V. Balasubrahmanyan, J.
1. The question which has been raised in this revision is about the liability of the Railways for damage and loss of 40 bags of gram dhall, out of a consignment of 100 bags; sent from Okhala to Coimbatore. They were despatched in Okhala on 2nd May, 1973 and arrived at Coimbatore railway station on 22nd May, 1973. On taking open delivery of the consignment, it was found that 40 bags were wet and damaged. The value of the damage was Rs. 689.50. The consignee, after issuing the statutory notice to the Railways, filed a suit in the Court of the Subordinate Judge of Coimbatore, for recovery of this amount. The defence put: forward by the Railways was two-fold, namely: (i) that the damage was due to inherent quality or vice of the 'dhall' which was wet even at the time of the despatch; and (ii) that there was violation of packing conditions of the consignment prescribed under the rules with particular reference to the usage of non-standard size of dunnage bags.
2. At the trial it was found that the consignment was carried in transit from Okhala to Coimbatore within a matter of 3 weeks without any transhipment. The goods-clerk of Coimbatore Railway station had made a report on the date when the goods arrived there. He also gave evidence at the trial. The forwarding note was also marked in evidence on the side of the Railways.
3. There was also marked in evidence a Telegraphic Inter-departmental memo, which was supported to refer to this particular consignment and the standard dunnage used in the wagon. The evidence of the Goods; Clerk was that on a visual inspection of the wagon the seals and riverts were found intact at the destination and there was no scope for leakage, although in the report it was not stated by him that the construction of the wagons itself was water-tight. The Inter-departmental' memo, stated that the consignor had used 6 dunnage bags of sub-standard quality. This however, could not be correlated with the entry in the Forwarding note which mentions the dunnage bags utilised in the wagon as numbering 3 only as part of packing conditions.
4. The learned Subordinate Judge took note of the declaration by the consignor in the Forwarding note that only 3 dunnage bags; had been employed as part of the packing conditions . He also took note of the evidence of the Inter-departmental communication to the effect that the dunnage bags were defective or sub-standard. On this basis, the learned Judge took the view that it was for the plaintiff to establish by evidence that at the time the goods were booked at Okhala, they were in a sound condition but there was no evidence on this aspect. The learned Judge finally entered the finding that there was no negligence or mis-conduct on the part of the Railways in the carriage of the goods and the damage must have been due to only inherent vice in the goods owing to the use of the non-standard size dunnage bags in the wagon. On this basis, the learned Judge dismissed the suit.
5. In this revision brought by the plaintiff against the dismissal of the suit, the plaintiff's learned Counsel submitted that the finding that the goods suffered damage because of inherent vice is not based on evidence and was, in any case, arrived at by a reversal of the burden of proof. Learned Counsel submitted that the defence of inherent vice which was taken by the Railways in this case, had to be established by the Railways and even in so doing the Railways were not absolved of the responsibility for leakage or loss unless the Railways proved that they used reasonable foresight and care in the carriage of the goods. According to the learned Counsel for the plaintiff, the learned Judge was not right in law in expecting the plaintiff to prove that the goods were in a sound condition. Learned Counsel then urged that there was practically no evidence on the side of the Railways to prove the inherent vice of the goods.
6. The plaintiff's learned Counsel further submitted that the finding on the use of sub-standard size dunnage in the wagon was also not based on acceptable evidence. Learned Counsel pointed out that the attempt of the Railways to make out that packing conditions had not been complied with in so far as substandard dunnage had been used in the wagon, was not fully borne out by the endorsement in the consignment bill which did not show that there was any sub-standard dunnage bags used. Learned Counsel pointed out the discrepancy between the mention of 3 dunnage bags both in the Forwarding note and in the Railway Receipt, on the one hand, and the evidence of the Goods clerk and the Interdepartmental memo., according to which as many as 6 dunnage bags were used in the wagon. In this state of the evidence, according to the learned Counsel, the learned fudge was not justified in recording a finding as though the employment of sub-standard dunnage bags had been clearly established by the evidence.
