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Hundraj Chhangomal and Co. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR34
AppellantHundraj Chhangomal and Co.
RespondentUnion of India (Uoi)
Cases ReferredUnion of India v. Shagaban Rout
Excerpt:
- - 1510 of 1969, 2059 of 1969 and 2042 of 1969. the three suits referred to above were dismissed by the trial court holding that the plaintiffs failed to prove that the deterioration of the goods was due to delay or detention in transit. according to him, the railway administration has failed to discharge that burden and, therefore, the trial court should have decreed the suits of the plaintiffs. of goods in defective condition or defectively packed. , of goods in defective condition or defectively packed. this section clearly provides that the railway administration is required to use reasonable foresight and care in the carriage of the animals or goods. (4) we shall fail to give effect to the obvious intention of the legislature in enacting the new section 76 to meet such a special.....m.c. trivedi, j.1. this group of 24 appeals is decided by this common judgments because a common question of interpretation of sections 73, 74 and 76 of the indian railways act, 1961 (hereinafter referred to as 'the act') and the application of the principles contained therein arises for determination.2. first appeal no. 240 of 1971 involving the same question was filed in this court, but at the stage of hearing the same was withdrawn.3. first appeals nos. 177 of 1973, 306 of 1973 and 594 of 1973 are filed against the judgment and decree passed by the learned judge of the city civil court, ahmedabad, in civil suits nos. 1510 of 1969, 2059 of 1969 and 2042 of 1969 respectively. these appeals are filed against the judgment and decree dismissing the suits of the respective plaintiffs filed.....
Judgment:

M.C. Trivedi, J.

1. This group of 24 appeals is decided by this common judgments because a common question of interpretation of Sections 73, 74 and 76 of the Indian Railways Act, 1961 (hereinafter referred to as 'the Act') and the application of the principles contained therein arises for determination.

2. First Appeal No. 240 of 1971 involving the same question was filed in this Court, but at the stage of hearing the same was withdrawn.

3. First Appeals Nos. 177 of 1973, 306 of 1973 and 594 of 1973 are filed against the judgment and decree passed by the learned Judge of the City Civil Court, Ahmedabad, in Civil Suits Nos. 1510 of 1969, 2059 of 1969 and 2042 of 1969 respectively. These appeals are filed against the judgment and decree dismissing the suits of the respective plaintiffs filed against the railway administration for compensation. The rest of the appeals are filed by the railway administration against the judgment and decree passed by the trial Court in different civil suits filed for compensation for damage or deterioration of the goods, viz, mangoes, as a result of delay or detention in transit.

4. The important question involved in all these appeals is of intetpretation of Sections 73, 74 and 76 of the Act. In all the cases the plaintiffs' case is that the mangoes were damaged or deteriorated in condition because of delay or detention in transit. It is not necessary to set out the facts of all the 24 suits separately.

5. Illustratively stated the facts of Civil Suit No. 1510 of 1969 from which First Appeal No. 177 of 1973 arises are, that 1,051 baskets of fresh raw mangoes were booked from Jalarpet Railway Station to Ahmedabad. The same were despatched in Broad-guage Wagon No. 30301. Consignment was booked on 16-5-1966 under Parcel Way Bill No. 824713. Consignment was delivered to the consignee at Ahmedabad on 25-5-1966 on assessment. Distance between Jalarpet and Ahmedabad is 1,830 kilometers. Plaintiff No. 2 S.A. Kadar Basha was the consignor and plaintiff No. I M/s. Hundraj Chhagomal & Company was the consignee. On the request of the consignee the railway authorities granted assessment and according to the assessment report, damage to 301 baskets was 35 per cent., to 275 baskets 28 per cent., to 275 baskets 32 per cent., to 100 baskets 60 per cent., and to 100 baskets 43 per cent. In other suits there is difference in the number of baskets booked. The consignments were booked from different railway stations all on the southern railway. The dates of booking were different and, the dates of delivery were also different. The distance between the booking stations and the destination station are also different. However, the minimum distance between the booking station and destination station is 1,467 kilometers and the maximum distance is' 1,831 kilometers. In all the suits, except one, the goods were delivered on the 10th day from the date of the booking. In Civil Suits No. 1860 of 1970 out of which First Appeal No. 476 of 1974 arises, the consignment was delivered to the consignee on 11th day at Ahmedabad. In all the suits, plaintiffs claimed damages for deterioration of the goods alleging that the deterioration was due to delay in transit of the goods.

6. The trial Court decreed the suits of the plaintiffs except Civil Suits Nos. 1510 of 1969, 2059 of 1969 and 2042 of 1969. The three suits referred to above were dismissed by the trial Court holding that the plaintiffs failed to prove that the deterioration of the goods was due to delay or detention in transit. The plaintiffs in the said three suits have filed the above referred appeals in this Court. In the rest of the suits railway administration has filed appeals against the decrees passed in favour of the plaintiffs. We do not propose to go into the details of the facts of the different suits because more or less, the final decision in all the matters depends upon the interpretation of Sections 73, 74 and 76 of the Act.

7. In the appeals filed by the railway administration against the judgments and decrees passed in favour of the plaintiffs, Mr. Mangaldas M. Shah, appearing for the railway administration, has very strenuously argued before us that Section 76 of the Act has no application to the consignments in question because they were admittedly booked at owner's risk rate. According to him, the provisions of Section 74 would apply and in that case, the burden would lie on the plaintiffs to prove that the railway administration is not responsible for deterioration of goods in transit from whatever cause arising, except upon proof that such deterioration was due to negligence or misconduct on the part of the railway administration or of any of its servants. In his opinion, no such evidence was given by the plaintiffs in any of the suits and, therefore, their suits were wrongly decreed by the trial Court.

