The railway administration is not liable for the damages caused to the plaintiff's goods due to delay in delivery, as the delay was not unreasonable and the goods were consigned at the owner's risk rate.

Judgement

G. C. DAS, J. :- This appeal by the plaintiff is directed against the judgment of the Subordinate Judge of Cuttack dated March 12, 1954, dismissing his suit, (M. S. No. 132 of 1952).

2. The plaintiff commenced the aforesaid suit for recovery of Rs. 5986-13-9 pies as damages from the Bengal Nagpur Railway and East Indian Railway Administration on the ground that certain damages to his goods consigned at Kanpur was caused by delay due to negligence and misconduct on the part of the Said railway administrations. Shortly stated, the facts are these : One Sankar Das Kailash Chandra consigned 187 bags of potatoes in a closed wagon from Kanpur Central Railway station under R/R No. 284444, invoice No. 5 dated April 26, 1951, for delivery to the plaintiff at Cuttack Railway Station.

According to the plaintiff this consignment was due to arrive at the destination within seven days but actually it arrived after a period of 11 days on account of the gross negligence and misconduct on the part of the defendants. As a result of this un-usual delay the contents had deteriorated, damaged and rendered unfit for human consumption. The consignment arrived at the Cuttack Railway Station on May 5, 1961 and was delivered to the plaintiff on May 6. The contents having been damaged the Station-master, Cuttack, gave a certificate to that effect (Ext. 1) on May 7, assessing the damages at 75 per cent. This assessment of course was without prejudice.

The plaintiff accordingly preferred a claim under Sec. 77 of the Indian Railways Act (Act IX of 1890) On June 16, 1951, and also served a notice under Sec. 80 of the Code of Civil Procedure, on November 10. The claim not having been settled, the plaintiff was constrained to file the present suit (M. S. No. 132/52) claiming only 75 per cent of the total damages in accordance with the damage certificate (Ext. 1).

3. Defendant 2, the East Indian Railway Administration, remained ex parte. Defendant 1, the Bengal Nagpur Railway Administration, however, contested the suit. The defence of the 1st defendant was that the consignment was not due at the destination station within seven days of the booking. There was in fact no delay and the alleged loss was not due to any such delay; but the loss, if any, was due to inherent vice common in the goods consigned, and the assessment of damage as per Ext. 1 was without prejudice and accordingly was not binding on the defendants. It was further contended that the claim has been grossly exaggerated and the plaintiff did not in fact suffer damage to the extent claimed by him. There having been no special contract to carry the goods within any specific time the plaintiff is not entitled to claim any damages. The consignment was booked at owners risk rate under loading and unloading condition by the consignor and the potatoes were a new crop with moisture likely to be rotten within seven days.

The consignment in wagon No. GIP 255455 was made over by the East Indian Railway at Gomo on 30-4-1951, passed Adra on 2-5-1951 and arrived at Kharagpur on the same day and was despatched on 4-5-1951 reaching Cuttack on 5-5-1951. Thus, the consignment had travelled a distance of 777 miles and there was no delay as a whole in spite of the fact that there was an accident at Kharagpur to train No. 193 to which this wagon was attached resulting in the derailment of all wheels of the brake van and the consignment was despatched on 4-5-1951 at the earliest possible convenience. Thus, there was no misconduct or negligence on the part of the defendants. One other defence taken was that the suit was barred by limitation, but it was not pressed before this Court.

4. The learned Subordinate Judge after a careful analysis of the evidence on record, both oral and documentary, came to the conclusion that the delay was for two days which was not unreasonable and the defendants are not guilty of any negligence or misconduct. Accordingly he dismissed the plaintiffs suit. It is against this judgment that