The railway administration is not liable for loss or damage to goods carried at owner's risk rate unless negligence or misconduct is proved.

Dutta, J.

1. This appeal arises put of a suit for recovery of compensation on account of shortage in delivery out of a consignment of 696 tins of cocoanut oil, which were booked from Trichur station of the Southern Railway to Sahebganj station of the Eastern Railway on 30-3-6C under Railway Receipt No. 470341 Invoice No. 13. The consignment reached Sahebganj Railway station on 22-4-60 and thereafter, open delivery was taken by the plaintiffs in whose favour the railway Receipt had been transferred. 289 tins of cocoanut oil were found to have become dented and leaky and out of these. 71 tins were found to be completely empty and the remaining 218 tins were partly empty and this had resulted in a shortage of 42 maunds 2 seers of cocoanut oil and aforesaid 289 tins were further alleged to have become completely unserviceable. The shortage, according to the plaintiff was caused by the negligence and misconduct on the part of the Southern Railway, South Eastern Railway and Eastern Railway and their servants. The plaintiff claimed to have duly issued notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure to the General Managers of the aforesaid Railways, but they failed to satisfy the plaintiffs claim. On these allegations, the plaintiff brought the suit out of which this appeal arises, claiming a sum of Rs. 3805/8/, on account of the value of 42 maunds 2 seers of cocoa-nut oil and a further sum of Rs. 433/8/- on account of the price of 289 tins besides some other amounts, the total claim being for Rs. 4700.

2. A written statement was filed in the suit by the Union of India as owner of the Eastern Railway and, subsequently, the same written statement was adopted by the Union of India as owner of the Southern Railway and South Eastern Railway also. The defendant challenged the plaintiffs allegation about the aforesaid loss being due to negligence or misconduct on the part of the Railway Administration concerned or their servants. The damage caused to the tins and the resulting shortage due to leakage therefrom were ascribed as being solely due to the failure of the consignors in packing the tins properly in cases or crates in accordance with the Tariff Rules and also due to their failure to provide sufficient dunnage in between the tins in consequence of which these could not stand the strain due to normal oscillation of the train in course of the long journey of over 1000 miles. The defendant further alleged that the consignments had been booked at the risk of the consignor and after booking the tins were loaded in Wagon No. 49588 of Northern Railway in presence of the senders agent at Trichur and after loading the wagon was properly sealed and rivetted in his presence and subsequently the wagon reached Sahebganj with both sides original seals and rivets intact. The fact that on opening the wagon at Sahebganj in presence of the plaintiffs agent. 71 tins were found to be entirely empty and 218 tins partly empty resulting in the total shortage of 42 maunds 2 seers of cocoanut oil was admitted. The defendant further denied the legality and validity of the service of notices under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure and the claim as made by the plaintiff was further alleged to be highly inflated and exaggerated. Pleas of limitation as well as non-maintainability of the suit as framed was also taken.

3. The issues regarding limitation and invalidity of the service of notices under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure and non-maintainability of the suit were decided against the defendant and the correctness of these findings was not challenged in the present appeal. The trial court further held that there was failure on the part of the Railway servants to affix the label not to be loose shunted on the wagon in which the consignment was carried and the damage to the tins of cocoanut oil, which had resulted in