Salil Kumar Datta, J.
1. This is an appeal by the Union of India against the judgment and decree of reversal decreeing the plaintiff's suit for compensation for damages in transit of a consignment of mangoes.
2. According to the plaint, a consignment of 451 baskets of mangoes was booked on May 13, 1956 at Coconada port for delivery at Shalimar. Normally the time taken for delivery was 5/6 days but the consignment, in the instant case, was seriously delayed in transit due to the negligence of the railway with the result that the consignment arrived at destination on May 25, 1956 in damaged and decomposed condition. Assessment delivery was taken and damage assessed by the Railway was 75%. The plaintiff accordingly suffered loss for Rs. 2875-2-0. Requisite notices under the law were served on the General Managers of the Railways concerned and as the amount claimed was not paid the present suit was instituted by the plaintiff as the consignee, for valuable consideration.
3. The defendant, the Union of India, contested the suit by filing a written statement wherein the alleged liability was denied and it was also stated that the delay if any, was due to a strike by the Khurda Road Station guards and as such the Khurda Road Station was rot able to take the train during the time. The delay, if any, was thus unavoidable and was not due to negligence or misconduct of the railway employees. The wagon holding the suit consignment arrived at Waltair on May 15, and left Palasa on 20th to reach Bhadrak on 22nd. It left Kharagpur on 24th reaching destination on the following day i.e. May 25, 1956. The damage was due to the bad condition of the goods and inherent vice therein. The notices were not legal or valid while the damage claimed was excessive. In the premises the defendant prayed for dismissal of the suit.
4. The suit was tried on evidence before the learned Munsif who held that suit was maintainable by the plaintiff and further on concession that requisite notices were legal and valid. It was however found that there was unavoidable delay and the consignment got damaged because of inherent vice. The damage claimed was fair but in the view that was taken as above, the suit was dismissed.
5. An appeal was preferred by the plaintiff against the said decision and the appellate court held that the strike at Khurda Railway Station was not sole reason for such delay. The finding of the trial court as to the inherent defect in the goods was held to be based on conjecture and assumption and was set aside. The court also found that 5/6 days was the usual time for such transit and it was held in the circumstances that the delay was caused due to carelessness and negligence on the part of the railway. The appeal was, accordingly, allowed and the suit was decreed for the amount claimed. The present appeal is by the Union of India against the said decision.
6. Mr. A. K. Basu, the learned counsel appearing for the appellant has contended that the appellate court erred in not considering the provisions of Section 74-C of the Indian Railways Act after amendment of 1949 which governed the case. The court further erred in not holding that in absence of any evidence by the plaintiff that there was misconduct or negligence on the part of the railways, the onus in respect whereof lay with the plaintiff, the railways were not liable for the amount claimed in the suit. Mr. Basu also contended that the plaintiff was further required to prove that the delay, if any, caused the damage to the consignment which was not done. The suit therefore, should have been dismissed.
7. Mr. C. Tondon the learned Advocate appearing for the plaintiff-respondent contended that the railway was to prove that there was no negligence on its part, as the movement of the wagon was within its special knowledge; that the railway was to prove that it took reasonable care of the consignment as a bailee as also provided in Section 76. In the instant case, the appellate court has rightly found in the circumstances that there was unreasonable delay in the movement of the wagon, which was not explained and the delay thereby caused, damaged the consignment of mangoes.
8. Section 72 of the Act fixes the liability of the railways as a bailee subject to the other provisions of the Act. Under Section 74-C (3) the railway administration shall not be responsible for loss, destruction, damage or deterioration or non-delivery in transit of the goods except upon proof that the same was due to negligence or misconduct by its employees. Before the railway thus can be fixed with the liability, negligence or misconduct on part of its employees must be proved. Accordingly, as contended by Mr. Basu, the burden of proof of negligence or misconduct lies squarely on the plaintiff who is the claimant for damages, except in cases of non-delivery or pilferage only at owner's risk. Under Section 74-D the railway in such a case is to make disclosure to the claimant as to how the consignment was dealt with by the administration throughout the time it was in its possession or control and if negligence or misconduct by the railway employees cannot be fairly inferred therefrom, the burden of proving such negligence or misconduct will be on the part of the plaintiff. The section however, has no application here.
9. Section 76 of the Act lays down that in suits against railway for compensation for loss, destruction or deterioration of goods in transit, it will not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused. Relying on this provision it was held in Indian Trade and General Insurance Co. Ltd. v. Union of India, : AIR1957Cal190 , in case of a damage caused to a consignment of jute by fire that it is not for the plaintiff to prove in the first instance as to how the loss or destruction took place, though ultimatley it rests with the plaintiff to prove negligence. The plaintiff will have to prove that the defendant was negligent but the duty of showing as to how the goods were dealt with lies with the defendant. Plaintiff may rely on that evidence and in addition, may tender further evidence to show that the loss occurred by reason of the defendant's default or negligence and but for it the loss would not have occurred.
10. Mr. Basu has, however, relied on the decision in Rasabati Bewa v. Union of India, : AIR1961Ori113 , where it was held that the duty for disclosure is confined to cases under Section 74-D and not to cases covered by Section 74-C. He has also relied on the decision in Bengal & North Western Railway Co. Ltd. v. Sobrati Mia, AIR 1944 Cal 50 where it was held in respect of a consignment under risk note it that the consignor must prove misconduct on part of the railway and also that damage was due to misconduct.
