Judgment

BACHAWAT, J.: On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to the Southern Railway at Pudukad for carriage to Shalimar on the Bengal Nagpur Railway at the owner s risk rate. Of the 10 bales consigned, only 5 bales were delivered to the respondent. The respondent filed Suit No. 7 of 1952 against the Union of India representing the two railway administrations claiming damages for non-delivery of 5 bales. On March 28, 1951 the respondent consigned 10 bales of staple fibre yarn to Podnur on the Southern Railway for carriage to Shalimar on the Bengal Nagpur Railway at the owner s risk rate. Of the 10 bales consigned, only 1 bale was delivered to the respondent. The respondent filed suit No. 6 of 1952 against the Union of India, representing the two railway administrations claiming non-delivery of 9 bales. The two courts concurrently held that the loss was due to negligence or misconduct of the servants of the Bengal Nagpur Railway administration. The Trial Court held that the notices under Section 77 of the Indian Railways Act, 1890 and Section 80 of the Code of Civil Procedure were not duly served and dismissed the suits. The plaintiff filed two appeals. Before the High Court the Union of India conceded that the notices were duly served on the General Manager, Southern Railway and the plaintiff elected to ask for a decree against the Southern Railway only. The High Court held that the Southern Railway to which the goods were delivered by the consignor was liable to pay compensation for the loss, though the loss was due to the negligence or misconduct of the Bengal Nagpur Railway. The High Court allowed the appeals and decreed the suits. The present appeals have been filed on certificates granted by the High Court.

2. Two questions have been canvassed in these appeals. Firstly, it is argued that the misconduct or negligence of the servants of the Bengal Nagpur Railway administration cannot fairly be inferred from the materials on the record. Secondly, it is argued that the Southern Railway administration cannot be held responsible for the misconduct or negligence of the servants of the Bengal Nagpur Railway administration.

3. The case is governed by the Indian Railways Act, as it stood in 1951. The goods were carried at owner s ask rate, and Sections 74 C (3) and 74 D of the Act were attracted. Section 74 C (3) provides that in such a case the Railway Administration was not responsible for any loss, destruction, deterioration or damage to the goods from any cause whatsoever "except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the Railway Administration or any of its servant." As the explanation of the loss is within the exclusive knowledge of the railway administration it is almost impossible for the consignor to discharge this burden of proof. Section 74 D lightens this burden and imposes upon the administration in some cases the duty of disclosing to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control. If the negligence or misconduct can fairly be inferred upon such disclosure the burden of proof under Section 74 C (3) is discharged. Section 74 D is as follows:

"Notwithstanding anything contained in Section74 C -

(a) where the whole of a consignment of goods or the whole of any package forming part of a consignment carried at owner s risk rate is not delivered to the consignee and such non-delivery is not proved by the railway administration to have been due to any accident to the train or to fire, or

(b) where, in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilferred in transit,

the railway administration shall be bound to di