RAMKRINA RAMNATH SHOP Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a First Appeal by the original plaintiff Ramkrishna Ramnath shop, whose suit against the Union of India, represented by the Eastern Railway, Central Railway and the Southern Railway, for damages amounting to Rs. 15,047 in respect of damage said to have been caused to 54 bags out of the bags of tobacco delivered by the plaintiff to the Southern Railway at Nipani for carriage to Tumsar Road, was dismissed by the Additional District Judge, Bhandara. The learned Additional District Judge accepted the plaintiff's case that 54 bags of tobacco had been damaged, and according to him the value of damage was Rs. 13,808-6-6 only and not Rs. 15,047 as claimed in the plaint. But holding that the plaintiff has failed to prove either misconduct or negligence on the part of the railways, the learned Additional District Judge dismissed the suit. The plaintiff has now come up in appeal and challenges the finding of the Additional District Judge that the plaintiff has failed to prove either misconduct or negligence on the part of the railway. The learned counsel for the appellant accepts the finding of the trial Court that the damage was to the extent of Rs. 13,808-6-6 only.

(2.) The admitted fact are that the plaintiff handed over 340 bags of tobacco at Nipani to the Southern Railway for being carried to Tumsar Road. It is also admitted that 54 bags out of these bags came in a very wet condition to Tumsar Road, and as a protest lodged by the consignee, the Railway Inspector inspected the goods and assessed the damage at 70 per cent and gave delivery without prejudice to the rights of the Railway Administration. The goods were despatched from Kolhapur railway station on the metre gauge railway and transhipped at Ghorpadi railway station to broad gauge wagons. When the plaintiff delivered the bags of tobacco he gave a forwarding note in which he accepted the risk as "owner's risk", and on the forwarding note it is also noted that the tobacco was packed in single bags.

(3.) The only point argued in appeal is whether the railways are responsible for the damage admittedly caused to 54 bags of tobacco. On behalf of the railway it is contended that both sections 74-A and 74-C of the Railways Act are applicable, the former section because the packing was defective, and the latter section because of the consignor had accepted "owner's risk". It is therefore contended that the burden is on the plaintiff to prove either misconduct or negligence on the part of the railways. The learned counsel for the appellant however contends that section 74-A of the Railways Act does not apply because the damage in this case had not been caused by the defective packing (if any) of the goods, and that section 74-C of the act does not apply because there is no evidence to show that for the class of goods in question the railways provided two different rates and that the goods were carried at a specially reduced rate.