The railway administration is not liable for loss or damage to goods carried at owner's risk rate unless the sender proves negligence or misconduct on the part of the railway administration or any of its servants.

U.N.Sinha, J.

1. This appeal has been preferred by the defendant. The plaintiff had instituted a suit for recovery of Rs. 1,051/9/9 as compensation for the loss and destruction of certain goods during transit in the railway. The plaintiffs case was that on 9-4-1951, a consignment of 308 tins of Vansapati had been hooked from Rishra Mills Siding to be delivered to the plaintiffs at Giridih. When in due course the delivery of the tins was taken on 18-4-1951 at Giridih Railway Station, it was found that 51 out of 308 tins had been badly damaged and that the contents of the damaged tins were less than what they had originally contained. Each tin originally contained 19i seers of Vanaspati. At the time of taking of delivery the total contents of the 51 damaged tins weighed only 12 Mds, 9 seers and 8 chataks. Thus there was a shortage of 11 mds., 2 seers and 4 chataks.

A shortage certificate to this effect had been granted to the plaintiff at Giridih Railway Station at the time of taking of delivery. The plaintiff thereafter submitted a written claim demanding compensation to the extent of Rs. 1,051/9/9 as being the price, of Vanaspati lost in the transit. The plaintiffs claim having been refused, the present suit was instituted in due course.

2. The defendant contended that the consignment had not been packed according to the Tariff rules and that the loss was due to leakage as a result of improper packing and not due to negligence or misconduct on the part of the railway administration or its servants. It was also contended that the consignment was booked at owners risk rate and that the plaintiff was not entitled to any compensation. The defendant had also raised some other pleas but those contentions do not require any further consideration.

3. It was held by the learned Munsif who tried the suit that the loss suffered by the plaintiff was due to negligence of the Railway administration and its servants and that therefore, the plaintiff was entitled to recover compensation as claimed by him. The suit having been decreed fully, the defendant went up in appeal to the court of appeal below. The decree of the first court for recovery of Rs. 1,051/9/9 was affirmed. The decree of the learned Munsif was modified to the extent that interest pendente lite and future interest were refused to the plaintiff.

4. The learned Additional Subordinate Judge has held that the materials on record do not justify an inference of misconduct but those materials raise an inference of negligence on the part of the Railway Administration. The ultimate finding of the learned Additional Subordinate Judge has been arrived at upon the reasonings stated by him thus:

"It has been held in several cases that the loss or damage of the goods entrusted to a railway for transit is itself a prima facie evidence of negligence and the onus, therefore, lies on the railway administration as a bailee to disprove negligence.

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In other words, this principle is expressed by saying that loss or damage to the goods is prima facie proof of negligence. When evidence has been adduced on both sides, as in the present case, the question of onus is immaterial and the only thing which had to be decided is whether from the materials on record an inference of negligence on the part of the railway administration in dealing with the consignment in question can be drawn.

It is open in such a case to draw a presumption of negligence from the factum of loss or damage to the goods if there is no evidence to explain the circumstances under which the loss or damage was caused or if the explanation is unsatisfactory."

5. Mr. Bose, appearing for the appellant, has contended that the decision of the court of appeal below is mainly based upon interpretation of Section 72 of the Indian Railways Act. He has urged that the learned Judge has committed an error in that respect, inasmuch as the case is really governed by the provisions of Sections 74A and 74C of the Act. The c