The non-use of the E.P. lock in spite of the strong circular issued by the railway administration amounted at least to negligence.

Ahmad, J.

1. This is an application in revision under Sec.25 of the Provincial Small Cause Courts Act by the plaintiff against the judgment and decree passed in a small cause court suit dismissing his claim for damages for the non-delivery of 41 tins of Dalda consigned from Wadi Bandar to Arrah.

2. It appears that the consignor on 29th January, 1952, delivered to the railway authorities at Wadi Bandar on the G.I.P. Railway a consignment of Dalda packed in tins comprising 2785 of 10 Lbs each and 600 of 21 Lbs, each under R/R 656/47 for transit to Arrah on the E.I. Railway.

The consignment was carried in wagon No. 3935 and it reached Arrah on 9th February, 1952, at about 8.35 P.M. by 276 Down Goods train. At Arrah the consignment was found short of 41 tins of Dalda of 10 lbs each. Hence the suit for the recovery of Rs. 462-8-6 as the price of those 41 tins of Dalda and Rs. 23-8-6 on account of loss of profit at the rate of 5 per cent on the above amount and Rs. 12-8-0 on account of the cost of notices sent for the realisation of the aforesaid claim; thus for total sum of Rs. 498-9-0.

3. The Small cause court Judge found that the account of damages as given by the plaintiff in the plaint was correct and this finding given by the trial court has not been challenged now in revision. The only point of controversy raised in this revision is as to whether the loss incurred by the plaintiff is due to the negligence or misconduct on the part of the railway administration and its servants and as to whether the defendant is liable in law for the same.

4. It is the admitted case of the parties that the consignment was booked on a special reduced rate basis or what is known as owners risk rate as now provided under Section 74C of the Indian Railways Act, which for all practical purposes is to the same terms as the previous amended risk note B which was put in force since the year 1924. According to the defendant, the shortage was caused by a running train theft between Behia and Arrah under circumstances beyond the control of the railway administration and its servants and that as such the defendant was not liable for the loss.

5. Section 74C reads as follows:-

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(1) When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate), or in the alternative at special reduced rate (in this Act referred to as the owners risk rate), the animals or goods shall be deemed to have been tendered to be carried at owners risk rate, unless the sender or his agent elects in writing to pay the railway risk rate.

(2) Where a sender or his agent elects in writing to pay the railway risk rate under Sub-section (1), the railway administration shall issue a certificate to the consignor to that effect.

(3) When any animals or goods are carried or are deemed to be carried at owners risk rate, B railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such delay, loss destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants".

6. The next section following it, namely 74D, is in fact a rider to it and that says:-

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"Notwithstanding- anything contained in Section 74-0 -- (a) where the whole of a consignment of goods or the whole of any package forming part of a consignment carried at owners 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 the 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