Shrivastava, J.

This is an appeal by the Union Government representing the Central and Western Railways against the judgment and decree of the 2nd Additional District Judge, Khandwa, dated 29-7-1958.

The suit leading to the decree was instituted by the respondent for recovery of damages to his consignment of tobacco leaves which was booked on 8-8-1965 from Kamoli to Burhanpur. When the consignment arrived at Burhanpur, it was found that out of 210 baga in the consignment, 105 bags were damaged by water. On separating the damaged tobacco, it was found that 22 maunds and 30 seers of tobacco was damaged to the extent of 80 per cent, and 23 maunds and 5 seers was damaged to the extent of 50 per cent. The damage was ascertained after four months as per Exh. D-3 on 30-12-1955 when the first lot had reduced in weight to 24 maunds and 1 seer and the second lot to 21 maunds and 36 seers on account of evaporation of moisture. The first lot had to be destroyed as worthless and the plaintiff took delivery of the second lot after paying excise duty and used it along with some good tobacco in manufacturing bidis.

The plaintiff claimed as damages the price of the tobacco as per invoices, railway freight, excise duty and profit at 30 per cent. He also claimed interest at 6 per cent, per annum. In addition, he claimed the price of 29 seers of tobacco for shortage in weight, value of empty bags, expenses incurred in assorting the tobacco and charges for giving notices.

The defendants pleaded that the consignment was booked at owner's risk and so the burden of proving misconduct on the part of Railways or their negligence lay on the plaintiff. They also pleaded that the tobacco was not properly packed. They denied that there was any negligence or misconduct on the part of the Railways. At any rate, the plaintiff was not entitled to profit, sorting expenses, interest and notice charges.

The trial Court found that the consignment was booked at railway risk and was not kept in water-tight wagon and that the damage to the consignment was due to the negligence of the railway servants. The Court allowed as damages the cost price of the tobacco, railway freight and excise duty paid. Profit at 10 per cent, was allowed as also interest and notice charges. The claim for shortage and charges for assorting the tobacco were also allowed. The claim was thus decreed for Rs. 10,029 only.

Before we consider the merits of the case set up by the parties, we may briefly refer to the responsibility of the Railway Administration as carriers in respect of goods entrusted for carriage. u/s 72 of the Indian Railways Act the responsibility of the Railway Administration is that of a bailee u/s 15L of the Indian Contract Act which means that they have to take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods. Section 74-C provides that the goods may be booked either at ordinary tariff rate, known as the "railway risk rate' or at specially reduced rate, known as the 'owner's risk rate'. In the case of goods booked at railway risk rate, the burden of proving proper care of the goods is on the Railway Administration; but in the case of goods booked at owner's risk, the Railway Administration cannot be held liable for damage except upon proof of the damage being due to negligence or misconduct on the part of the Railway Administration. Even when the goods are booked at railway risk rate, the Railway Administration is not liable u/s 74-A if the goods are in a defective condition or are defectively packed and the fact of such condition or packing is recorded in the forwarding note, unless the claimant proves that the damage was due to the negligence or misconduct on the part of the Railway Administration.

It is, therefore, necessary to find out whether the goods in the instant case were booked at owner's risk rate or at railway risk rate. As would appear from the forwarding note (Exh. D-1) and the Railway Receipt (