7. Learned Counsel for the Railway Administration, however, submitted by reference to the General Rules for Acceptance, Carriage and Delivery of Goods, called Goods Tariff by Indian Railway, that on the declaration contained in the plaintiff's forwarding note itself, no liability for the negligence can be faisted on the Railways. Learned Counsel referred to the special condition attached to the consignment of dhall. He referred to the particular provisions in the Goods Tariff Regulations in Section 3, marked with the district letter Section 27. Learned Counsel submitted that according to this regulation the dunnage bag of the prescribed size and the contents must be used to protect the consignment in wagon loads and, in the case of consignments in broad gauge or meter gauge without transhipment, the minimum number of dunnage bags must be 6. Learned Counsel pointed out that the forwarding note of the plaintiff itself clearly mentioned that only 3 dunnage bags had been employed in the wagon. Learned Counsel accordingly submitted that the railways cannot be held responsible for the damage caused to, the 40 bags out of the total consignment.
8. Similar argument as that which has been addressed before me by the learned Counsel for the railways must obviously have been addressed before the Court below and it has been accepted without question. I, however, cannot agree with this submission. It seems to me that the evidence on record on this aspect of dunnage is not consistent. If the contention of the Railways is to be accepted that. dunnage used was sub-standard, then that case is coupled with the contention that 6 dunnage bags were used. If, on the contrary, the entry in the forwarding receipt and the forwarding note is to be accepted as the basis of the Railways defence, then there is nothing to show that any of the dunnage bags was substandard.
9. Learned Counsel for the Railways nevertheless urged, as a matter of law, that even accepting the plea of the plaintiff that part of the consignment of dhall had been damaged in transit, yet the Railways have a, good defence having regard to the provisions of Section 77-C(1)(b) of the Indian Railways Act, 1890. In order to make good this submission learned Counsel relied on the forwarding note executed by the consignor with reference to this suit consignment, marked at the trial as Exhibit B-2. Learned Counsel pointed out that there was a clear recording by the plaintiff to the following effect.
P-7 not complied with. Swoon weak.
I have been assisted by learned Counsel is finding out the Script mark by the consignor with the aid of the Goods Tariff Regulations. Chapter VIII of the Regulation shows that dhiall as a subject of transport through Railways must comply with the packing conditions. So far as outer-packing is concerned it must comply with the terms of the regulations marked in V-7 and P-8. It is unnecessary to go into the detail as to what are the conditions prescribed under the code letters P-7. Suffice to say that those conditions are many and various. They relate to net weight of the contents, the material out of which the packing is to be made, the kind of stitches to be made, how particular threads will have to be stretched, and various other minute specifications. In the context of these Regulations, when the consignor recorded in the forwarding note Exhibit B-2, 'P-7 not complied with- Swoon weak', he must be taken to have accepted this position that the consignment was defectively packed or at any rate packed in a manner not in accordance with the General Orders issued under the Goods Tariff Rules, orders which have been issued by the Railways in exercise of their powers under Section 77(c)(4) of the Act. Learned Counsel, for the Railways referred to Section 77-C(1) of the Act and said that in cases where the consignor has recorded defective or improper packing in the Forwarding note, then the Railway administration shall not be responsible for any damage, deterioration, leakage or wastage, nor even for the condition in which the consignment was available for delivery at destination, in the absence if strict proof of negligence or misconduct on their part or on the part of their servants. Learned Counsel submitted that this position of law laid down by Section 77-C was an overriding provision in view of the clear enactment by this section that those provisions would have to be enforced notwithstanding; anything contained in Chapter VII of the Act, including Section 73.
10. To this submission made by the learned Counsel for the Railways, I did not hear any argument particularly addressed by the counsel for the plaintiff on the basis of the records such as the forwarding note. There is no record made by the consignor himself in the forwarding note to the effect that P-7 had been fully complied with in respect of the suit consignment. The question then is whether the Railways can be absolved of any liability whatever for the damage to the consignment under Section 77-C(1) of the Act.
11. Section 77-C(1) poses no problem, of construction. Hence I shall set out the section verbatim: 77-C (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 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:
12. It is quite clear from the language of the section that the moment it is found by the Court that the defective or improper packing had been recorded in the forwarding note, then the railway administration is absolutely absolved from its liability for any damage or deterioration or leakage of the consignment. The burden against the Railways as indicated in Section 73 of the Act would be of no avail. On the contrary, in a situation contemplated by Section 77-C(1) of the Act the consignor of the goods in order to make a claim against the railway administration for negligence or leakage has to discharge the burden by showing that the leakage or damage was entirely due to the railway administration or its servants.
