A railway administration is not liable for loss, destruction or deterioration of goods carried at owner's risk rate unless the sender proves negligence or misconduct on the part of the railway administration or its servants.

S. P. MOHAPATRA, J.

( 1 ) THE plaintiffs, who were unsuccessful in both the courts below, have come with this second appeal against the confirming judgment of the lower appellate Court arising out of a suit for recovery of damages on account of the plaintiffs' having suffered damages of their articles consigned from Faruqabad to Bhadrak. The plaintiffs" version is that a consignment of 273 baskets of potatoes weighing nearly 307 maunds was despatched on 27-5-52 from Faruquabad situate in East Indian Railway at the time when the consignment was made, and the consignment reached Bhadrak the place of destination on 86-52 and the plaintiffs when taking delivery of the goods on 9-6-52 found that 100 baskets had suffered damages to the extent of 80 per cent, another 100 baskets to the extent of 40 per cent and the rest 73 baskets to the extent of 35 per cent. The plaintiffs therefore levied the claim at Rs. 2445/ -. The plaintiffs aver that the damages were on account of the delay and negligence on the part of the railway employees. The defence was that there was no negligence or delay in the transit of the goods; on the contrary the plaintiffs paid a lower rate and acknowledged that the transit was to be at the owner's risk; the damages were suffered in due course of transit even though there was no negligence on the part of the railway authorities and therefore the railway is not liable.

( 2 ) IT is to be noted at the outset that Section 74 of the Indian Railways Act has undergone changes by introducing several sections with the set purpose or settling various conflicts of decisions which were extsting prior to the introduction of legislation by the Central Legislature which took place in 1950. The relevant provision is 74-C which runs as follows:

"liability of a Railway Administration for animals or goods carried at owner's risk: (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 a special reduced rate (in this Act referred to as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the railway risk rate. (2) Where the 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 owner's risk rate, a 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 loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants. "

It is clear, on a plain reading of the section itself, that if it is established that the consignment was carried at owner's risk rate, the railway will not be liable for damages for any loss, destruction or deterioration except upon proof that such loss, destruction or deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants.

( 3 ) THE main thing to be seen in this case is whether it has been proved as a matter of fact that the consignment was carried at railway risk rate or at owner's risk rate. The defendant relies upon Ex. A, Railway receipt which was, it is to be noted, exhibited on admission. It runs as follows:

"forwarding note No. 63 -- Risk note Form O. R. R. The baskets insecurely packed; contents perishable. Liable to damage and rotten in transit. Wagon (c) selected by the sender. Loading and unloading at owner's risk. Rate owner's risk. "

The courts below have accepted form Ex. A, which was exhibited o