The Railway is not liable for any shortage in a consignment of goods or package that has been so covered or protected that the covering or protection was not readily removable by hand, unless negligence or misconduct on the part of the Railway administration or any of its servants can be fairly inferred from the disclosure of how the consignment or package was dealt with throughout the time it was in the Railway's possession or control.

S. BARMAN, J.

( 1 ) DEFENDANT No. 1 Union of India as owner of South Eastern Railway is the appellant. The suit out of which this appeal arises was filed by the plaintiff against the Railway and also against the consignor defendant 2, Calcutta Cycle Supply Co. of certain goods from Calcutta for a decree for Rs. 2198. 10 np. for alleged short delivery. The plaintiffs case is that on April 12, 1953 seven cases of Cycta parts were booked from Shalimar for delivery at Cuttack. The Railway receipt Ext A described the goods as: "seven cases said to contain cycle parts. " when the goods were unloaded, one out of the seven cases was found broken; the remaining six were sound cases intact with no defect. It was discovered at the time of unloading that the broken case contained cycle parts and there was practically no shortage. In the sound cases, some foreign materials like bricks intermingled with cycle parts were found. This will appear from the unloading register Ext B. The plaintiff filed the suit on the ground of alleged short delivery. In defence the railway repudiated the plaintiff's claim stating that there was no shortage in the broken case and the alleged shortage was in respect of the six cases found intact with no defect, and accordingly the railway is not liable. The defence of defendant No. 2 Calcutta Cycle Supply Co. is to the effect that it packed the goods all right and there was no fraud or misconduct on its part as alleged.

( 2 ) THE trial Court decreed the plaintiff's claim in full against the Railway and dismissed the suit against the consignor defendant. In appeal the learned lower appellate Court upheld the decision of the trial Court. Hence this second appeal.

( 3 ) SECTION 74-D (b) of the Railways Act is this:

"notwithstanding anything contained in Section 74-C,--xxxxx (b) Where in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor. "

In the present case the unloading register shows that out of seven cases, six cases reached the destination intact with no defect. None of these cases were pilfered in transit. With regard to these six cases, the Railway has no responsibility to disclose how they were dealt with throughout the time they were in railway's possession or control. None of these six packages appeared to have been tampered with. It is quite clear from Section 74-D (b) that when a consignment consists of cases or packages, as in the present case, it must be so covered or protected that the covering or protection is not readily removable by hand. Each case or package is an independent unit of consignment. So long as the cases are intact, the Railway is not in any way responsible for any shortage. It is well settled that where goods are booked by the consignor and the information given by the consignor is accepted as correct for purposes of charging freight, and receipt is made out in the same way as in this case "seven cases said to contain cycle parts", there is no admission on the part of the Railway authorities that the cases contained the contents as described in the receipt (cycle parts in the, present case) and if at the destination the cases are found to contain less number or quantity than what was mentioned in the receipt, the Railway administration is not liable: Dominion of India v. Firm Museram Kishunprasad, AIR 1950 Nag 85, followed in Union of In