When the owner succeeds in doing so, then it is for the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. It follows from this analysis that where the owner does not prove delay or detention, as required Under the first part of Section 76, then the owner has to prove negligence or misconduct as is required by Section 74 (3).

8. There is nothing in Section 74 (3) or Section 76 to show that the latter is controlled by the former. If the intention of the ' legislature had been otherwise, nothing would have been easier for the framers of the law than to add in Section 74 (3) the words 'or Section 76' after the words 'Section 73', which would then have read as 'nothing contained in Section 73 or Section 76'. To interpret Section 74 as the learned counsel for the petitioner wants to, will mean that something will have to be added to Section 74 (3), so as to exclude the operation of Section 76 in cases where the goods or animals are booked at the owner's risk rate. This will be doing violence to the section, which will be wholly unjustified. In my opinion, the provisions contained in Section 74 (3) and Section 76 must be harmoniously construed. I am. therefore, of the view that the application of Section 76 of the Rail-Ways Act cannot be restricted to cases Where goods or animals are booked at the railway risk rates.

9. The principles underlying Section 74 (3) is that where goods are booked at the owner's risk rate, it is the owner's own liability in case of loss, destruction, etc. and there is no liability of the railway. But the owner's risk does not extend to loss, destruction, etc. being caused by misconduct or negligence of the railway administration, or any of its servants. Therefore. Section 74 (3), while enacting a general rule that in case of booking at the owner's risk rate, the risk is of the owner and the railwav is not liable, provided that the railway will be liable if such negligence or misconduct is proved.

10. The reason of the rule contained in Section 76 is, if a thing is not done within a reasonable time, the delay or detention is either deliberate or due to carelessness. In the former case, it is misconduct; in the latter case, it is negligence. In other words, delay or detention is per se indicative of misconduct or negligence. However, delay or detention is not conclusive proof or misconduct or negligence. One can still explain by showing the circumstances in which the detention or delay occurred, so that there was neither misconduct nor negligence. Therefore, Section 76 makes an initial presumption of misconduct or negligence in case of delay or detention, and then places the burden on the railway to prove that such delay or detention occurred without there being any misconduct or negligence.

11. On the above analysis, both Sections 74 (3) and 76 can be read together and given simultaneous effect.

12. The above discussion may be summed up thus :--

(1) Section 76 carves out an exception to Section 74 (31 in cases of loss, etc., being caused by delay or detention in the carriage of animals or goods. This is irrespective of whether the goods or animals are booked at the railway risk rate or the owner's risk rate. (2) The combined effect of Sections 74 (3) and 76 is this. Where goods or animals are booked at the owner's risk rate: (a) in the first instance, the owner must prove (unless it is admitted) that there was delay or detention which caused loss, destruction, damage or deterioration; (b) if such delay or detention is admitted or proved, then it is for the railway administration to prove that the delay or detention arose without negligence or misconduct On the part of the railway administration or of any of its servants; and (c) if such delay or detention is neither admitted nor proved, the owner must prove that the loss, destruction, damage or deterioration was due to negligence or misconduct on the part of the railway administration or of any of its servants.

13. Applying these tests to the present case, it has to be seen whether there was delay or detention within the meaning of Section 76 of the Act. Shri Jain, learned counsel for the respondent, contends that detention at Raipur is admitted in the written statement. Reliance is placed on paragraph 3 (c) of the written statement where the course of transaction has been described. The material passage is as follows:--

'The train to which the 'Pan Bogie' is attached leaves Vijayanagaram at 7.50 Hrs. and reaches Raipur at 20.45 Hrs. where the bogie__is kept_at_the_siding. It is then attached the next day to train No. 409 DN which is a parcel tram and which leaves Raipur at 17.45 Hrs. The 'Pan' bogie is not attached to the earlier train from Raipur due to operational difficulties'.

(Underlined by me)

It is clear from this admission in the written statement that the goods weredetained at Raipur from 20.45 Hrs. of the day when they reached there, to 17.45 Hrs. of the following day. As soon as detention is admitted the second part of Section 76 of the Railways Act comes into play. It is then for the railway administration to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. The written statement no doubt makes an elaborate statement of the 'operational difficulties' pleaded in the above quoted passage. Those difficulties have been described in the written statement as follows:--

'These earlier trains are either Mail, Express or Passenger trains. They reach Raipur with full capacity and since there is considerable risk in overloading the engine no further wagon can be attached to it. Moreover, attaching the Bogie to the earlier train will necessitate shunting both at Raipur and at Gondia. Shunting takes about 1/2 an hour and the aforesaid trains halt at these places for not more than 15 minutes. Moreover, the wagon will block the main line at Gondia. Parcel train is a special reason (train) for carrying parcel wagon. This parcel train reaches Gondia the next day, i. e. the 4th day at 0.40 Hrs.'

Now. it is not sufficient to plead want of negligence or misconduct. Section 76 requires that want of negligence or misconduct must be proved. The defendant led no evidence in the present case to prove the explanation of 'operational difficulties' furnished in the written statement. That being so, the plaintiff is entitled to the benefit of Section 76 of the Act and is relieved of the burden under Section 74 (3) of the Act.

14. Shri Pandey strenuously relied on a decision of Mr, Justice Tare in Union of India v. Jeewanlal, Civil Revn. No, 904 of 1970, D/- 5-4-1971 (Madh Pra), where, in similar circumstances, the suit for recovery of damages in respect of betel leaves was dismissed. I have carefully gone through that decision. It is abundantly clear that the learned counsel, who appeared for the plaintiff in that case, did not place for consideration before Mr. Justice Tare the question of the effect of Section 76 of the Railways Act. It appears that all that the learned counsel concentrated upon was whether delay of a day or two was unreasonable so as to amount to negligence or misconduct within the meaning of Section 74 (3) of the Railways Act,

15. It is axiomatic that a decision is an authority for the question of law which it decided and not for a question which was not considered or raised. A case cannot be an authority on a point of fact; each case has to be examined inthe light of the circumstances existing in it. See Prakash Chandra v. State of U. P., AIR 1960 SC 195 and Neta Ram v. Jiwan Lal, AIR 1963 SC 499. Salmond says:--

'A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it; but it is the abstract ratio decidendi which alone has the force of law as regards the world at large'. Authur L. Goodhart has formulated the following rules for finding the principle of a case:--

'(1) The principle of a case is not found in the reason given in the opinion.

(2) The principle is not found in the rule of law set forth in the opinion.

(3) The principle is not necessarily found by a consideration of all the ascertainable facts of the case and the judge's decision.

(4) The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them.

(5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the judge, fop the principle may depend as much on exclusion as it does on inclusion'.

(Jurisprudence in Action, P. 221)

16. On the question of quantum, the plaintiff stated on oath that the prevalent market rate at the material time at Seoni was Rs. 4/- per kg. This evidence was not controverted. The trial Court has accepted it. I see no reason, to take a different view.

17. For these reasons, this revision is dismissed with costs. Counsel's fee Rs. 25/-.


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