8. In the appeals filed by the plaintiffs in the suits which have been dismissed by the trial Court, Mr. S.K. Agrawal, appearing for the appellants-plaintiffs, has very strenuosity argued that on reading of the provisions of Sections 73, 74 and 76 of the Act, it is quite clear that the provision contained in Section 76 is an independent provision. It is not governed by Section 73 or 74. The plaintiffs' case falls under Section 76 of the Act and what the plaintiffs are required to prove is that the deterioration of the goods was caused by delay or detention of the same in their carriage and the plaintiffs have succeeded in proving the same. According to him, once the plaintiffs are held to have succeeded in proving this fact, the burden shifts on the railway administration to prove that the delay or detention in transit of the goods arose without negligence or misconduct on the part of the railway administration or of any of its servants. According to him, the railway administration has failed to discharge that burden and, therefore, the trial Court should have decreed the suits of the plaintiffs.

9. There are certain admitted facts which may be stated. Admittedly the consignments were booked at owner's risk rate. All the consignments were of mangoes which are admittedly perishable goods. The railway administration was fully aware of the fact that the consignments were of mangoes which were highly perishable. It is not in dispute that except in one suit, the consignments were delivered on the 10th day after the booking and in Civil Suit No. 1860 of 1970 the consignment was delivered on the 11th day after the booking. According to the plaintiffs, the normal transit time of such consignments is 5 to 6 days, while according to take railway administration the normal or reasonable transit time is from 8 to 11 days. According to the railway administration, one day is allowable for booking and delivery of consignment and the consignment would take about 7 to 10 days for the transit from the booking station to the destination station.

10. According to the railway administration, in all cases where the goods are booked at owner's risk rate (admittedly in all cases before us the goods were booked at owner's risk rate), the liability to compensate for damage or deterioration of goods-in transit is governed by Section 74(3)) of the Act and not by Section 76 of the Act and, therefore, the plaintiffs are not entitled to succeed unless they prove that alleged delay was the result of any negligence or misconduct on the part of the railway administration or of any of its servants. Therefore, the question is whether Section 76 of the Act applies where the goods are booked at owner's risk rate. The whole scheme of Chapter VII of the Act which is relating to responsibility of railway as carrier will have to be examined for finding out a correct answer to this question.

11. Section 72 of the Act deals with execution of forwarding notes in respect of animals or goods carried on a railway. Section 73 deals with general responsibility of a railway administration as a carrier of animals and goods, Section 74 deals with responsibility of a railway administration for animals or goods carried at owner's risk rate. Section 75 deals with responsibility of a railway administration as carrier of luggage. Section 75-A deals with responsibility of a railway administration for goods carried in open vehicles. Section 76 deals with responsibility for delay or detention in transit. Section 76-A deals with responsibility for deviation of route. Section 76-B deals with responsibility for wrong delivery. Section 76-C deals with responsibility for goods to be delivered at siding. Section 76-D deals with responsibility of two or more railway administrations for through traffic. Section 76-E deals with responsibility of railway administration in case of traffic passing over railways in India and railways in foreign countries. Section 76-F deals with burden of proving misconduct in case of non-delivery or pilferage in transit of goods carried at owner's risk rate. Section 77 deals with responsibility of a railway administration after termination of transit. Section 77-A deals with further provision with respect to the responsibility of a railway administration as a carrier of animals. Section 77-B deals with further provision with respect to the responsibility of a railway administration as a carrier of Articles of special value. Section 77-C deals with responsibility of a railway administration for damage, deterioration, etc. of goods in defective condition or defectively packed. Section 77 deals with exoneration from responsibility in certain cases. Section 78-A deals with burden of proof in suits for compensation. Section 78-B deals with notification of claims of refunds of overcharges and to compensation for losses. Section 79 deals with settlement of compensation for injuries to officers, soldiers, sailors, airmen and followers on duty. Section 80 deals with suits for compensation. We are not for the present concerned with the provisions of Section 77-C which deals with responsibility of railway administration for damages, deterioration, etc., of goods in defective condition or defectively packed. However we shall have to refer to the same at the time of deciding the question as to whether the goods in question were deteriorated during the transit. For the present we are concerned with the provisions contained in Sections 73, 74 and 76 of the Act.

12. Section 73 of the Act provides:

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) act of God:

(b) act of war;

(c) act of public enemies;

(d) arrest, restraint or seizure under legal process;

(e) orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in this behalf;

(f) act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee;

(g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;

(h) latent defects:

(i) fire, explosion or any unforeseen risk:

Provided that even where such loss, destruction, damage, deterioration or nondelivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration that 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.

This section provides for the general responsibility of a railway administration as a carrier of animals and goods. The Act was amended in 1961 with a view to make the railway liable for compensation as a common carrier instead of as a bailee. This section provides protection to railway administration against general liability in cases enumerated in Clauses (a) to (i). However, that protection also is not absolute. The proviso to the section provides that for availing of the protection the railway administration must prove that it had used reasonable foresight and care in the carriage of the animals or goods. This section clearly provides that the railway administration is required to use reasonable foresight and care in the carriage of the animals or goods.

13. Section 74 of the Act provides for responsibility of a railway administration for animals or goods carried at owner's risk rate. Sub-section (1) of it reads:

(I) When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate) or in the alternative at a special reduced rate (in this Act referred to as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the railway risk rate.

In the present case, it is an admitted position that neither the sender nor its agent elected in writing to pay the railway risk rate. The consignments were booked at owner's risk rate. Sub-section (2) provides:

Where the sender or his agent elects in writing to pay the railway risk rate under Sub-section (1), the railway administration shall issue a certificate to the consignor to that effect

If the goods are booked at railway risk rate, the liability of the railway administration is absolute and there is no question of the claimants being required to prove that the loss, destruction, damage, deterioration or non-delivery was the result of negligence or misconduct on the part of the railway administration or any of its servants. Sub-section (3) provides:

(3) 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 loss, destruction, damage, deterioration or non-delivery, in transit, of such animals or goods, from whatever cause arising, except upon proof that such loss, destruction, damage deterioration or nondelivery was due to negligence or misconduct on the part of the railway administration or of any of its servants.

