K. Bhaskaran, J.
1. The Union of India represented by the General Manager. Southern Railway. Madras, the defendant in the suit, is the appellant; and the Universal Traders Corporation, Mattancherry Cochin, the plaintiff in the suit is the , respondent. The suit was one for damages alleged to arise out of loss sustained by the plaintiff on account of damage to 27 baskets of shrimps sent from Madras to Cochin to the plaintiff by 41 Kerala Express leaving Madras on the evening? of 19-3-1972, due to delay in transit. The trial court having decreed the suit, this appeal has been filed by the defendant.
2. The plaint averments stated in brief, are as follows: A consignment of 22 baskets Sea Naran Shrimps weighing 770 kgs was despatched to the plaintiff on 19-3-1972 by Abdul Rahiman & Co, under Ext Al parcel bill by 41 Kerala Express. On the same day and by the same train another consignment of 5 backets of shrimps weighing 175 kgs was sents by Deccan Seafoods for delivery to the plaintiff at Cochin. Ordinarily the train should have reached the Cochin Harbour Terminus by 8 a.m. on the morning of 20-3-1972: but it did not. The plaintiff took delivery at 3 a. m, on 21-3-1972 of 9 baskets which arrived at Cochin at 1 a. m. that day; though open delivery was asked for, the demand was not conceded by the railway authorities. The balance (18 baskets) was delivered to the plaintiff at 3 p. m. on 21-3-1972 under Open Delivery Certificate (Ext, Bl). The plaintiff got the shrimps received examined by the Veterinary Surgeon who issued Ext. A5 certificate, which indicated that 62% of the 9 baskets and 90% of the 18 baskets was unfit for human consumption. The advice by the Veterinary Surgeon was to bury the whole lot. The plaintiff laid its claim, restricting it to 50% of the invoice price but the defendant did not accept the liability or make any payment; and that necessitated the institution of the suit.
3. The defendant in the written statement contended inter alia that the parcels were booked at Owner's Risk Rate: and the delay in transit of the parcels was unavoidable. In the additional written statement filed by the defendant it was stated that the delay was caused on account of an accident to a goods train between Vijayamangalam and Uttukuli on 20-3-1972, which obstructed the onward journey of 41 Kerala Express carrying the consignment; that due to this fact, the goods mentioned in the plaint were loaded into lorries at Erode and transported to Coimbatore for despatch to Cochin; that from Coimbatore the baskets were sent by 19 Madras-Cochin Mail: that delay, if any, was due to the railway track having been blocked by the derailment of wagons; that prompt steps had been taken by the railway authorities to transport the baskets in the best manner possible in the circumstances: that the main cause of damage of goods was inherent vice; that the railway was therefore exempted from any liability; that 9 baskets have reached Cochin at 3 a m. on 21-3-1972 i.e. within 33 hours of the despatch; that the plaintiff did not claim open delivery of that consignment; that even at the time of the survey of second consignment 50% was found to be in good condition; that the indemnity certificate showed the value of 5 baskets to be Rs. 500/-: and that the report of the Veterinary Surgeon was not binding on the defendant.
4. Exts, Al and A2 Parcel Way Bill would show that the goods were delivered for carriage at Owner's Risk Rate. The defendant has a case that the damage alleged had not been proved inasmuch as Hassan Koya the representative of the plaintiff who supervised the despatch of the consignment from Madras has not been examined: and admittedly no partner or other representative of the plaintiff firm was present at the despatch and to speak about the condition of the goods at the time of despatch, or the suitability of the packing of the goods. The only witness examined on the side of the plaintiff is PW 1. one of the partners of the plaintiff firm. He admittedly had no direct knowledge about the condition in which the goods were found at the time of the dispatch or the care and precaution with which the goods were packed. Added to this circumstance, the Veterinary Surgeon who is stated to have issued Ext. A5 certificate also has not been examined, Therefore, as pointed out by the counsel for the appellant, there is mo acceptable evidence either in regard to the condition of the goods at the time of despatch, of the manner in which they were packed: and, therefore, the damage alleged has not been proved.
5. Apart from the fact that the damage alleged has not been proved, there is yet another reason why the judgment and decree of the court below could not be upheld; and that relates to the operation of the special provisions of Section 74(3) of the Railways Act. 1890 (the Act), the significance of which appears to have been misunderstood and misapplied by that court. That sub-section reads as follows :--
'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 less destruction, damage, deterioration or non-delivery, in transit, or such animals or goods from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants.' (Underlining is mine).
In the light of the provisions of this sub-section, unless the plaintiff alleged and proved negligence or misconduct on the part of the railway administration or of any of its servants, the plaintiff could not have succeeded in, an action cuff this nature. In the context we have to consider whether the court below is justified in arriving at the conclusion that the more appropriate provision applicable to the facts of the case was the one contained in Section 76 of the Act which reads as follows :--
76. 'Responsibility for delay or detention in transit. -- 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.'
The difference in application between' Section 74 (3) and Section 76 is this: in the case of goods delivered for carriage at Owner's Risk Rate, governed by Section 74 (3), it is for the owner to prove, positively that the loss, destruction damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants; whereas in the case covered by Section 76 if the owner proves that due to delay or detention in the carriage of goods, loss, destruction, damage, deterioration or non-delivery of goods had occurred, for the railway administration to escape liability arising out of the general responsibilities stated in Section 73 Of the Act, it is to be proved that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants.
6. The general responsibility of a railway administration as a carrier of animals and goods, as laid down in Section 73 of the Act is as follows:--
'Save as otherwise provided in this Act, a railway administration shall be responsible for the loss destruction, damage, deterioration or non-delivery in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely:--
(a) (b) (c) (d) (e) (f) (g) (h) (i) .........
