The Railway Administrations are not liable for damage to goods carried at owner's risk unless the damage is caused by negligence or misconduct on the part of the Railway Administration or its servants.

S. BARMAN, J.

( 1 ) THIS is plaintiff's second appeal from a reversing decision of the learned Subordinate Judge, Balasore in Appeal No. 8 of 1956, whereby he set aside the decision of the learned Munsif and dismissed the plaintiff's suit against the Union of India, representing the appropriate Railway Administration mentioned in the plaint for alleged damages to a certain consignment of potatoes from Kanpur Central Station on the Northern Railway to Bhadrak Railway Station on the South Eastern Railway.

( 2 ) THE facts shortly stated are these: On 5-7-1953, 251 baskets of potatoes were consigned from Kanpur for delivery at Bhadrak. The consignment was carried by the defendant Railway from Kanpur to Bhadrak. On 19-7-1953 the goods were delivered at Bhadrak in rotten condition as alleged. On arrival of the wagon containing the said consignment it was found, as alleged to be emitting foul and obnoxious smell and some watery substance was coming out from the crevices of the doors. On opening the baskets the potatoes were found deformed, rotten and unfit for human consumption. The plaintiff took the consignment delivery which was granted by the A. D. C. I. (Assistant District Commercial Inspector) of Cuttack in the presence of the Station staff at Bhadrak. The percentage of damage as mentioned in the damage certificate is stated to be much less than the actual loss. On 10-8-1953 the plaintiff gave notice of his claim under Section 77 of the Railways Act. Upon the Chief Commercial Superintendent by his letter dated May 8/12 1954 repudiating the plaintiff's alleged claim, the plaintiff gave notice under Section 80 of the Civil Procedure Code to the appropriate authorities of the said two defendant Railway Administrations who, while having acknowledged the receipt of the said notices, did not however settle the plaintiff's alleged claim. Thereafter on 29-9-1954 the suit was filed by the plaintiff against the defendants for recovery of Rs. 3,659-10-0 as alleged damages. The defendants filed their written statement in which they took the defence that the suit was barred by limitation; there was no delay in delivery; and that the goods having been consigned at owner's risk the defendants were not liable for the alleged damage. The learned Munsif decreed the suit in part for a sum of Rs. 1,923-4-0 against both the defendants who were jointly and severally liable to pay the decretal dues. In appeal, the learned Subordinate Judge in reversal of the said decision, dismissed the plaintiff's suit. Hence, this second appeal.

( 3 ) MR. H. Sen, learned counsel for the plaintiff, contended that the Railway Administrations were negligent in having loaded the goods in a leaking wagon which was responsible for the damage caused to the goods. On this point the learned counsel relied on the Forwarding Note (Ext. A) which, according to him, showed that the goods were to be loaded in iron floor wagon at owner's risk to which effect there was an endorsement on the body of Ext. A. It appears, however, that there was another endorsement on Ext. A to the effect that the goods could be loaded in non-watertight wagon at owner's risk which was marked Ext. A-1. The plaintiff challenged the genuineness of the last mentioned endorsement in Ext. A-1. It was commented that the Ext. A-1 was a subsequent interpolation on the Forwarding Note while it was in the custody of the Railway Administration concerned. The insinuation was that this subsequent interpolation was made on the document in order to absolve the railway from liability for loading the goods in non-watertight wagons, because it was in evidence that the alleged damage to the consignment of potatoes was caused by the leakage of water in the wagon which carried the goods. It was contended on behalf of the plaintiff that unless there was anything mentioned to the contrary the wagon must be water-tight. In support of this contention the learned counsel relied on a decision of the Nagpur High Court in Domini