Contention urged on behalf of the railway administration is that all the goods booked at owner's risk rate are govertied by Sub-section (3) of Section 74 and, therefore, the claimant putting forward a claim for compensation for loss, destruction, deterioration, damage or non-delivery, is required to prove that the same was due to negligence or misconduct on the part of the railway administration or of any of its servants.

14. We are not concerned with Sections 75 and 75-A in this case. Section 76 provides:

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 contention of the plaintiffs is that their case is governed by this Section 76 and, therefore, they are only required to prove that the goods in question deteriorated because of the delay or detention in the carriage. According to them, once they prove these facts, the burden shifts on the railway administration to prove that delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. Mr. Shah for the railway administration has argued that Section 76 does not apply to the goods booked at owner's risk rate. According to him, all goods booked at owner's risk rate are governed by Section 74(3) and, therefore, the burden lies on the plaintiffs to prove that the deterioration of the goods was due to negligence or misconduct on the part of the railway administration or of any of its servants.

15. Provision of Section 73 of the Act is subject to the other provisions of the Act. Provision contained in Section 74(3) is a provision relating to liability of the railway for compensation where goods are booked at owner's risk rate. Again by the non-obstante clause with which the Sub-section begins the operation of Section 73 is expressly excluded. Therefore, general provision contained in Section 73 cannot be called in aid for interpretation of Section 74(3). Even otherwise provision of Section 73 being subject to the other provisions of the Act, it cannot be said that on a combined reading of sacs. 73 and 74(3) operation of Section 76 is excluded where the consignment booked at owner's risk rate. As between Sections 73 and 76 the latter section where it applies holds the field excluding the operation of the former as expressly provided in Section 73. Then the argument advanced on behalf of the railway is that Section 74(3) alone governs the liability of the railway for compensation where the consignment is booked at owner's risk rate. It is argued that Section 74(3) excludes the provision of Section 76 where the consignment is booked at owner's risk rate. This argument is based on the phrase 'from whatever cause arising' appearing in the section under examination. According to the railway the legislature has made its intention quite clear by use of this sweeping phrase that all cases concerning railway's liability to compensate where goods are booked at owner's risk rate shall be governed by this section and by no other section thereby excluding the operation of Section 76 in such cases.

16. It is pointed out on behalf of the railway administration that provision contained in Section 76 does not exclude the operation of Section 74(3). Again Section 76 does not expressly provide that it shall apply even to cases of goods booked at owner's risk rate. It is true that Section 76 does not expressly exclude the operation of Section 74(3). However, it is equally true that Section 74(3) does not exclude the operation of provision contained in Section 76 just as it excludes the operation of the provision contained in Section 73. Therefore the question is of harmonious construction of Sections 74(3) and 76 of the Act. Mr. Shah for the railway wants us to hold that Section 73 of the Act is the general section of the liability of the railway, operation of which is expressly excluded by Section 74(3) and, therefore, it excludes the operation of Section 76 also. If we accept this argument, the result will be as under:

(1) We shall be deleting the clause in Section 73 which makes the provision subject to the other provisions of the Act.

(2) In Section 74(3) we shall be adding Section 76 to Section 73, the operation of which is expressly excluded by the section.

(3) We shall be adding something in Section 76 so as to exclude its operation to cases where goods are booked at owner's risk rate.

(4) We shall fail to give effect to the obvious intention of the legislature in enacting the new Section 76 to meet such a special situation where goods deteriorate as a result of delay or detention in carriage, where only' treating this tell-tale circumstance itself as prima facie proof, the evidential burden has been shifted by the legislature to the Railway Administration to prove that such delay or detention arose without negligence or misconduct on the part of the Railway Administration or of any of its servants.

