AMIYA KUMAR MOOKERJI, J.

( 1 ) THIS appeal is by the defendant. Union of India. It is directed against a decree for Rs. 12170/- passed against it for non-delivery in respect of 3 consignments of Ghee, booked from Veraval, a Railway Station on the Western Railway, for carriage to Howrah on the Eastern Railway.

( 2 ) THE facts which are not disputed may be stated as follows:-- In the year 1951, on different dates 4 consignments of Ghee were booked by the plaintiff from Veraval for carriage to Howrah via Agra East Bank. On 15th June, 1951, 121 cases of Ghee were booked. 5 cases were found missing at the destination, remaining 116 cases were delivered to the plaintiff. Booked on the same date, in second consignment, 109 tins of Ghee were sent. In respect of which shortage of 20 mds. 35 srs. was detected at Howrah Station. In third consignment, booked on 6-7-1951 containing 138 tins of Ghee, 15 mds. 39 srs. were found short. The fourth consignment was booked on 1st August, 1951 consisting of 110 tins. In that consignment shortage was detected of 17 mds. 6 srs. Short certificates were issued by the railway administration with respect to all the above four consignments.

( 3 ) THE plaintiff consignor claimed a total damage of Rs. 14204. 56 for nondelivery of 5 cases regarding first consignment and short delivery with respect to remaining 3 consignments.

( 4 ) THE defence was that the consignments were not properly and securely packed according to rules. The goods were booked on owner's risk for defective packing and at owner's risk rate. The shortage was due to negligence on the part of the sender in not packing the goods as required under the tariff rules and the defendant was not, therefore, liable to pay compensation as claimed.

( 5 ) THE plaintiff's suit was decreed in part of Rs. 13,350/- by the Trial Court. The defendant, the Union of India took an appeal (F. A. 225 of 1954) to this Court. This Court confirmed the decree passed by the trial Court to the extent of Rs. 1180/- only with respect to 5 cases of Ghee tendered in the first consignment which were not delivered at all. Regarding other three consignments, this Court set aside the decree passed by the Trial Judge and remanded the case for rehearing on the ground that the learned Subordinate Judge was basically wrong because he proceeded on the basis that no rules for packing of Ghee were prescribed by the Central Government, whereas such rules had actually been framed. On remand, the suit was reheard by the learned Subordinate Judge, who again passed the decree in favour of the plaintiff with respect to aforesaid three consignments. Against the said judgment and decree, the defendant, Union of India preferred the present appeal.

( 6 ) BY Act 56 of 1949, Sections 74-A to 74-E were inserted in the Indian Railways Act, 1890 (hereinafter referred to as the Act ). The said sections were deleted by the Amendment Act 39 of 1961. It is a common case of the parties that having regard to the date of booking, the present case has to be decided in accordance with the provisions contained in the Act after its amendment by Act 56 of 1949 and before the said sections were deleted by 1961 amendment.

( 7 ) UNDER Section 72 of the Act, the responsibility as it stood before 1961 amendment, of the Railway administration for the loss, destruction or deterioration of animals and goods delivered to the administration to be carried by railways, subject to other provisions of the Act, is that of a bailee under Ss. 151, 152 and 161 of the Contract Act. This general provision relating to the responsibility of the railway is qualified in two cases to which Sections 74-A and 74-C of the Act are applicable. Section 74-A says that when any goods are tendered to the railway administration in defective condition or defectively packed or packed in a manner not in accordance with the rules and the fact of such condition of defective or improper packing has been recorded by the sender or his agent in t

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