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Union of India (Uoi), Representing South-eastern Rly., Calcutta Vs. Laduram Fakirchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1762 of 1972
Judge
Reported inAIR1974Cal207,77CWN983
ActsRailways Act, 1890 - Sections 73 and 77C(1)
AppellantUnion of India (Uoi), Representing South-eastern Rly., Calcutta
RespondentLaduram Fakirchand
Appellant AdvocateAjoy Kumar Basu, Adv.
Respondent AdvocateShaktinath Mukherjee and ;Mrinal Kanti Das, Advs.
Excerpt:
- .....submits that in view of sub-section (1) of section 77-c it should have been held that the railway administration was not at all liable unless the opposite party could prove negligence or misconduct on the part of the railway administration, or, ofany of its servants. sub-section (1) of section 77-c of the indian railways act (hereinafter referred to as the 'act') is as follows :'(i) when any goods tendered to a railway administration to be carried by railway- (2) 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.....
Judgment:
ORDER

Murari Mohan Dutt, J.

1. This Rule is against the judgment and the decree of the lower appellate Court upholding those of the trial Court with a slight modification.

2. The suit out of which this Rule arises was instituted by the opposite party. _a partnership firm, against the Union of India representing the South Eastern Railway praying for compensation to the extent of Rupees 958.80 on account of short delivery of a consignment of ground-nut-oil. A consignment of 686 tins of ground-nut oil was booked on August 1, 1965 from Ex-Metur Dam to Bankura and the opposite party firm was the consignee for valuable consideration in respect of the said consignment. When the goods reached the destination station. 17 tins were found partially empty and 13 tins entirely empty resulting in a total loss of 282 kg. of ground-nut oil. The opposite party claimed the price of the oil delivered short at the rate of Rs. 3.40 per kg. amounting to Rs. 958.80.

3. The petitioner, the Union of India, contested the suit by filing a written statement. Its case was that the consignment was booked at the owner's risk rate and that the tins were old and not crated according to the rules. It was alleged that the wagon was sealed and rivetted in the presence of the consignor after loading and that the same arrived at the destination station with those in tact. The petitioner denied that the shortage was due to the negligence or misconduct on the part of the Railway or its employees. The petitioner also alleged that the rate of price claimed by the opposite party firm was excessive.

4. The learned Munsif upon considering the evidence of the parties decreed the suit in full. Being dissatisfied with the judgment and the decree the petitioner preferred an appeal which was heard by the learned Subordinate Judge, First Court, Bankura. The learned Subordinate Judge affirmed the judgment and the decree of the learned Munsif with this modification that instead of Rupees 958.80 as claimed by the opposite party the suit was decreed for the sum of Rs. 857.28. The appeal was, accordingly, allowed by the learned Subordinate Judge in part. Hence, this Rule at the instance of the petitioner, the Union of India.

5. It has been found by the learned Subordinate Judge that the goods were not packed in accordance with condition P/3, or, in other words, the goods were defectively packed or packed in a manner not in accordance with the said condition, P/3 which lays down that each container or group of containers must be enclosed in a wooden case. Mr. Basu, the learned Advocate appearing on behalf of the petitioner, submits that in view of Sub-section (1) of Section 77-C it should have been held that the Railway Administration was not at all liable unless the opposite party could prove negligence or misconduct on the part of the Railway Administration, or, ofany of its servants. Sub-section (1) of Section 77-C of the Indian Railways Act (hereinafter referred to as the 'Act') is as follows :

'(I) when any goods tendered to a Railway administration to be carried by railway-

(2) 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.'

6. Under Section 73 except as otherwise provided for in the Act the 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 some acts which are mentioned in the said section with which we are not concerned. Section 73, therefore, lays down the general responsibility of a Railway Administration as a carrier of animals and goods. If the conditions of Section 77-C are satisfied, in the case, the Railway Administration cannot be held liable. In this connection, it may be stated that in the railway receipt, Exhibit D and in the forwarding note, Exhibit E, there are endorsements to the effect that the tins were old and not crated and that P/l and P/3 were not complied with. It is not disputed that condition P/l does not apply to the facts of the present case. It is also not disputed that condition P/3 was not complied with. Mr. Basu, the learned Advocate for the petitioner, submits that as the defective packing has been recorded in the railway receipt and in the forwarding note, the Railway Administration should be held to have been discharged of the general responsibility as contemplated under Section 73. The question is whether a statement about the defective packing in the forwarding note or in the railway receipt is sufficient compliance with the provisions of Clause (b) of Sub-section (1) of Section 77-C. The first part of Clause (b) refers to the defective packing or packing in a manner not in accordance with the general or special order and as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage. The second part of Clause (b) refers to therecording of such defective or improper packing in the forwarding note. 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 expression 'and the fact of such condition or defective or improper packing has been recorded' is significant. 'Such defective or improper packing' only refers to the defective or improper packing which renders the goods to damage, deterioration, leakage or wastage. In my view, therefore, 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 there should be a recording about the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage. In the instant case, in the forwarding note it has only been recorded that the tins were old and not crated and that conditions P/l and P/3 were not complied with. In other words, in the forwarding note only the fact of defective or improper packing has been recorded, but the consequence of such defective or improper packing has not been recorded. The learned Subordinate Judge was therefore justified in holding that Clause (b) of Section 77-C (1) was not available to the Railway Administration. Moreover, the learned Judge has observed that none of the witnesses stated that the tins were in such a condition that there could have been leakage or bursting of joints at the bottom during the ordinary course of transit from the booking station to the destination station.

7. For the reasons aforesaid, the judgment and the decree of the learned Subordinate Judge are affirmed and this Rule is discharged. But there will be no order as to costs.


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