The result will be that the provision of Section 76 will be rendered redundant. It amounts to destroying a provision of the statute which was specifically enacted to meet such a special situation which had to be remedied by creating an initial statutory presumption to aid the unfortunate claimants that such delay or detention was either due to laxity and carelessness or deliberate, which would be prima facie evidence of the railway's misconduct in the first case of negligence or misconduct in the later case, and so thereafter the burden was shifted on the railway to prove that such delay or detention occurred without there being any negligence or misconduct. The rules of harmonious construction do not permit such interpretation of statutes. Despite the use of the words 'from whatever cause arising' in Section 74(3), it cannot be said that its scope is so wide as to render Section 76 superfluous or redundant, because this being a special rule of evidence for special cases, both the provisions would be given full effect without any collision. A glance at the history of the enactment exposes the absurdity of the argument advanced on behalf of the railway administration. In Indian Railways Act, 1890 (hereinafter referred to as 'the old Act') there was a provision corresponding to Section 74(3) of the Act (Indian Railways Act, 1961). It was Section 74-C(3). It provided for the liability of the railway for compensation where goods were carried or deemed to have been carried at owner's risk rate. The words 'from any cause whatsoever' were also used therein. In the old Act there was no general provision corresponding to Section 73 of the Act because under the old Act the liability of a railway was that of a bailee. Section 74(3) excludes the operation of Section 73 because it is the general provision relating to the liability of a common carrier. In Section 74-C(3) of the old Act there was no such provision of excluding the operation of any other provision of the Act because there was no provision corresponding to Section 73 of the Act. Except that the provision of Section 74(3) of the Act is almost the same as in Section 74-C(3) of the old Act. Therefore, Section 74-C(3) of the old Act was the only provision which governed all cases where goods were carried at owner's risk rate. In the old Act 'there was no provision corresponding to Section 76 of the Act and, therefore, even the cases of compensation for damage or deterioration of goods due to delay or detention in the carriage were governed by Section 74-C(3) of the old Act. Railway is a common carrier with foresight. It is expected to carry the goods or animals of the consignor with the care with which a man of prudence would carry his own goods or animals. Such carrier knowing the perishable nature of the goods is bound to carry the goods without unavoidable delay so that the goods may not be damaged or deteriorated due to delay or detention in transit. The legislature in its wisdom, therefore, while making the railway liable as a common carrier by the amending Act of 1961 thought it fit to introduce a new provision by enacting Section 76. It is a special provision added over and above the provision of Section 74(3). The section is drafted in general language. It does not restrict its scope to particular class of goods or animals or to goods or animals carried at particular risk rate. In the language in which it is framed it applies to all cases of liability of the railway for compensation where the goods are damaged or deteriorated as a result of the delay or detention in transit irrespective of the rate of which the goods are carried by the railway, thereby meaning including the goods carried at owner's risk rate. If the legislature intended to exclude the operation of this Section 76 in cases of goods carried at owner's risk rate, it could have very well by an excluding provision in the section itself excluded the carriage of goods at owner's risk rate. It was equally open to the legislature to exclude the operation of this provision to such goods by adding Section 76 to Section 73, the operation of which is expressly excluded by provision contained in Section 74(3). Evidently that was not done which makes the intention of the legislature quite clear that it intended to deal with such cases differently than in the manner provided in Section 74(3) of the Act. Therefore, it is quite clear that provision of Section 76 is not governed either by Section 73 or by Section 74 of the Act. Cases of damage or deterioration resulting from delay or detention incarriage are to be dealt with under Section 76 and not under Section 74(3) of the Act.

17. Mr. Shah for the Railway Administration has drawn our attention to the decision in Union of India v. Mamchand Agarwalla A.I.R. 1967 Calcutta 133. It has been relied upon by him in support of his cotention that Section 74(3) of the Act excludes the operation of Section 76 of the Act in cases where the goods are booked at owner's risk rate, There it was held:

Where goods are delivered for carriage at the owner's risk rate there is no general responsibility for damage or deterioration of quality of goods under Section 73 and, therefore, Section 76 will not come in to operation. The operation of Section 76 is controlled by Section 73 and as Section 73 is excluded by Section 74, Section 74 would apply in such a case rather than Section 76.

The learned Judge who decided that case was of the opinion;

Therefore, except with regard to cases included in exception (provided in Section 73 of the Act) there is the general responsibility on the railway for loss, destruction, damage, deterioration arising from any cause. After Section 73, different causes for damage are considered under Sections 75-A, 76, 76-A, 76-B, and 76-C, Section 75-A refers to cases where goods are carried by open vehicles, Section 75 considers the eases where responsibility arises for delay or detention, Section 76-A relates to destruction or deterioration because of goods being carried at a deviated route. Hence, Section 76 is one of the sections which deal with the causes for destruction, damage or deterioration of the goods. Therefore, Section 76 really deals with one particular case of deterioration where there is a general responsibility under Section 73. 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, with respect, unable to agree with the reasoning adopted by the learned Judge. It appears that the opening clause of Section 73 was lost sight of by him when he found, that 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. Section 73 provides that the provision contained therein shall apply save as otherwise provided in the Act. Because of this clause Section 73 does not apply to cases covered under Section 76. We are, therefore, unable to agree that Section 76 is controlled by Section 73. Section 74 applies notwithstanding anything contained in Section 73. It cannot be said that Section 76 is controlled by the provision contained in Section 73. The view taken by the learned Judge does not seem to be sound also in view of the fact that legislature deemed it fit to introduce the new provision even, though provision corresponding to Section 74-C(3) of the old Act was made-in Section 74(3) of the Act. In our opinion the provision of Section 76 has been added by the legislature as a proviso to Section 74(3) of the Act with a view to make special provision for the liability of the railway administration where goods are damaged or deteriorated as a result of delay or-detention in carriage.

18. In Union of India v. Shankarlal : AIR1972MP201 , the question of interpretation of Sections 74(3) and 76 of the Act was gone into. There, also the question was as to whether Section 76 was controlled by Section 74(3) of the Act, It was held:

Section 76 of the Railway Act is a proviso of Section 74(3), which is a general provision absolving the railway administration of responsibility for loss, destruction, damage, deterioration or non-delivery of goods or animals sent at owner's risk. There is nothing in Section 74(3) or Section 76 to show that the latter is anywise controlled by the former section. Section 74 therefore does not exclude the operation of Section 76 in case where the goods or animals are booked at owner's risk.

Delay or detention in transit is pre se indicative of misconduct or negligence but it is not conclusive proof of negligence or misconduct. Section 76 therefore makes 'an initial presumption of misconduct or negligence of the railway authorities in case of delay or detention and places the burden to prove that dealer detention occurred without there being any misconduct or negligence on the part of the railway administration.

Where the administration leads no evidence to prove that the loss, destruction, etc., was not due to their misconduct or negligence. Section 76 relieves the plaintiff of his burden under Section 74(3). If the consignor proves that the destruction, damage or deterioration was caused by delay or detention in transit, then the burden shifts on the railway authorities to prove that the delay or detention arose without negligence or misconduct on the part of the administration or of any of its servants. Where the owner does not prove delay or detention, he has to prove the misconduct or negligence of the railway as required by Section 74(3).

