The burden of proof lies on the plaintiff to prove that the railway administration was negligent in the carriage of goods.

Mukherji, J.

1. This second appeal by the defendant is directed against the judgment and decree of the Additional District Judge, Jamshedpur, Singhbhum, setting aside the judgment and decree of the trial Court and decreeing the suit of the plaintiff-respondent claiming compensation of Rupees 8,679.26 P. on account of short delivery of consignment of groundnut oil which was booked from Kharsalia Railway Station to Tata Nagar.

2. Facts giving rise to this appeal are that a consignment of one tank wagon of 565 maunds 16 seers = 211 quintals of groundnut oil was booked from Kharsalia railway station on 7-3-1962. When the consignment reached the destination station at Tata Nagar, it was found that the tank wagon was leaking. Delivery was taken by depth measurement. After delivery the groundnut oil was weighed and it was noticed that 112 maunds 35 seers and 5 chhataks of the groundnut oil was missing. Hence the plaintiff who is the consignee of the goods filed the suit after the service of necessary notice.

3. The suit was resisted by the defendant representing several railway administrations on the ground that 565 maunds and odd of groundnut oil was not consigned in the tank wagon from the despatching station; that the consignment was loaded by the sender; that the wagon was leaking slightly; that there was no appreciable shortage in the quantity of oil delivered to the consignee and that there was no negligence or misconduct on the part of the railway administration in carrying the consignment from Kharsalia to Tata Nagar.

4. The suit was disposed of by the Subordinate Judge of Jamshedpur who held that the plaintiff had not been able to prove that 565 maunds and odd of groundnut oil was booked from Kharsalia and that the plaintiff had not also been able to prove that 112 maunds of oil had leaked out in transit. On these findings the learned Subordinate Judge dismissed the plaintiffs suit. There was an appeal against this judgment and decree of the learned Subordinate Judge which was disposed of by the Additional District Judge of Singhbhum who held that:

(i) There is sufficient documentary evidence to show that 211 quintals of oil had been booked from Kharsalia railway station.

(ii) Quantity of oil in the tank wagon at the time of the delivery was found by depth measurement to be 452 maunds and odd,

(iii) The story of leakage of oil during transit was accepted,

(iv) The railway administration was negligent and it was due to their negligence that the loss of 112 maunds of oil had occurred.

(v) The suit was not barred by limitation.

5. Mr. P.K. Bose, learned counsel appearing on behalf of the defendant-appellant has raised the following points in this appeal:-

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(1) The onus is on the plaintiff-respondent to establish the quantity of groundnut oil despatched in the wagon and the learned lower appellate Court was in error in placing reliance on the railway receipt, Bijak and forwarding notes for this purpose as there, is no evidence of the actual quantity loaded in the wagon. His contention is that there is no legal evidence to prove the actual quantity of the groundnut oil loaded at the starting station and as such the court below committed an error in determining the shortage at the time of delivery.

(2) The plaintiff-respondent has not been able to prove negligence or misconduct on the part of the railway administration in carrying the goods from the sending station to the destination station and, as such, he is not entitled to claim any compensation for the loss and damage in transit.

(3) The court below should have held that the suit is barred by limitation.

6. Point No. (1): In order to determine the actual quantity of shortage in the delivery of the groundnut oil, the plaintiff has to prove the quantity of groundnut oil loaded at the despatching station and also the quantity of oil received at the destination station. So far as the destination station is concerned, the plaintiffs case is that open delivery of goods was