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Babu Oil and Flour Mills Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberS.A. No. 105 of 1975
Judge
Reported inAIR1980Ker90
ActsRailways Act, 1890 - Sections 77C
AppellantBabu Oil and Flour Mills
RespondentUnion of India (Uoi) and ors.
Appellant Advocate Velu Janardhanan, Adv.
Respondent Advocate K.P. Pathrose and; M.C. Cheriyan, Advs.
DispositionAppeal allowed
Excerpt:
.....- loading also done by railway but not by consignor - railways failed to explain cause of damage - railways directed to compensate petitioner. - - 6. section 77c of the act provides :(1) when any goods tendered to a railway administration to be carried by railway- (a) are in a defective condition as a consequence of which they are liable to damage, deterioration, leakage or wastage, or (b) are either defectively packed or packed in a manner not in accordance with the general or special order, if any, issued under sub-section (4), and as a result of such defective or improper packing are liable to damage, deterioration, leakage or wastage, and the fact of such condition or defective or improper packing has been recorded by thesender or his agent in the forwarding note, then,..........by boat from alleppey to cochin where they were unloaded from the boat and loaded into the railway wagon by the railway. the two consignments together constituted one single wagon-load. at itarsi d. w. 1 who is the unloading foreman opened the wagon. he found that 163 tins were damaged and oil had leaked out of them. the rest of the tins were in proper condition. whatever oil could be collected as sweepings was poured into empty barrels and the goods were finally delivered to the consignee at kanpur along with ext. p1 certificate of damage and short assessment memo. the plaintiff thereupon sent exts. p4 and p5 to the railway administration demanding a sum of rs. 8919.80 as compensation. as they refused to settle the claim, the plaintiff instituted the suit for damages.3. the.....
Judgment:

T. Kochu Thommen, J.

1. This appeal is brought by the plaintiff against the decree of the lower appellate court reversing the decree of the trial court which allowed the plaintiff's claim for compensation for the damage caused to the goods entrusted by him with the railway administration.

2. Two consignments, each consisting of 330 tins of oil, were entrusted by the plaintiff with the railway out-agency at Alleppey for carriage to Kanpur. The consignments were carried under Exts. D8 and D9 railway receipts which were Issued by the out-agency at Alleppey, Exts. D10 and D11 are the relative forwarding notes. The goods were carried by or on behalf of the railway administration by boat from Alleppey to Cochin where they were unloaded from the boat and loaded into the railway wagon by the railway. The two consignments together constituted one single wagon-load. At Itarsi D. W. 1 who is the unloading foreman opened the wagon. He found that 163 tins were damaged and oil had leaked out of them. The rest of the tins were in proper condition. Whatever oil could be collected as sweepings was poured into empty barrels and the goods were finally delivered to the consignee at Kanpur along with Ext. P1 certificate of damage and short assessment memo. The plaintiff thereupon sent Exts. P4 and P5 to the Railway administration demanding a sum of Rs. 8919.80 as compensation. As they refused to settle the claim, the plaintiff instituted the suit for damages.

3. The plaintiff's claim is resisted by the defendants on the ground that the goods were not properly packed before they were entrusted with the carrier. That the packing of the goods for the purpose of transhipment was insufficient appears to be clear from Exts. D8 to D11. Exts. D8 and D9 railway receipts contained the endorsement 'P/l and P/3 not complied (with)'. Exts. D10 and D11 contain the consignor's declaration 'Tins are not packed according to the railway rules'.

4. It is admitted by the defendants that reference to P/1 in Exts. D8 and D9 was a mistake. P/3 alone needs to be considered. P/3 is a reference to packing condition 3 under the General Rules contained in Goods Tariff (No. 32 Part 1) framed by the Railways under Section 77C of the Indian Railways Act, 1890 ('the Act'). P. 3 requires tin-plate containers to be water-tight and enclosed in wooden cases. Wooden cases are, however, unnecessary for wagon-load consignments not involving transhipment. P/3 provides:

'Outer packing of wooden cases wilt not be necessary in respect of the following :

(a) wagon-load consignments of oils, etc. tinplate containers weighing 2 kg. and over each and not involving transhipment provided dunnage, such as dry grass, hay, straw or ground-nut or paddy husk is used on the wagon floor, between successive layers of tins between the wagon doors and the tins and between the wagon walls of the wagon and the tins, in sufficient quantities so as to give protection to the tins.