The learned Judge adopted the same reasoning which has been adopted by us in the foregoing paragraphs. He was of the opinion that the provisions contained in Section 74(3) and Section 76 must be harmoniously construed. He was also of the opinion that to interpret Section 74 (as Mr. Shah puts it), will mean that something will have to be added to Section 74(3), so as to exclude the operation of Section 76 in cases where the goods or animals are booked at the owner's risk rate. In his opinion, that would be doing violence to the section, which would be wholly unjustified. We have also taken the same view that if it is held that Section 74(3) applies to such cases and not Section 76, we shall be taking out the opening saving clause from Section 73 and we shall be adding something to Section 76 which the legislature never intended to add. As held by the learned Judge in the above referred Madhya Pradesh decision, it would amount to doing violence to the language of Section 76 if it is read therein that the provision applies only to goods booked at railway risk rate.

19. We, therefore, hold that Section 76 is not controlled by Section 73 and the operation of Section 76 is not excluded by Section 74(3). The cases before us are governed by the provisions of Section 76 and once the plaintiffs succeed in proving that the goods in question were damaged or deteriorated as a result of delay or detention in carriage, the burden shifts on the railway administration to prove that delay or detention arose without negligence or misconduct on its part or of any of its servants.

20. Now when we hold that the cases are governed by Section 76 of the Act, the plaintiffs are required to prove that their goods were damaged or deteriorated as a result of delay or detention in transit. Therefore the question is as to what is 'delay in carriage of goods or animals' as contemplated under Section 76 of the Act. The dictionary meaning of 'delay' is 'postponement'. In the context in which the word is used in Section 76 of the Act, it may be taken as meaning 'loss of time in excess of the time which may be normally or usually taken in carriage of such goods in such circumstances'.

21. In Tulsidas Vithaldas v. Union of India : AIR1967Guj130 , it was held that though normal or usual time is not always equivalent to reasonable time in determining the question whether the contract is performed in reasonable time or not as per Explanation to Section 46, Contract Act, one of the important circumstances that required to be considered was, what was the usual or normal time taken for the performance of such contracts. The question whether performance was done in reasonable time or not would depend upon the particular facts of each case. As this state of old law imposed a heavy burden on the claimants to prove negligence or misconduct in all cases, where goods or animals were booked at the lower owner's risk rate, the legislature has now intervened to remedy this situation in certain special cases where goods deteriorate by reason of delay or detention. When it created a more onerous responsibility of railway as a common carrier under Section 73, this special rule of evidence enacted in Section 76 will have to be interpreted in the light of this new special provision and not by reference to the old law when the railway had the lighter burden of a mere bailee and the claimant was unaided by any such statutory presumption from the mere tell-tale circumstance of delay or detention which resulted in deterioration of goods. All the facts being in the special knowledge of the railway the legislature has raised the statutory presumption in Section 76 from the mere fact of 'delay or detention, when it results in deterioration of goods', so that thereafter evidential burden shifts to the railway to rebut this prima facie proof of neglect or misconduct. In such a context for raising such initial presumption, the time concept involved could never be any other than the normal or usual carriage time, as otherwise the Court rewrites the statutory condition to raise this necessary special presumption by substituting the different expression 'unreasonable delay or detention.' In that context to raise such presumption the question to be posed is whether any delay or detention in carriage has resulted in deterioration of goods, and once that condition is fulfilled, the presumption must be initially raised. Under Section 73 of the Act the railway as a common carrier is required to use reasonable foresight and care in the carriage of animals or goods. When the railway undertakes to carry goods, it knows the goods and their quality, nature and condition. It also knows full well the carriage facilities available with it. It also knows the destination station and the time which it would normally or usually take in the carriage of such goods. With these materials before it the railway undertakes to carry the goods and in doing so, undertakes to exercise reasonable foresight and care. The law presumes that when the railway undertakes to carry the goods with all these materials before it, the goods must reach the destination station without deterioration, if the same are carried in normal or usual time. Any time spent in excess of that, is termed as 'delay' and if such delay results in deterioration of goods, the railway is bound to show that the delay was caused without negligence or misconduct on its p Article When the railway undertakes to carry perishable or highly perishable goods, it is required to exercise comparatively higher degree of foresight and care which any reasonable man would take under such circumstances, so that there may not be any delay or detention in carriage which may result in deterioration of goods. This, in our opinion, is the meaning of 'delay or detention in carriage' as contemplated by Section 76 of the Act, which is treated by the legislature as prima facie proof of misconduct or neglect.

22. In Union of India v. M/s. B. Prahlad and Co. : AIR1976Delhi236 , on the question of delay under Section 76 of the Act, it was held:.Delay was prima facie proof of misconduct or negligence, that the Court was entitled to draw an adverse presumption against the railway under Section 114(g) of the Evidence Act and that it was for the railway to explain the delay.

In that case delay of one day in transit was taken as delay resulting in deterioration of plantain fruits because the law requires the railway to avoid any delay in carriage of such highly perishable goods.

23. In M/s. Gokalchand Shrichand v. Union of India : AIR1972All330 , it was held:

In a suit for damage to perishable fruit due to delay in delivery the nonavailability of wagon space, locomotive, train-connections and handling personnel is no excuse. Neither it is any excuse against the loss of fruit-value to say that Coaching Tariff prescribed basket containers were not used for packing the fruit, where the loss is occasioned by delay and not the type of packing.

24. In Rasbati Bewa v. Union of India : AIR1961Ori113 , the goods carried were perishable. Two days' delay in transit was held sufficient to indicate misconduct on the part of the railway. It was a case, where even under the old Act in which there was no provision corresponding to Section 76 of the Act, a final conclusion of misconduct was reached.

25. In L. Nathulal v. Dominion of India : AIR1963All137 , which was also a case under the old Act, the goods carried were perishable and were carried at owner's risk rate. Delay in transit resulted in damage to goods. Explanation of the railway for delay in transit was that the wagon carrying the goods was reported sick. Here also, the Court refused to accept the explanation and found the railway guilty of misconduct and negligence for not carrying out the minor repairs with the greatest possible despatch.

