A suit for compensation for loss of goods booked through over the railways of two or more Railway Administrations can be brought either against the Railway Administration from which the consignment was booked or against the Railway Administration on whose railway the loss occurred, but the latter Railway Administration is only liable if the loss occurred within its railway.

Choudhary, J.

1. This is a defendants second appeal. It is directed against the judgment and the decree of the learned Additional Subordinate Judge, second court, Patna, reversing those of the Additional Munsif, third court Patna, who dismissed the suit of the plaintiffs for recovery of damages against the defendant-appellant.

2. The case of the plaintiffs, stated briefly, is as follows. The plaintiffs were consignees of 224 baskets of soft pears weighing 200 maunds which were booked in a full load wagon from Peshawar, a railway station in the then North Western Railway, to Patna Junction which was in the then East Indian Railway line. The consignment was booked on the 28-7-1946, and it reached Patna Junction on 18-8-1946, by which time the goods were completely decomposed and got rotten. At the time of delivery, the damage was assessed at 40 per cent. by the Station Master of Patna Junction. The loss is said to have been caused due to misconduct on the part of the Railway Administration. As appears from paragraph 7 of the plaint, the claim under Section 77, Railways Act, was sent only to the Chief Commercial Manager, East Indian Railway at Renares Cantonment. The suit was brought against the Governor-General of India in Council, Central Government (Railway Department). New Delhi. Reading the entire plaint it appears that the suit was instituted only against the East Indian Railway Administration, and this point has not been disputed by Counsel appearing for the plaintiffs-respondents.

3. The defendant contested the suit on various grounds, only two of which are relevant for the purpose of the present appeal. They are (1) that the Railway Administration was not guilty of any misconduct and (2) that the train carrying the goods was stabled at Kalu Station due to congestion of Lahore Yard.

4. The trial court accepted the contention of the defendant and dismissed the suit. On appeal by the plaintiffs, the lower appellate court reversed the findings of the trial court and held that the Railway Administration was guilty of misconduct. It, therefore, decreed the suit.

5. The learned Additional Subordinate Judge has based his finding, as regards the misconduct on the part of the Railway Administration, on three grounds, namely, (1) that it was improper on the part of the Railway Administration to have loaded perishable goods into the type of wagon in which they were sent, (2) that there was no evidence that the consignment was sent by fast goods express and (3) that there was delay in delivery of the consignment. . There appears to be no merit, in my opinion, in the first ground. According to the evidence of D.W. 2, there is a special type of wagon with windows for despatch of perishable goods, and from the evidence of D.W. 3 it appears that the wagon into which the fruits were loaded was of C type of B.A. Railway which had holes alt the top for ventilation. The learned Subordinate Judge has, therefore, held that the Railway Administration was at fault in loading the fruits into this type of wagon. But P.W. 2, who is said to have booked the consignment, has himself admitted that the railway authorities at Peshawar told him that the only wagon that, was available at that time was of the unventilated type and that he could book his goods in that wagon at his choice. Thus, P.W. 2 was himself responsible for having the fruits loaded in the particular type of wagon, and I do not see how the learned Subordinate Judge found fault with the Railway Administration when it clearly pointed out to the consignor that no ventilated type of wagon was available. The second ground, in my opinion, is equally without any merit. D.W. 3 has admitted that the wagon containing the consignment of perishable goods is carried by fast express. The wagon was admittedly sent onward from Moghulsarai by 214 Dn. which was a fast goods express. At Moghulsarai, however, the wagon was received by 212A Dn. and from Peshawar it had been sent by 18 Dn. There was n