The railway administration is liable for the loss of goods carried at owner's risk rate if the plaintiff proves that the loss was due to negligence or misconduct on the part of the railway administration or its servants.

ORDER :- This is a plaintiffs application in revision against the judgment of the Small Cause Court Judge, Cuttack, dismissing the plaintiffs suit. Plaintiffs simple case was that he consigned 44 baskets of mangoes from Kantakapalli to Cuttack on 2-6-52 under the parcel way bill, Ex. I. In ordinary course, this consignment should have reached the destination the next day, that is, on 3-6-52; but on account of gross negligence and delay on the part 01 the Railway Administration, the parcel reached its destination on 5-6-1952 with the result that the contents were found to be rotten and unfit for human consumption.

The consignee, therefore, did not take delivery of the consignment, and hence the plaintiff filed the suit for recovery of a sum of Rs. 429/- after giving notice under S. 80, Civil P.C. to the defendant, that is, the General Manager of the Eastern Railway Administration. The defence of the defendant was that the notice under S. 80, Civil P.C., was not a proper and valid notice and, therefore, the plaintiffs suit is not maintainable, and that there was no delay or negligence or misconduct on the part of the Railway Administration.

2. But at the time of actual hearing in the Court below, the validity or otherwise of the notice was not challenged by the defendant, and it was not also very seriously disputed that there was some delay in the transit.

The learned Small Cause Court Judge after going through the evidence, both oral and documentary, has come to the finding that there was a delay of two days. Therefore, the only question argued by Mr. Sen, learned counsel on behalf of the petitioner, was whether there was any misconduct or negligence on the part of the Railway Administration due to this delay.

3. The legal position is that before 1949, under cl. (2) of S. 72, Railways Act, the onus was upon the Railway Administration to prove that there was a special contract, by or on behalf of the person sending or delivering to the Railway Administration the animals or goods, in a form approved by the Central Government. By the Amending Act (Act 56 of 1949), this cl. (2) of S. 72 was omitted and S. 74, A, E, C, D and E were enacted. Mr. Sen, for the purposes of his argument, relies upon S. 740(3) which runs as follows :

3. When any animals or goods are carried or are deemed to be carried at owners risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration or damage to such goods from any cause whatsoever except upon proof that such delay, loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants."

Therefore, if the case can come under the exception to cl. (3), then and then alone, the plaintiff can succeed. It was pointed out in argument that it is evident from Ex. I that the goods were consigned by a particular train (Train No. 187) at the owners risk but in evidence it transpired that the goods actually reached their destination by Train No. 25 down.

It was further submitted that train No. 187 is not a through train, and the goods had to be carried in another train from a railway junction at Khurda Road intervening in between Kantakapalli and Cuttack. Hence the fact that the goods did not reach their destination by the same train in which they were booked is not of much importance. Doubtless, the finding is that at any rate the goods did reach their destination two days later than it would ordinarily have arrived.

Mr. Sen relied upon a decision of the Patna High Court reported in Governor-General in Council v. Visheshwar Lal, AIR 1947 Pat 84 (A), where it has been held that the special contract has got to be proved by the Railway as a bailee under cl. (2) of S. 72, and now after the omission of cl. (2) from S. 72, Railways Act the onus is no longer on the Railway authorities. Therefore that case is of little assistance to Mr. Sen, however, relied on a case reported in Madar Sahib v. The Governor Ge