26. Decision of this Court in Tulsidas Vithaldas v. Union of India (Supra), referred to above, and on which Mr. Shah has very heavily relied, cannot help him because it was under the old Act when the railway had not the more onerous liability as a carrier to use such greater foresight, and when there was no such special liability created under the new provision in Section 76 for special cases of such delay or detention in carriage resulting in deterioration of the goods. The delay must now have only the limited meaning given by us, and in that context the decision supports the plaintiffs inasmuch as it lays down that normal or usual time though not equivalent to reasonable time has to be taken into consideration for finding out the reasonable time in which the contract is to be performed, and which alone could be the criterion for raising such initial presumption in the context of the new Section 76, where the basis is laid only for prima facie proof by the legislature.

27. On the above discussion we are of the view that the normal or the usual time is alone the relevant criterion or test to be taken into consideration for finding out the prima facie reasonable time which would be taken in transit of the goods for raising the necessary statutory presumption under Section 76. We are also of the opinion that the time wasted in the transit of the goods which could have been saved by exercise of reasonable foresight and care on the part of the railway administration is the delay or detention in carriage and if it results in damage to goods, the railway has to show that it was caused without misconduct or negligence on its part or any of its servants, for ultimately rebutting this statutory provision, by proving the fact that such delay or detention had occurred without any negligence or misconduct and, therefore, the goods were really delivered within reasonable time in the circumstances of that case.

28. Mr. Shah for the railway Administration relied on Rule 108 of Goods Tariff No. 32, which provides.

Railways do not guarantee the despatch of goods by any particular train nor will they be responsible for the arrival of goods at any station within any definite time.

Rule 120 of Coaching Tariff No. 19 also provides:

Railways do not guarantee despatch of Articles or animals by any particular rain or delivery within any definite time or period.

Neither of these rules can be pressed into service by the railway because the responsibility of the railway for damage to goods resulting from delay or detention in transit is governed by the special, new statutory provision of Section 76 of the Act, and no rule can be interpreted so as to override the statutory mandate.

29. The question of delay in transit as per the aforesaid criterion of normal or usual time is a question of fact in each case. In all the cases under appeal, the consignments of mangoes were delivered at Ahmedabad either on the 10th or 11th day of the booking. In all the cases the plaintiffs have stated that delivery of the consignments on 10th or 11th day of the booking was delayed delivery. The contention of the railway is that the delivery of the consignments on the 10th or 11th day of the booking cannot be said to be delayed delivery. Plaintiffs have given evidence to show that the consignments of mangoes in some cases were delivered at Ahmedabad on the 5th or 6th day of the booking from some of the railway stations which are under reference. As against that, the railway has given evidence to show that in some cases the consignments were delivered even on the 12th day of the booking and in those cases the consignees had not asked for delivery on assessment.

30. The plaintiffs have also relied upon the notification dated 2-4-1965 issued by the railway administration and which is exhibited in all cases. Under the said notification, some directions have been issued for maintaining certain records of the transit particulars of the goods while in transit. According to the instructions contained therein, a parcel train or a passenger train carrying parcels is expected to cover a distance of 400 kilometers per day. In deciding the normal or ordinary time of delivery, one day is to be added for every break-of-gauge transhipment point and one day more is to be added for booking and delivery formalities. In the cases before us, the longest distance which was required to be covered by the consignments was 1, 831 kilometers and the shortest distance was 1,247 kilometers. There was no break-of-gauge transshipment on the way because all the stations are situated on the broad-gauge line Therefore, according to the said notification, the consignments booked from the farthest booking station would take about 4 to 5 days for the journey. To that one day is to be added for booking and delivery formalities. Therefore, according to this notification, the consignments booked from the farthest booking station to Ahmedabad should ordinarily reach Ahmedabad in 5 to 6 days and should be normally delivered on the 7th day of the booking. The plaintiffs have even given evidence to show that there were cases in which the railway delivered such mango consignments at Ahmedabad on the 5th or 6th day of the booking. One will not expect the railway to deliver the consignments exactly on any definitely, but if there is delay or detention there is a duty to explain the delay which is treated by the legislature as prima facie proof of neglect or misconduct, in these special cases where such delay or detention has been shown to have led to deterioration of the goods. From the instructions contained in the above referred notification and on the evidence of the instances of some consignments having been delivered at Ahmedabad on the 5th or 6th day of the booking, one can reasonably expect the railway to deliver the consignments either on the 6th day or latest on the 7th day in Ahmedabad. In our opinion, that would be the normal or usual time in which the consignments should have been delivered at Ahmedabad railway station. This period cannot be oil mere conjectures and surmises extended toll or 12 days as is contended on behalf of the railway administration. The prima facie reasonable time is to be found out on the relevant test of only the normal or ordinary transit period and in doing so, the Court has to take into consideration, particularly, the nature of the goods carried. If the nature of the goods is perishable or highly perishable, higher degree of foresight and care is expected of the railway administration and, therefore, the goods should have been delivered in the present cases latest within a period of 6 or 7 days from the date of the booking, and if there was failure to do so, on the resulting deterioration being established the prima facie case of neglect or misconduct was established and the evidential burden to rebut the same shifted to the railway.

31. In Union of India v. M/s B. Prahladand Co. (supra), the question of delay was gone into. It was held:

If appears to me that if in seven cases goods can arrive within three days then I should think that is the normal time. If more than three days are taken by the railway in bringing plantains to Delhi they must show how and in what circumstances the goods reached on the fourth day as in this case. How did the railway deal with the goods in transit? This is a matter within their special knowledge. (Section 106. Evidence Act). They have to explain. They have to prove. In this case no such evidence was given by the railway. The Court is entitled to draw an adverse pre-emption against them under Section 114(g) of the Evidence Act. See Union of India v. Delhi Cloth and General Mills Co. Ltd. A.I.R. 1964 Punjab 147). The appellate Court has reached the conclusion that there was delay in delivery. What is a reasonable time in each particular case is a question of fact. (See Explanation to Section 46, Contract Act). Whether there is a delay or not in a particular set of circumstances is essentially a question of fact and cannot be re-agitated in this Court in second appeal.