The tins in each layer should be compactly loaded so that they do not shift in transit and tightly tied together by a coir rope passing through lifting rings on the tins so as to form a compact package.

Note. -- Saw dust pressed to a thickness of not less than 10 cm. could be used as a cushioning material on the floor of the wagon only'.

In the instant case it was understood that the consignments were to be carried by boat from Alleppey to Cochin for transhipment into the wagon. P/3 condition accordingly required the consignor to provide outer packing of wooden cases. Admittedly this was not done, as indicated in Exts. D8 to D11, and therefore the consignments were not packed in accordance with the railway rules for carriage involving transhipment; although the packing was, as the evidence shows, sufficient if there was no transhipment.

5. Carriage in the present case commenced at Alleppey. Admittedly the goods were carried at the risk of the carrier by boat from Alleppey to Cochin and by rail from Cochin to Kanpur. Carriage of the goods by boat from Alleppey to Cochin has to be regarded as carriage by the railway, for the definition of 'railway' under the Act includes 'boats and rafts which are used on inland waters for the purpose of traffic of a railway and belong to or are hired or worked by the authority administering the railway'. The goods were admittedly transhipped by the railway administration from the boat to the wagon at Cochin. This is in fact the case of the defendants.

6. Section 77C of the Act provides :

'(1) When any goods tendered to a railway administration to be carried by railway-

(a) are in a defective condition as a consequence of which they are liable to damage, deterioration, leakage or wastage, or

(b) are either defectively packed or packed in a manner not in accordance with the general or special order, if any, issued under Sub-section (4), and as a result of such defective or improper packing are liable to damage, deterioration, leakage or wastage, and the fact of such condition or defective or improper packing has been recorded by thesender or his agent in the forwarding note, then, notwithstanding anything contained in the foregoing provisions of this Chapter, the railway administration shall not be responsible for any damage, deterioration, leakage or wastage, or for, the condition in which such goods are available for delivery at destination, except upon proof of negligence or misconduct on the part of the railway administration or of any of its servants.'

7. The object of Section 77C and the rules framed in regard to package is to protect the railway administration in case where damage occurred for reasons connected with defective packing. Where damage is so caused, unless negligence or misconduct on the part of the railway administration is established, a claim for damages would be unsustainable. As the railway receipts and the forwarding notes in the instant case contained the endorsement that the packing conditions had not been complied with, the railway administration is not responsible in so far as the packing conditions applied, for any damage, deterioration, leakage or wastage except upon proof of negligence or misconduct on its part or on the part of its servants.

8. The relevant rules regarding package have dispensed with the outer packing of wooden cases where the consignments constitute a wagon-load and the carriage involves no transhipment Wooden cases, as the packing conditions indicate, are meant to protect the goods from the hazards of transhipment.

9. In the present case it is admitted that the two consignments formed a wagon-load, and that, even in the absence of wooden cases, no damage had occurred to the goods during transhipment. On this point, D. W. 5 who is the railway loading clerk at Cochin is emphatic. He says that none of the 660 tins loaded into the wagon at Cochin was damaged. He, however, says that dunnage was insufficient. R. 1510 of the Indian Railway Commercial Manual, Vol. II provides.

'(1) Wherever, under the tariff rules, loading is required to be done by the owner and provision of dunnage is compulsory, it should be seen that dunnage is provided by the owner in accordance with the instructions laid down in the tariff. Wherever these instructions have not been complied with by the consignor, the booking of such a consignment should be refused, the wagon being treated as under load and demurrage realised till the requisite condition is complied with by the sender. (b) On transhipment, the entire dunnage should be transferred to the new wagon into which the consignment has been transhipped and a note to this effect recorded in the transhipment register (Com./T.27). The dunnage bags thus transferred should be properly placed against both the flap doors as per instructions laid down in the tariff.'

