1. This is an appeal from the judgment of the Subordinate Judge of Baripada (Mayurbhanj) dismissing a claim made by the plaintiff appellants against the South Eastern Railway for damages on account of the loss sustained by him when a consignment of 660 tins of Mahua oil and 36 tins of castor oil was booked for him from Naini railway station in the Northern Railway to Rairangpur in South Eastern Railway under invoice No. 2 and R/R No. 175250 dated 22-4-58. It is an admitted fact that these tins were loaded in the wagon at Naini station by the consignor himself, Straw was spread on the floor of the wagon and the tins were packed and tied with rope. But, when the consignment reached Rairangpur on 20-8-58 it was found that several tins had fallen on the floor of the wagon, some of the lids of the mouth of the tins had given way and oil had leaked extensively. Open delivery was taken and it was noticed that 128 tins were found practically empty while another 160 tins were found half empty. Only 36 tins of castor oil and 416 tins of mahua oil were in good condition. Plaintiff claimed damages to the extent of Rs. 5192.23 nP being the cost of oil that was lost during transit and also the cost of empty tins and proportionate railway freight and other incidental charges. The main defence of the Railway administration was that the consignment was packed in old and used tins and not in accordance with the packing instructions made by the Railway and that the damage was mainly due to the defective packing. It was further urged that in the Railway receipt it was specifically mentioned that the tins used for packing had already been used once before. But the Railway receipt also shows that a special caution label was pasted on the wagon indicating that the wagon should not be loose shunted, but the witness for the Railway (D. W. 1) admitted that rough and heavy shunting might have taken place and that the leakage might have been caused thereby.
2. Thus though there is no direct evidence as to how the damage to the tins was caused during transit, the admitted position is that the consignment was packed in old tins. According to the instructions issued by the Railway Administration under Sec. 74 (A) (2) of the Railways Act under 'Goods Tarrif' (P/24) :
'oil must be packed in jars or bottles or tins or cartons enclosed' In cases, or in iron or steel drums, or in sound wooden barrels, casks or kegs'.
If the suit consignment had been packed in accordance with the aforesaid instructions and oldtins had not been used, damage might not have been caused. But at the same time it should be noticed that in view of the caution label having been affixed to the wagon and the evidence of the Railway's own witness D. W. 1 that the leakage might have been caused by rough and heavy shunting it must be held that there was also negligence in the part of the Railway administration in permitting loose shunting of the wagon.
3. Having regard to the aforesaid circumstances counsel for both sides agree that the quantum of damage awarded by the trial Court should be equally apportioned between the Railway and the appellant. The appeal is therefore allowed to the limited extent and the claim of the plaintiff is decreed for half the total amount claimed, namely half of Rs. 5192.23 nP., i.e. Rs. 2596.12 nP.
4. The plaintiff shall however get the entire costs of the trial court, in addition to interest at 6 per cent per annum on the aforesaid sum of Rs. 2596.12 nP from the date of institution of suit till the date of payment. But both parties will bear their own costs of this appeal.
5. I agree.