13. In the present case I am satisfied that on the very terms of the endorsement made by the consignor in the Forwarding Note. Exhibit B-2, the conclusion is irresistible that the Railways cannot be made liable, since there is no evidence let in by the plaintiff at the trial that the goods were damaged only owing to the absence of care by the railways or by any misconduct or the part of the railway or its servants. The whole case of the plaintiff proceeded on the basis that the negligence should be presumed against the railways. The consequence is that there is no evidence whatever on the basis of which the railway administration can be held liable for the damage or leakage is this case.
14. The learned Counsel for the plaintiff however urged that the construction of Section 77-C(1)(b) must be reasonable. He said that a record made by the consignor in the forwarding note in respect of defective or improper packing by itself should not be held to be sufficient in itself to absolve the railway administration from liability. There was no justification he said, for reading Section 77-C(1)(b) as containing a rule of law io the effect that the moment it was found in the forwarding note that the consignor had recorded defective or improper packing of the consignment, the entire burden of establishing negligence shifted to the consignee of the goods and the usual presumptions against the railways would be of no avail. Learned Counsel submitted that apart from the fowarding note containing a record of defective or improper packing it must also contain an indication to the effect that the nature of the goods forming part of the consignment was such that the defective or improper packing would lead to damage, deterioration or leakage of the goods in transit. For advancing this proposition, plaintiff's counsel relied on the judgment of a learned single Judge of Calcutta High Court in Union of India v. Laduram Fakirckand : AIR1974Cal207 : A.I.R. 1974 Cal. In that case, the learned Judge was dealing with the forwarding note in which there was an endorsement of the consignor to the effect that the time which contained the consignment, namely groundnut oil, were old and not created and the packing specifications is R-3 were not complied with. There was no other endorsement in the forwarding note. It was not said in the forwarding note that the defective packing at the time was such that there was a risk of the oil being damaged, deteriorated or that it might leak or get wasted. Before the learned Judge the action for damage in transit was resisted on behalf of the railways by referring to Section 77-C(1)(ft) of the Act. It was urged on behalf of the railways that it was enough for the purpose of Section 77-C(1)(b) of the Act that the forwarding note admitted defective packing. The 207. learned Judge however did not agree with, this contention. He held that the forwarding note only recorded defective or improper packing, but it had not recorded the consequence of such defective or improper packing. Hence, in his judgment, Section 77-C(1). (b) could not be called in aid by the railway administration. According to the learned Judge, there were two parts to the section ; one which related to defective packing or packing not in accordance with the general or special orders of the Government and the other which related to the recording of defective or improper packing in the forwarding note. On this basis, the learned Judge observed as follows:
Reading these two parts together, in my opinion, not only the fact of defective or improper packing should be recorded in the forwarding note but it has to be further recorded that as a consequence, of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage.
The learned Judge proceeded to observe that in order that the railway administration may be absolved of its liability under Section 73, it is necessary that in the forwarding note not only should there he a recording about the defective or improper packing of the goods but also there should be a further recording to the effect that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage.
15. With respect, I do not agree with this enunciation of the legal position under Section 77-C(1)(b) of the Act. The section as I said earlier does not pose any difficulty of construction. On the plain words of the section, the one and the only requisite for the reversal of the burden of proof is the matter of negligence or misconduct in that improper or defective packing must be recorded by the sender or agent in the forwarding note. The section does not either in express terms, or by necessary intendment, require that the sender or his agent should also state in the forwarding note that the packing is so defective or improper that it would lead to damage deterioration, leakage or wastage. Quite apart from the plain language of section not permitting the construction which has found favour with the learned Judge, it is quite opposed to the ordinary stress of human behaviour to expect the sender not only to state that packing is not upto the mark but also to say that he expects that the packing would lead to deterioration, leakage or wastage of the contents thereto even during transit.
16. I am not persuaded that the opinion expressed by the learned Judge of the Calcutta High Court is the correct view on the construction of this provision.
17. For all the above reasons, I hold there are no merits in the civil revision petition. The petition is accordingly, dismissed, but in the circumstances of the case, there will be no-order as to costs.