S. Barman, J.
1. Defendant No. 1 Union of India as owner of South Eastern Railway is the appellant. The suit out of which this appeal arises was filed by the plaintiff against the Railway and also against the consignor defendant 2, Calcutta Cycle Supply Co. of certain goods from Calcutta for a decree for Rs. 2198.10 nP. for alleged short delivery. The plaintiffs case is that on April 12, 1953 seven cases of Cycta parts were booked from Shalimar for delivery at Cuttack. The Railway receipt Ext A described the goods as:
'Seven cases said to contain cycle parts.'
When the goods were unloaded, one out of the seven cases was found broken; the remaining six were sound cases intact with no defect. It was discovered at the time of unloading that the broken case contained cycle parts and there was practically no shortage. In the sound cases, some foreign materials like bricks intermingled with cycle parts were found. This will appear from the unloading register Ext B. The plaintiff filed the suit on the ground of alleged short delivery. In defence the railway repudiated the plaintiff's claim stating that there was no shortage in the broken case and the alleged shortage was in respect of the six cases found intact with no defect, and accordingly the railway is not liable. The defence of defendant No. 2 Calcutta Cycle Supply Co. is to the effect that it packed the goods all right and there was no fraud or misconduct on its part as alleged.
2. The trial Court decreed the plaintiff's claim in full against the Railway and dismissed the suit against the consignor defendant. In appeal the learned lower appellate Court upheld the decision of the trial Court. Hence this second appeal.
3. Section 74-D (b) of the Railways Act is this:
'Notwithstanding anything contained in Section 74-C,--
xxxxx (b) Where in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor.'
In the present case the unloading register shows that out of seven cases, six cases reached the destination intact with no defect. None of these cases were pilfered in transit. With regard to these six cases, the Railway has no responsibility to disclose how they were dealt with throughout the time they were in railway's possession or control. None of these six packages appeared to have been tampered with. It is quite clear from Section 74-D (b) that when a consignment consists of cases or packages, as in the present case, it must be so covered or protected that the covering or protection is not readily removable by hand. Each case or package is an independent unit of consignment. So long as the cases are intact, the Railway is not in any way responsible for any shortage.
It is well settled that where goods are booked by the consignor and the information given by the consignor is accepted as correct for purposes of charging freight, and receipt is made out in the same way as in this case 'Seven cases said to contain cycle parts', there is no admission on the part of the Railway authorities that the cases contained the contents as described in the receipt (cycle parts in the, present case) and if at the destination the cases are found to contain less number or quantity than what was mentioned in the receipt, the Railway administration is not liable: Dominion of India v. Firm Museram Kishunprasad, AIR 1950 Nag 85, followed in Union of India v. S.P.L. Lekhu Reddier, AIR 1956 Mad 176.
4. What the Courts below, in the present case, missed was the unit character of each case or package as an independent consignment. There is nothing to show that any of the packages found intact with no defect had been pilfered in transit. The view that the learned lower appellate Court took was this:
'Admittedly at least one package had got damaged with the planks broken, gunny covering torn and materials seen. Of course, nothing was found short from package. But all the same it is an indication of the fact that during the time the goods were in charge of the railways at least one package had been badly damaged xx xxxxx this damaged package (referring to the 7 cases other than the six cases found intact with no defect) and absence of evidence as to why or how the things were dealt with during the time they were in the custody of the defendant 1 (railway) show that there was possibility of the articles being tampered with during or before they were really consigned (meaning delivered).'
It is apparent that the learned lower Courts below did not keep in view the provisions of Section 74-D (b). With regard to these six cases found intact, each as an independent unit of consignment, the learned courts below should have found that the railway was not responsible.
5. As regards the seventh case found damaged, the finding of the learned lower appellate Court was that although the said package had been badly damaged yet nothing was found short from the said package. It was fairly conceded by Mr. B.K. Pal, learned counsel for the railway that if in fact there is any shortage with regard to the damaged package, then certainly the railway is liable for the same. Therefore for ascertaining whethsr there was any shortage with regard to the said one damaged package it will be necessary to remand the case to the trial court to ascertain whether there was any shortage in the said particular damaged package and, if so, to fix the amount of damage for such shortage, if any.
6. It was submitted, on behalf of the plaintiff, that if the claim against the railway fails then there should be a decree against the consignor defendant No. 2 Calcutta Cycle Supply Co., for fraud and misconduct before booking of the consignment. An issue was raised before the trial Court being issue No. 5-
'Is there any misconduct or fraud on the part of the defendant No. 2 in booking the consignment?'
On this issue the learned trial Court held that there way no misconduct or fraud on the part of defendant 2 in booking the consignment. The learned lower appellate Court did not disturb this finding. In view of this concurrent view that there was no fraud or misconduct on the sart of defendant No. 2 there can be no decree against The defendant No. 2.
7. In the result therefore the decision of the courts below as against the railway is set aside. With regard to the six cases found intact with no defect, the plaintiff's claim as against both the defendants 1s dismissed. As regards the said one damaged package, this case is directed to be sent back on remand to the trial Court to ascertain whether there was any shortage in respect thereof and, if so, to fix the amount of damage for such shortage if any, and to decide and dispose of the case confined to the said one damaged package, according to law. This appeal is accordingly allowed with costs through out which will be payable by the plaintiff respondent to appellant railway defendant No. 1. As the respondent defendant No. 2 has not appeared herein, it is not entitled to costs of this Court.