JUDGMENT - (1) This is a First Appeal by the original plaintiff Ramkrishna Ramnath shop, whose suit against the Union of India, represented by the Eastern Railway, Central Railway and the Southern Railway, for damages amounting to Rs. 15,047 in respect of damage said to have been caused to 54 bags out of the bags of tobacco delivered by the plaintiff to the Southern Railway at Nipani for carriage to Tumsar Road, was dismissed by the Additional District Judge, Bhandara. The learned Additional District Judge accepted the plaintiffs case that 54 bags of tobacco had been damaged, and according to him the value of damage was Rs. 13,808-6-6 only and not Rs. 15,047 as claimed in the plaint. But holding that the plaintiff has failed to prove either misconduct or negligence on the part of the railways, the learned Additional District Judge dismissed the suit. The plaintiff has now come up in appeal and challenges the finding of the Additional District Judge that the plaintiff has failed to prove either misconduct or negligence on the part of the railway. The learned counsel for the appellant accepts the finding of the trial Court that the damage was to the extent of Rs. 13,808-6-6 only.

(2) The admitted fact are that the plaintiff handed over 340 bags of tobacco at Nipani to the Southern Railway for being carried to Tumsar Road. It is also admitted that 54 bags out of these bags came in a very wet condition to Tumsar Road, and as a protest lodged by the consignee, the Railway Inspector inspected the goods and assessed the damage at 70 per cent and gave delivery without prejudice to the rights of the Railway Administration. The goods were despatched from Kolhapur railway station on the metre gauge railway and transhipped at Ghorpadi railway station to broad gauge wagons. When the plaintiff delivered the bags of tobacco he gave a forwarding note in which he accepted the risk as "owners risk", and on the forwarding note it is also noted that the tobacco was packed in single bags.

(3) The only point argued in appeal is whether the railways are responsible for the damage admittedly caused to 54 bags of tobacco. On behalf of the railway it is contended that both sections 74-A and 74-C of the Railways Act are applicable, the former section because the packing was defective, and the latter section because of the consignor had accepted "owners risk". It is therefore contended that the burden is on the plaintiff to prove either misconduct or negligence on the part of the railways. The learned counsel for the appellant however contends that section 74-A of the Railways Act does not apply because the damage in this case had not been caused by the defective packing (if any) of the goods, and that section 74-C of the act does not apply because there is no evidence to show that for the class of goods in question the railways provided two different rates and that the goods were carried at a specially reduced rate.

(4) Section 72 of the Railways Act provides that the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act. Sections 151, 152 and 151 of the Contract Act provide that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed, and that in the absence of any special contract, the bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151. Ordinarily therefore, when section 72 of the Railways Act applies, the responsibility of the railway is that of a bailee to show that it has taken as much care of the goods as a man of ordinary prudence would under similar circumstan

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