Delay is prima facie proof of misconduct and negligence. The train took unusual time. It was for the railway to explain it properly. The plaintiffs, instances show that the goods can arrive in three days. The instances given by the railway cannot be accepted. They were selective. These were not taken at random from record. They were chosen to illustrate the maximum time. What about instances where on this very route the train journey was covered in three days? In agreement with the first appellate Court, I would therefore hold that there was misconduct on the part of the railway as makes them liable in damages.

Although the emphasis is not on the relevant legal criterion under the changed legal position, the approach is the same as adopted by us. The facts in the case before the Delhi High Court were similar to the facts of the cases before us. Here also, the plaintiffs have cited instances of delivery of goods on the 5th or 6th day of the booking, while the railway administration has cited instances of delivery of goods on the 11th or 12th day of the booking. Plaintiffs have selected cases of the minimum time which can be assumed in absence of any explanation to be normal time of carriage, while the railway administration has selected cases of the maximum time taken. As it has been observed in the decision under reference, delay is prima fade proof of misconduct and negligence. If the goods could reach on the 5th or 6th day of the booking and if they are delivered on the 10th or 11th day of the booking, it is prima facie delay and the burden lies on the railway administration to show as to how the goods in transit reached late and what were the reasons of delay in delivering the goods.

32. Mr. Shah for the Railway Administration relied on the decision in Union of India v. Shagaban Rout : AIR1969Ori100 , where the consignment booked was of mangoes which were found unfit for human consumption when delivered. There was delay of two days in delivering the goods. The Court found that the delay was not unreasonable and the railway was not responsible for destruction. However, it was a case under the old Act when Section 76 of the Act was not in force, and so, no question arose for raising any statutory presumption.

33. Mr. Shah has also relied on Section 54 of the Act which is about imposing of conditions for working traffic by the railway administration. This section, however, cannot supersede the provisions of Section 76 of the Act which governs the responsibility of the railway administration in all cases before us.

34. We are, therefore, of the opinion that in all the cases before us the plaintiffs have succeeded in proving that the consignments of the mangoes were delivered at Ahmedabad Railway Station after delay or detention in transit.

35. On behalf of the railway administration it is argued that the plaintiffs have not succeeded in proving that damage of deterioration of the mangoes was the result of delay or detention in transit. It was also argued by Mr. Shah for the railway that Section 76 of the Act requires the owner of the goods to prove that delay or detention in transit resulted in damage or deterioration of the goods. In all the cases before us, the consignees as well as the consignors are the plaintiffs. Therefore, it cannot be said that the owners of he goods have not come forward to prove that damage or deterioration of goods was the result of delay or detention in transit. The section nowhere provides that the consignor or the consignee, if otherwise entitled to file a suit for damages, cannot file a suit for compensation under Section 76 of the Act.

36. Mr. Shah's argument that the plaintiffs have not succeeded in proving that delay or detention in transit was the cause of damage or deterioration of goods cannot be accepted in view of the very clear provision contained in Section 77-C of the Act. It provides:

77-C(l) 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 of defective of improper packing has been recorded by the sender 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.

In the cases before us it is an admitted position that in the forwarding notes of the consignments in question no note was recorded about the defective condition of the goods when the same were booked at the booking stations. Under this provision if the goods are in defective condition as a consequence of which they are liable to damage, deterioration or wastage, it is the duty of the booking clerk to get such condition recorded by the sender or his agent in the forwarding note. Unless the same is got recorded in the forwarding note, the railway administration is not entitled to say that at the time of the booking of the goods they were in a defective condition as a consequence of which they were liable to deterioration. In view of this provision contained in Section 77-C of the Act presumption arises that the goods were not in such defective condition when they were booked and, therefore, it is not open to the railway administration to say that the deterioration was the result of the defective condition of the goods when they were booked.

37. Mr. Shah's argument cannot be accepted also because no merchant of mangoes who is a man of ordinary prudence and practical sense would think of packing ripe mango fruits to a destination station which is at a distance of 1,800 kilometers from the booking station knowing full well that the same were to be damaged or deteriorated in condition during the transit unless it be taken that he was out to enter into lengthy and expensive litigation with the railway administration, particularly when such consignments are booked on pre-payment of the freight, without expectation of any profit thereby. The plaintiffs have given evidence to show that the mango fruits were fresh when packed. There is no reason why the said evidence of the plaintiffs should not be accepted. We, therefore, find in all the cases that the goods, meaning thereby the mango fruits, were damaged or deteriorated as a result of delay or detention in transit.

