K.S.PALANISWAMI, J. - (1.) THE plaintiff, a firm doing business in dyes and chemicals : with head office at Bombay and a branch at Madras, is the appellant. On 21st March, 1959, the plaintiff's head office at Bombay consigned 12 drums of hydro sulphite of soda to self to Salt Cotaurs, Madras. The consignment was booked at Wadi Bunder at railway risk note. The consignment was loaded in wagon No. SRCS. 4976. The wagon left Wadi Bunder at 9 -40 a.m. on 26th March, 1959, and arrived at Kalyan at 1 -30 p.m. the same day. The wagon left Kalyan at 9 -45 p.m. the same day and arrived at Poona at 2 -30 p.m. on 30th March, 1959. There was a break in the journey at Poona so far as the wagon in question was concerned. The wagon was found at 6 a.m. at Poona station yard in front of what is called " Bombay Goods Shed." Subsequently it was sent to another line called " Poona two line." When the wagon was on this line, fire broke at about 8 p.m. on 31st March, 1959. The railway officials at Poona took action to put out the fire, but nothing could be salvaged in proper condition so far as the plaintiff's goods were concerned. Correspondence passed between the parties and ultimately the plaintiff laid the suit on 1st May, 1960, alleging that the loss of the goods was due to the misconduct and gross negligence on the part of the servants of the railway and that due care and caution in handling the goods had not been bestowed. A sum of Rs. 6,048 was claimed as the value of the goods from the Union of India owning the Southern Railway impleaded as the first defendant and the Union of India, owners of the Central Railway impleaded as the second defendant.
(2.) THE defendants contended that the Enquiry Committee which went into the cause of the accident found that the accident was due to causes beyond the control of the Railway Administration, that there was neither negligence or misconduct on the part of the railway or its servants, that all necessary care and caution were bestowed in carrying the goods and that the plaintiff was not entitled to any relief.
(3.) THE trial Court found that the fire was due to some accidental cause for which the railway was not responsible. On the question of value, the trial Court found that the amount as claimed by the plaintiff was correct. In the result, the suit was dismissed. The Indian Railways Act (IX of 1890) has undergone several changes from time to time. Substantial changes were made by the Amending Act LVI of 1949, which came into force on 1st August, 1950. There were several subsequent amending Acts which also made substantial changes. But, for the purpose of this case it is unnecessary to refer to the changes made after 1959, as the consignment in question was in the year 1959. All that is necessary to bear in mind is the position of the Act as it stood at that time. Section 59 (1) states that no person shall be entitled to take with him, or to require a Railway Administration to carry any dangerous or offensive goods upon railway. Section 47 confers power upon the Railway Administration and the Government to make rules. Clause (c) of Sub -section (1) of that section empowers the making of rules for declaring what shall be deemed to be, for the purposes of the Act dangerous or offensive goods, and for regulating -the carriage of such good. In exercise of such power, rules have been made with regard to dangerous and offensive goods. Such rules are compendiously called " Red Tariff No. 17 " a copy of which has been marked as Exhibit B -11 in this case. We shall presently advert to the relevant provisions. The Act provides for payment of tariff at two rates, ordinary tariff rate which is called railway risk rate and special reduced rate called the owner's risk rate. The rate at which tariff is paid has an important bearing on the question of burden of proof in a case for recovery of damages against the railway for loss, destruction, deterioration or damage to the goods. Sub -section (1) of Section 72, as it then stood, inter alia states that the responsibility of a Railway Administration for the loss, destruction, deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. Section 72 had a Sub -section (2) which was deleted by the Amending Act LVI of 1949 to which we shall have occasion to refer in due course. By that amending Act new Sections 74 -A to 74 -B were added replacing certain forms which were called risk notes containing terms subject to which goods were to be consigned. In the case of goods consigned under the owner's risk, the Railway Administration is not responsible for any loss, destruction or deterioration or damage to goods from any cause whatsoever except upon proof that such loss, destruction or deterioration or damage was due to negligence or misconduct on the part of the Railway Administration or any of its servants. In the case of consignment' of goods under railway risk rate, it is not for the consignor suing for damages to prove either negligence or misconduct on the part of the Railway Administration or its servants. In such a case, if the consignor or consignee suing to recover damages proves either non -delivery or damage, it is for the railway to prove that they have exercised the care required of a bailee as laid down in the Indian Contract -Act, 1872. Vide Mankuram v. Indian Midland Railway Co. : AIR1924All254 . It is the duty of the railway to place all material evidence to find out whether it acted in conformity with the relevant provisions of the Contract Act dealing with the duties of bailee, and in such a case, it is incumbent upon the plaintiff to make out that there was want of care or that there was negligence on the part of the railway authorities or their servants or agents. Pushraj Thanmul v. Union of India : AIR1960Cal458 . But it is, however, not the duty of the plaintiff to prove how the delay, loss, destruction, deterioration or damage was caused.;