P.C. Misra, J.
1. The defendant in M. S. No. 75 of 1968 of the court of the Subordinate Judge, Bolangir is the appellant in this appeal. The suit was for realisation of Rs. 7936, 64 p. towards the damages for short delivery of groundnut oil dispatched in a wagon of the defendant-railways and for consequential loss suffered by the plaintiff and for interest.
2. The plaintiff's case in short is that it is a registered partnership firm running its business under the name and style Krishna Stores having its place of business at Kantabanji. It is alleged that a consignment of 660 tins of ground-nut oil were dispatched from ex-Navagadh by Saurastra Oil Mill to be delivered at Kantabanji Railway Station in a wagon as per R/R No. B. 54309 dated 30.3.1965, for being carried by the defendant-railways as a carrier at the railway risk rate. It has been alleged that the said ground-nut oil tins were delivered to the defendant-railways at the point of dispatch in properly packed condition providing for necessary damage and the said fact was duly noted in the R/R by the Railway authorities. It has been also alleged that the wagon containing the said consigned goods was changed at Kankira Railway Station at the instance of the Railway authorities. At the point of delivery one of the partners of the plaintiff's firm took delivery of the consigned goods on 23. 4, 1965 when it was found that the seal of the said wagon has been tampered with and 24 tins of groundnut oil and the two empty tins meant for damage were missing. It was further found that 226 tins were dented, joints opened and were leaking. Besides the above loss, 252 tins were also found dented though the contents thereof were intact. The rest of the tins were in good condition. A shortage and damage certificate was granted by the Station Master, Kantabanji Railway Station on 23. 4. 1965, in which above mentioned loss and shortage of the goods found mentioned. The plaintiff alleges that the missing of the groundnut oil tins and the shortage as mentioned above was due to the negligence, misconduct and carelessness of the railway people and the Railway authorities are therefore, liable to compensate the plaintiff. In the schedule of claim appended to the plaint the details of the claim have been mentioned. According to the plaintiff, he sent a notice under Section 78-B of the Railways Act to the defendant in response to which a sum of Rs. 767.99 p. was paid towards the non-delivery of the missing tins though, according to the plaintiff, the paid amount does not cover the full amount payable on that account. The extra amount payable on that head has also been included in the schedule of claim. The plaintiff's claim for short delivery due to leakage of tins was not considered by the railway authorities for which a notice under Section 80 C. P. C. was served on the defendant where after the present suit has been filed.
3. The defendant-railways in its written statement admitted that the consignment was accepted for carriage at the booking station though the other plaint allegations have been denied. It was further alleged that the suit is bared by limitation and the plaintiff is not entitled to the amount claimed. According to the defendant, the suit deserves to be dismissed with costs to the defendant.
4. The learned Subordinate Judge framed as many as six issues. The plaintiff examined one of its partners whereas the defendant did not examine any witness. Several documents were also proved by the plaintiff. The Subordinate Judge after analysing the evidence on record came to the following findings:
(a) That the plaintiff is a registered firm.
(b) The suit consignment was booked at the Railway risk rate which does not absolve the responsibility of the railway as contemplated under Section 74 of the Indian Railway Act.
(c) That the prescribed packing conditions were complied with in respect of the consigned goods at the time when the goods were entrusted to the defendant at the dispatching. Railway Station.
(d) The defendant-railway has failed to prove the facts which are necessary to absolve itself for the damages and shortage: of the consigned goods.
(e) The damage and shortage of the goods in question was due to the negligence and misconduct of the Railway administration and, therefore, the defendant is liable for the same.
(f) The suit has been filed within the prescribed period of limitation.
(g) The theory of contributory negligence would not apply in the facts and circumstances of the case and hence the plaintiff is entitled to a decree.
5. The learned Subordinate Judge decreed the plaintiff's suit for Rs. 6769. 98 P, with proportionate costs which includes interest at Rs. 100/- Pendent elite and future interest was also allowed at the rate of 6 percent per annum on Rs.6659. 98 p.
6. Various grounds have been taken by the defendant in this appeal challenging the correctness of the said judgment. The points urged in this appeal by the appellant, in our opinion, would not absolve the liability of the appellant for the loss or injury caused to the goods in course of the transit.
7. The character of the liability of the Railways has now been changed under Section 73 (as substituted in the year 1961) from that of a bailee to the responsibilities of a common carrier. In other words the Railways are liable as a common carrier for the loss or injury to the goods in the course of transit, unless the loss or damage is due to the causes enumerated in clauses (a) to (i) of Section 73. Section 74 (2) makes it clear that if the goods are booked at the Railway risk rate, the liabilities of the Railway Administration are absolute, and in such a case the claimant is not required to prove that the loss, destruction, damage, deterioration or non-delivery was a consequence of the negligence or misconduct on the part of the Railway Administration. It was, however, urged by the appellant that the prescribed packing conditions were not followed by the consigner in respect of the consigned goods for which the Railway Administration would not be liable for the loss or damage. It has been found as a fact by the trial court that the proper packing conditions were observed at the time when the goods were entrusted to the Railways for carriage and the said finding is based on legal evidence. The defendant-Railways has not chosen to examine any witness to prove that the prescribed packing conditions were violated by the consigner. Thus, we do not find any substance in the aforesaid contention raised by the appellant. In order to escape from the liability the Railway is required to prove that the loss, damage, etc. was due to any of the causes enumerated under clauses (a) to (i) of Section 73 and that it had used reasonable foresight and care in the carriage of the goods. There is no evidence at all on behalf of the defendant-Railways in that behalf and thus it cannot be relieved of its general responsibilities as a common carrier and would be liable for the loss and damage.
8. The appellant has relied upon a decision reported in A.I.R. 1963 Orissa 41, Mangilal Kedia and Anr. v. Union of India and Ors., in support of the contention that the plaintiff was also negligent in not following the instructions issued by the Railway in the matter of packing of the consignments for which there was contributory negligence on his part. On a plain reading of the said decision it would be seen that the facts leading to the conclusion of the contributory negligence in that case are absent in this case. It was found in that case that the tins of castor oil which were booked by the consigner were not packed according to the instructions issued by the Railway. It was also found that the consignment was packed in old tins. There is no evidence on record in this case to arrive at a similar conclusion. As already stated, the prescribed conditions for packing were duly complied with by the consigner and no part of the negligence can be attributed to the plaintiff. Our conclusion, therefore, is that the theory of contributory negligence has no application whatsoever to the facts of this case.
9. The last point that was urged on behalf of the appellant is that the plaintiff having accepted a part of the claim, the suit is misconceived and it shall be deemed that he had received the payment in full and final satisfaction of all his claims. There is no force in this contention of the appellant in as much as that the claims made in the suit have never been abandoned by the plaintiff. The Railways paid for the lost tins and did not pay for the loss due to leakage for which notice under Section 78-B- of the Indian Railways Act was served on the defendant. At no point of time the plaintiff can be said to have waived his claim in respect of the damages claimed in this suit. There is no other evidence for an inference that the payment which the plaintiff had admittedly received was in final settlement of all his claims.
10. In the result, there is no merit in. this appeal, and accordingly the same is dismissed. The judgment and the decree passed by the trial court are maintained. There would, however, be no order for costs of this appeal.