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods.'
7. In support of its conclusion the court below placed reliance on the Single Bench Decision of the Madhya Pradesh High Court in Union of India v. Shankerlal, (AIR 1972 Madh Pra 201) where, on the facts of the case, which disclosed damage to goods on account of delay in transit, the court took the view that inasmuch as the railway administration had ailed to prove that the delay was without misconduct or negligence on the part of the railway administration or of any of its servants, the plaintiff was entitled to succeed by virtue of the provisions contained in Section 76 of the Act. According to Shiv Dayal J., who decided the case, 'Section 76 is a proviso to Section 74 (3), which is a general provision'. The learned Judge also thought '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', with due respect to Shiv Dayal J. we find it difficult to agree with this reasoning. On an examination of the scheme of the Act, we are of the opinion that Section 74 (3) not Section 76 is the special provision, in as much as Section 74 (3) is designed to govern exclusively carriage of goods at the 'Owner's Risk Rate': it absolves the railway administration of its responsibility for loss, destruction, damage, deterioration or non-delivery in transit, from whatever cause arising excent upon proof that such loss, destruction, damage deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants; this is notwithstanding the general responsibility, more or less absolute in nature, similar to that of an insurer, embodied in Section 73 of the Act. Where the railways carry goods at the owner's risk rate, the provision of Section 74 (3) would apply in regard to the owner's burden to prove misconduct or negligence on the part of the railway administration or of ;inv of its servants, resulting in loss, destriction, damage, deterioration or non-delivery, from whatever cause arising which expression, in our opinion, is comprehensive enough to include all cases of loss, destruction, damage, deterioration or non-delivery occasioned by delay or detention also; and the principle 'generalia 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 deregant (special things derogate from general)' has to be applied having in mind that in contradcition to the general provisions contained in Section 73 in regard to the responsibilities of the Railway administration, Section 74 (3) contains special provisions in regard to the carriage of goods at 'Owner's Risk Rate.' When the goods are carried at owner's risk rate, in case of loss, destruction, damage, deterioration or non-delivery, the owner could by the application of Section 74 (3), succeed only by proving that it was due to the negligence or misconduct on the part of the railway administration or of any of its servants that such loss, destruction damage, deterioration or non-delivery in transit had occurred. The burden to prove negligence or misconduct on the part of the railway administration is on the owner: no burden is cast on the Railway administration to prove that the delay or detention resulting in loss, destruction, damage, deterioration or non-delivery is without negligence or misconduct on its part, On this question the view expressed by Chatterjee J., of the Calcutta High Court in Union of India v. Mamchand Agarwaila (AIR 1067 Cal 133) is as follows (at p. 135):
'Section 74 specifically says in sub-section that the said section could be applicable notwithstanding anything contained in Section 73. Section 73 is the section which deals with the general responsibility of the railway administration as carrier of animals and goods. Therefore Section 73 is the general section relating to the responsibility of a railway administration as carrier of animals and goods. To this section there is an exception and that exception is in Section 74. Therefore, Section 73 is the general provision to which there is an exception in Section 74 Therefore the special provision in Section 74 will exclude the general provision in Section 73......Section 76 is one of the sections which deal with the causes for destruction, damage or deterioration of goods. Therefore, Section 76 really deals with one particular case of deterioration where there is a general responsibility under Section 72. But when there is no general responsibility under Section 73, Section 76 will not come into operation. Therefore the operation of Section 76 is controlled by Section 73 and as Section 73 is excluded by Section 74, Section 74 would apply rather than Section 76'.
We are in respectful agreement with the views expressed in the passage quoted above from the decision of Chatterjee J. We also notice that this decision was not brought to the notice of Shiv Dayal J, who decided the case in Union of India v. Shankerlal (AIR 1972 Madh Pra 201).
8. A decision of the Madras High Court in A. Rafeeq Ahmed and Co. v. Union of India (AIR 1972 Mad 4541 relied on by the counsel for the respondent, and the decision of the Calcutta High Court in Union of India v. Sree Narayan Agarwalla (AIR 1971 Cal 449) relied on by the counsel for the petitioner were brought to our notice. In the former case, Ismail J., as he was then, found on facts that no case for the application of Section 76 was made out, as the owner had succeeded only in proving that there was delay in the carriage of goods without establishing that the deterioration of the goods was caused by such delay in the carriage of the goods. This finding in facts is found in para 13 of the judgment, and whatever observations Ismail J., has made in that paragraph in regard to Section 76 is in the nature of obiter dicta. In Union of India v. Sree Narayan Agarwalla, (AIR 1971 Ca] 449 (DB)) also the application of Section 76 was not directly in issue; and as a matter of fact Chakravarti J. who spoke for the Bench has not made any reference to Section 76 at all. The counsel for the appellant, however, pointed out that the plaintiffs' case therein was that the goods delivered for carriage got badly damaged by rainwater during transit on account of negligence and misconduct on the part of the railways, and there was also considerable delay on the part of the railways in handling the consignments, and in those facts, which are almost similar to those in the present case, the suit was dismissed applying the provisions of Section 74C, as it stood during the relevant time, holding that the plaintiff failed to prove misconduct or negligence on the part of the railway administration or of any of its servants. It is enough, we believe, to notice this submission.
In the light of the foregoing discussions we allow the appeal setting aside the decree and judgment of the Court below, and dismissing the suit. In the peculiar circumstances of the case we would direct the parties to bear the costs in both the courts.