Where the consignor himself is required to load the goods into the wagon and dunnage is compulsory, the dunnage has to be provided by him. Where, however, the loading is not done by the consignor but by the carrier himself, as it is admitted to be the position at the transhipment point at Cochin, the dunnage is not, under the rule, expected to be provided by the consignor. Ordinarily, in the absence of a rule to the contrary, dunnage is the responsibility of the carrier. In the absence of any provision requiring the consignor to provide dunnage even where the loading is done by carrier, as in the case of goods at the transhipment point, it has to be presumed that dunnage is the sole responsibility of the carrier. In any event the carrier has no case that the consignor was expected to load the goods into the wagon or provide dunnage at Cochin.

10. Under Rule 1510 the carrier has the right to refuse booking of consignments when proper dunnage is not provided by the consignor. Assuming that dunnage was expected to be provided by the consignor at the time of handing over the goods to the out-agency at Alleppey (although the carrier has no such case), the carrier had a right--nay, duty--to refuse to book the consignment and to treat the wagon as under load, and claim demurrage from the consignor. No such action was taken. The carrier is expected to make a note in the transhipment register in cases where the goods are transhipped as to the dunnage provided. In the instant case no transhipment register has been produced. In the absence of such register it has to be presumed that there is no entry inthe register as to any default on thepart of the consignor.

11. As stated by D. W. 5, notwithstanding the defective packing, the goods were loaded into the railway wagon without any damage. Admittedly therefore no damage had occurred until the goods left Cochin after the successful completion of transhipment. It is therefore clear that damage could have occurred only during the rail carriage from Cochin to Itarsi. In the absence of any obligation--nay, right--on the part of the consignor to load the goods into the wagon at the transhipment point, lack of dunnage in the wagon could not be the fault of the consignor, but only that of the carrier. D. W. 5's evidence as to insufficient dunnage in the wagon is corroborated by D. W. 2 who is the railway unloading clerk at Kanpur. That is clear admission on the part of the defendants that they did not provide sufficient dunnage in the wagon.

12. The carrier has a duty to take as much care of the goods entrusted with him for carriage as a man of ordinary prudence would reasonably take of his own goods, and deliver them to the consignee in the same good order and condition in which he received them from the consignor, subject of course to ordinary wear and tear and excepted perils. The goods when loaded into the wagon at Cochin were in perfect condition. But dunnage which was the responsibility of the railway administration was insufficient. What happened to the goods between Cochin and Itarsi is a matter which is within the special knowledge of the railway administration. The fact that the goods were damaged in transit while in the custody of the carrier, and that the dunnage was insufficient raises a presumption of negligence on the part of the carrier. In such circumstances, the railway administration has the burden to show how the damage occurred. Their only explanation is that the goods were insufficiently packed and that that fact absolved them from liability. If the goods were insufficiently packed at the relevant time and for the relevant sector of the journey, this would be; if there was no negligence on thle part of carrier, a reasonable explanation and a satisfactory defence, and the cause of the leakage could be attributed solely to packing. But as seen from the evidence,the goods which formed a wagon-load were sufficiently well packed for a journey not involving transhipment, and the goods were in proper condition when loaded into the wagon at Cochin. No transhipment after Cochin was either contemplated or done. The goods left Cochin by rail in safe and proper packing condition. The requirement of wooden cases was no longer relevant or applicable to the goods. In the circumstances, the damage which occurred between Cochin and Itarsi cannot reasonably be attributed to the packing condition. The railway administration has, in my view, failed to give a reasonable and proper explanation for the cause of the damage. In the absence of any other evidence on this point, it has to be presumed that want of sufficient dunnage in the wagon, which was the responsibility of the carrier, was the cause of the damage. The carrier was well aware. Or ought to have foreseen, that insufficient dunnage was likely to cause the kind of damage which was in fact caused to the goods. Yet the carrier did not lake the necessary precautions. That was an omission which a diligent carrier would have taken reasonable care to avoid and which he could reasonably foresee would be likely to injure the goods. The railway administration has thus failed to act with reasonable care and diligence. Accordingly I hold that the damage was caused on account of the negligence of the railway administration and that the defendants are therefore liable in damages to the plaintiff.

13. The appeal is allowed. The decree of the lower appellate court is set aside and that of the trial court is restored. The appellant/plaintiff is entitled to the damages as quantified by the trial court under Issue No. 3. In the circumstances of this case the parties will bear their respective costs.


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