Under Section 77-C of the Railways Act, the burden of proving negligence or misconduct lies on the consignor in cases where the defective condition of the goods was noted in the forwarding note, and the Railways are not liable in the absence of such proof.

( 1 ) THESE three petitions for revision (Civil Revisions Nos. 99. 138 and 139 of 1967)under Section 25 of the Small Cause Courts Act are against the decree passed by the Additional District Judge, Rajnandgaon. They were first heard by one of us (Shrivastava J.); but as there was some difference of opinion between the different Judges of this Court on the interpretation of Section 77-C of the Indian railways Act, (hereinafter referred to as "the Railways Act"), he made recommendation under Rule 9, Chapter 1 of the High Court Rules for placing the cases before a larger Bench and that is how the matter has come before us.

( 2 ) THE following facts are no longer in dispute in all the three cases: (i) the plaintiffs had booked at railway risk a consignment of groundnut oil from Kurnool to Rajnandgaon; (ii) the oil was contained in old used tins with dents and the tins were defectively packed. (iii) the condition of defective packing was noted in the forwarding note; (iv) the oil leaked in transit and the leakage was from the joint in the tins, which were not properly soldered; (v) the quantity delivered to the consignors was less than the quantity booked. The findings of the Court below as regards the quantity lost and its price are accepted by the parties before us; and (vi) on way the consignments were transhipped from metre-gauge wagons to broad-guage wagons at Secunderabad. ( 3 ) THE contention of the plaintiffs was that the loss to the consignments was due to the misconduct or negligence of the railway administration. The defence was that the loss was due to defective packing and the Railways were exonerated from any liability under Section 77-C of the Railways Act. The trial Court dismissed the suits accepting the contention that Section 77-C fully protected the Railways,

( 4 ) SHRI J. V. Jakatdar for the applicants contends that in spite of the defective condition being noted in the forwarding note and in spite of the fact that the burden of proving misconduct or negligence lay on the consignors under Section 77-C, it was necessary for the Railways to establish how the consignment was dealt with and to lead evidence to show that they were not negligent. The learned counsel contends that as the facts were within the special knowledge of the railways, Section 106 read with Section 114 of the Indian Evidence Act made it incumbent for the Railways to prove how the loss occurred and it was not for the consignors to adduce any evidence. Shri M. L. Mukherjee for the Railways, on the other hand, contends that the Railways need not have made any disclosure about the manner in which the consignment was dealt with, without a demand from the consignors and they need not have given any evidence on that point He concedes that the Railways would be bound and would have placed any relevant material before the Court, if the on signors had made a demand for it; but as this was not done, the burden placed on the consignors by Section 77-C has not been discharged and the suits could not succeed.

( 5 ) THE question which arises for determination on these contentions is whether in the absence of any evidence by the parties as to the cause of the loss, the claim should have been decreed or are the Railways protected under Section 77-C of the railways Act?

( 6 ) EXTENSIVE amendments have been made in the Railways Act by Act 39 of 1961 and it would be helpful to refer to some of the important changes which are relevant to the question before us. Section 72 of the Act, before the amendment, defined the liability of a Railway as that of a bailee under the Indian Contract Act. This matter is now provided in Section 73 of the Act. The responsibility of the railways has been considerably increased making them liable more or less as insurer of the goods. It appears that the Railways cannot now contract out of this liability by special contracts as in the earlier risk-notes under the repealed Section 72 (2 ). As in the unamended Act, Section