- (1.)JUDGEMENT These are three appeals by the Union of India as the owner of the Northern Railway from the decree of the IInd Civil Judge of Meerut allowing in part the appeal of a consignor of goods from the decree of the Munsif of Ghaziabad dismissing his three suits for me recovery of damages, and awarding damages in all three suits. The suits were disposed of by a common judgment by both the courts below and are being similarly decided by a single judgment by me. The facts are these. The plaintiff-respondent Ram Richpal is the sole proprietor of a firm, Messrs Umarao Singh Ram Richpal. He booked three consignments of handloom cloth to the Northern Railway at Pilakhwa station to be delivered to an addressee at Raukshal station on the Northern Railway. The goods arrived in due course at Raukshal but no one turned up to take delivery of them. The three consignments had been despatched from Pilakhwa station on 8-2-52, 2-2-52 and 2-2-52 respectively. On being informed that no one had taken delivery of the goods the plaintiff, on 21-3-52, rebooked all the three consignments hack to Pilakhwa after filling the usual indemnity form in favour of the Railway.
The consignments reached Pilakhwa on 30th March, 1952, but when the plaintiff went to the station to take delivery he found all the bales in each, consignment drenched with water and damaged. Thereupon he demanded open delivery which was refused by the Station Master. The plaintiff took the matter to the higher authorities who undertook to grant him an open delivery. There was delay in delivering the goods and open delivery was made on 2nd July 1952. The Railway Other who was in charge of delivery assessed the damages (without prejudice to the rights of the Railway) as between 25 to 27 per cent. Thereupon the plaintiff claimed damages and ultimately filed three separate suits for their recovery after giving the usual notice under S. 80 of the C.P.C. These are suits No. 412 of 1963 claiming Rs. 2935/-, suit No. 413 of 1953 demanding Rs. 3619/11/6, and suit No. 414 of 1953 asking for Rs. 1877/- as compensation for loss due to the negligence and misconduct of the Railway and to the fluctuation of the market rate.

(2.)THE Railway resisted all the three suits and denied all liability. It took a number of pleas in defence but in this appeal only one has teen pressed - namely, that the plaintiff had failed to prove that the damage was caused by the misconduct or negligence of the Railway administration.
The learned Munsif held that the plaintiff failed to prove any misconduct or negligence on the part of the Railway administration and was therefore not entitled to claim any damages. He dismissed all the three suits. On appeal the learned Additional civil Judge held that as the goods were under the control of the Railway administration and the manner of their handling and disposal while in the custody of the Railway was a fact within its exclusive knowledge, it was under a duty to disclose this fact and it had not done so the plaintiff was entitled to ask the Court to infer that the facts. If disclosed, would have been unfavourable to the Railway. The learned Judge reversed the finding of the trial Court on the issue of the negligence or misconduct of the Railway and held that in the circumstances and on the facts the negligence of the Railway had been established by inference. He allowed all the three appeals in part and decreed the three suits for Rs. 1562/3/-, Rs. 1903/- and Rs. 947/- respectively. The Union of India has come to this Court in second Appeal in all the three cases.

(3.)LEARNED counsel for the appellant urged only one point in support of this appeal. He contended that the lower appellate Court had wrongly held that the Railway was under any obligation to disclose to the plaintiff how the consignments were dealt with during the time when these were in its possession or control. He pointed out that S. 74-D of the Railways Act which imposes this obligation of disclosure on the Railway applies only under two conditions namely, (1) where the whole of the consignments of goods or the whole of any package forming part of a consignment carried at owners risk is not delivered to the consignee, and (2) where in respect of any consignment of goods which had been so covered or protected that the covering of protection was not readily removable by hand. It is pointed out to the Railway administration at the time of delivery that any part of the consignment or package had been pilferred in transit. Learned counsel argued that neither of these two conditions existed in the present case as the three consignments had been delivered to the plaintiff and there had been no pilferage. That being so, learned counsel argued, the essential condition for the obligation of the Railway to disclose the manner of dealing with the consignment during the period of its custody was absent, and the learned appellate Judge had erred in relying on S. 74-D of the Railways Act in imposing this obligation on the Railway.