38. The plaintiffs having succeeded in proving that there was delay or detention in transit and that the goods were damaged or deteriorated in condition as a result of said delay or detention in transit, the burden shifts on the railway administration to prove that such delay or detention in transit was without negligence or misconduct on its p Article It is important to note that though asked for, by the plaintiffs, the railway administration failed to supply the documents relating to the transit particulars of the consignments in question. The railway administration also failed to produce and prove such document in support of its case. In State of Punjab v. M/a. Modem Cultivators : [1964]8SCR273 the classic decision of the Privy Council in Murugesam Pillai's case (A.I.R 1917 PC 6) was approved, and it was in terms held that if the Government Canal Organisation had in its possession all the relevant document, and reports to how the canal breach bad occurred and what was done to stop it and if such documents were not produced, an inference could be legitimately made that if produced, they would have gone against the case of the State, that is, they would have proved that the State had been negligent. In view of this settled legal position, therefore, the presumption arises that if those documents were produced, they would not have supported the case put forward by the railway administration. The only explanation offered by the railway administration is that the Southern Railway had to hand-over the wagons containing suit consignment to the Southern Central Railway at Raicnur and the South Central Railway had to hand-over the same to Central Railway at Poona and the central Railway had to hand-over the same to Western Railway at Dadar. According to the railway administration, this handing over procedure at different stations by one railway to other railway took considerable time and, therefore, the goods could not be delivered earlier. It is not shown as to what difficulty was there in immediately handing over the wagons containing the goods in question to the South Central Railway at Raichur by the Southern Railway. Similarly, it is not shown as to what difficulty was faced by the South Central Railway in handing over the wagons to Central Railway at Poona. The only difficulty tried to be pointed out by the railway administration is that at Dadar Railway ration because of the heavy railway traffic, it was not possible for the Central Railway to hand-over the wagons to the Western Railway during day time. The wagons could be handed-over to the Western Railway in the following morning if they were received at Dadar after 6.00 am. If this was true, the railway administration could have proved it by producing transit particulars of the wagons at Dadar Railway Station. Some transit particulars have beep produced in some cases. However on these transit particulars, it has been shown by Mr. Agarwal that in some cases the Central Railway had handed-over the wagons to the Western Railway within half an hour at Dadar and even in the evening. This shows that the explanation tried to be put forward by the railway authorities for the delay in handing over the wagons by one railway to other railway is without any substance. Mr. Agarwal has also pointed out from the evidence of the witnesses examined by the railway administration that even at Dadar Railway Station the wagons in question could have been taken to the goods yard and there they could have been immediately handed over to the Western Railway. The explanation offered by the railway authorities for delay in transit is not supported by documentary evidence which is presumed to be in possession of the railway administration and which has not been produced. The explanation offered by the railway authorities for the delay in all the cases does not sound convincing and therefore, it shall have to be held that the railway administration has failed in all the cases to show that the delay in carriage was caused without negligence or misconduct on its part or on any of its servants.

39. The railway administration having failed to discharge the burden cast on it under Section 76 of the Act, the plaintiffs are entitled to succeed on the ground that the goods were damaged or deteriorated in condition because of delay or detention in transit.

40. As regards the quantum of compensation, Mr. Agarwal has stated before us that he has no quarrel as regards the amounts awarded in different cases. So far as the appeals filed by the plaintiffs are concerned, they are three in number. In First Appeal No. 177 of 1973, the plaintiffs claimed Rs. 3,758.50 paise including Rs. 25/- as notice charges. The Court awarded Rs. 2,255.35 paise including notice charges of Rs. 15.25 paise. There being no quarrel with the amount awarded, the plaintiffs' suit should be decreed for a sum of Rs. 2,255.35 paise with running interest at the rate of 6 per cent, per annum from the date of the suit till realisation.

41. In First Appeal No. 306 of 1973, plaintiffs' suit was for Rs. 2,991.08 paise including Rs. 25/- as notice charges. The trial Court has fixed the amount of compensation at Rs. 1,341.75 paise, though the suit has been dismissed. Even as regards the amount fixed by the trial Court in this appeal, Mr. Agarwal has no quarrel.

42. In First Appeal No. 594 of 1973, plaintiffs' suit was for Rs. 3,664.04 paise. Mr. 4 Agarwal limits his claim to Rs. 3,184.16 paise. There fore, a decree for that amount should be passed in this appeal No. 594 of 1973. Similarly, a decree as aforesaid should be passed in favour of the plaintiffs in First Appeal No. 306 of 1973. In both these appeals the plaintiffs will be entitled to recover the aforesaid amounts with running interest at the rate of 6 per cent per annum from the date of the suit till realisation. In both these appeals amount of notice charges of Rs. 15.25 paise each shall be added to the aforesaid amounts. That will bring the total amount of Rs. 1,357.00 in First Appeal No. 306 of 1973 and to Rs. 3,199.41 paise in First Appeal No. 594 of 1973.

43. Mr. Shah for the railway administration has argued that the railway administration made the assessment of damages without prejudice and, therefore, the plaintiffs cannot avail of any benefit under the assessment made by the railway administration. This argument cannot be accepted because the assessment reports have been produced and relied upon by the railway administration in evidence. Such certificates of assessment of damages issued by the railway administration can be looked into for fixing the measure of damages. Merely because the assessment was made without prejudice to the railway liability it cannot be held that the assessment reports cannot be looked into as evidence.

44. The result is that First Appeals Nos. 177 of 1973, 306 of 1973 and 594 of 1973 are allowed, and in all these appeals the suits of the plaintiffs are decreed as aforesaid with costs all throughout in view of the fact that the assessment of damages put forward by the plaintiffs in their claim was reasonable and not excessive in any manner. So far as the railway appeals are concerned, we find that there is no substance in any of these appeals and, therefore, the same are dismissed with costs. Mr. Shah for the Railway Administration has requested us to issue a certificate for leave to appeal to the Supreme Court in all these appeals. In all these appeals we have referred to two decisions of two different High Courts on the question of interpretation of Section 73, 74(3) and 76 of the Act. We have differed from the view taken by the learned single Judge of the Calcutta High Court in : AIR1967Cal133 and we have agreed with the view expressed by the learned single Judge of the Madhya Pradesh High Court in : AIR1972MP201 . In view of the fact that two High Courts have given two different views as regards the interpretation of Section 73,74(3) and 76 of the Act, we think that the appeals involve a substantial question of law of general importance which, our opinion, requires to be decided by the Supreme Court. We, therefore, issue the certificate as prayed for, in all these appeals.


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