11. Mr. Basu has also relied on an unreported decision of a Division Bench of this Court in Union of India v. Sree Narayan Agarwala, F. A. No. 396 of 1963, D/- 17-12-1970 (Cal), where it was held that the plaintiff has to prove negligence or misconduct under Section 74-C, as loss or damage in respect of a consignment is not proof of negligence or misconduct. In this case the goods were damaged by rain water as the wagon was not water-tight. Remembering the season when there was no likelihood of rain, the action of the railway in putting the consignment in a wagon, not water tight, was not considered an act of negligence by the railway. The court relied on a decision in Union of India v. Biswanath, : AIR1959Pat473 where also it was held that loss or damage is not prima facie proof of negligence or misconduct and as the consignment was not properly packed as required, it was necessary under the law for the plaintiff to put materials before the court to prove negligence or misconduct.
12. The position, therefore, is that in cases governed by Section 74-C, the plaintiff has to prove, in addition to damage, loss etc. in respect of a consignment, negligence or misconduct on the part of the railway or its employees. In disproving the plaintiff's case of negligence or misconduct of railway employees, the railway will be normally expected to disclose and prove as to how the consignment was dealt with during the period it was under its power or control. Undoubtedly under Section 106 of the Evidence Act. It should also be the duty of the railway to disclose such facts as are within its special knowledge and if it is not so done, the court may make necessary presumption under Section 114(g). There is nothing in the Railways Act to exclude the operation of Section 106 of the Evidence Act when the plaintiff has given his evidence not only in respect of loss of or damage to a consignment but also of negligence and misconduct. I am, accordingly, unable to subscribe to the view taken in the case of Union of India v. Muralidhar, AIR 1951 Assam 173 relied on by Mr. Basu that in respect of Risk Note A the proof of liability or otherwise of the railway is not governed by Section 106. If, therefore, after the plaintiff has led his evidence in support of his case of damage and loss as also of the negligence and misconduct of the railways, the onus in respect thereof being entirely on him. the railway elect not to disprove the same, it will do so at its peril, as the Court will then be entitled to decide the case on the evidence adduced by the plaintiff and in coming to a decision, will be entitled to make presumption warranted by Section 114(g). This view does not go against the principle enunciated by the Supreme Court in a recent case of Jeetmal Ramgopal v. Union of India. C. A. No. 1228 of 1967, D/- 19-1-1971 (SC) where it was held that it should be proved that the less arose from misconduct on the part of the railway administration and the burden of proof of misconduct under the terms of the risk note clearly lay upon the appellants.
13. That the railway could not take such risk is evident by the written statement filed by the defendant as also by the evidence adduced in the trial. When parties have adduced evidence the question of onus becomes immaterial and the court will proceed to decide the matter on the materials before it.
14. Corning now to the facts of the case, we find that the plaintiff's evidence was that generally 5/6 days are taken for the goods to move from Coconada to Shalimar by goods train and 3 days by parcel train and in ventilated wagon mangoes can stand journey for 6 or 7 days. About damages there is no dispute in view of the assessment delivery. Admittedly, the goods were delivered after 13 days and there is no rebuttal evidence on part of the railways about the time taken for goods train to move between the stations in question.
15. D.W. 1 who speaks from records, says that the concerned wagon was stabled at Ichhapuram on account of guards trouble as some guards did not join duties in Knurda Palasa area though all guards did not loin in the strike and there was also guards trouble at Khargpur.
16. The movement of the concerned wagon as appearing from the written statement and evidence in support appears as follows:--
Distance in Km between stations as per Railway Time tableStations and movement of wagon.Dates of wagon movements.
Left Coeonada 22,55 hrs.13.5.5650Reach Waltalr15.5.56203Left Palsa20.5.5850Ichhapuram stabled20.5.56171Khurda Road 162Reach Bhadrak22.5.56178Left Kharagpur24.1.56120Reach Shalimar25.5.56
17. The strike is alleged to have occurred in Palasa and Khurda Road section. No reason has been ascribed as to the inordinate time that was taken from Waltair to Palasa, a distance of 203 Km. and the time taken was five days from Coconada to Waltair.
18. There is no evidence that there was a strike ahead of Palasa to Waltair. The plaintiff has proved that there has been a delay of 6/7 days and the railways while not disputing the delay, tried to explain away the same for certain reasons. But as stated above, for the delay of about 5 days in all there is no explanation and In agreement with the appellate court it must be held that the cessation of work by some guards is not the sole reason for the delay, and particularly not at all of the delay between Coconada to Waltair and Waltair to Palasa, when according to the written statement the train stabled at Khurda Road and at Ichhapuram according to the evidence, due to strike.
19. As to the contention of Mr. Basu that it must also be proved that the delay caused the damage. P. W. 2. the Clearing Agent of the plaintiff doing such work for 30 years said that in ventilated wagons mangoes can stand journey for 6/7 days. I also further think that the court can presume that the delay for about 6/7 days when the consignment of perishables like mangoes was with the railways caused the deterioration of the goods as was also presumed in case of potatoes in the case of Union of India v. Ganesh. Chandra Das, : AIR1959Cal337 .
20. It must, accordingly, be held In agreement with the appellate court, that the railway has been guilty of negligence in transporting goods from Coconada to Shalimar which caused the delay in transit and the delay in its turn caused the damage to the goods. The plaintiff, therefore, is entitled to the damage claimed in the suit.
21. The appeal, accordingly, fails and is dismissed with costs -- hearing fees being assessed at three gold mohurs.