This second appeal has been filed by the plaintiff. Both the Courts below dismissed the suit of the plaintiff on the ground that in the forwarding note an endorsement was given that the packing of the consignment was not in conformity with the Rules and a such the Railway Authority can claim the benefit of section 77C of the Indian Railways Act (old). Reliance was placed by the plaintiff in two judgments - AIR 1974 Calcutta 207 (Union of India vs. Laduram Fakirchand) and AIR 1971 Bombay 52 (Union of India, owning South Eastern Railway, Administration, Calcutta vs. Ramprasad Mulchand Agarwal, wherein in AIR 1974 Calcutta 207 a Single Bench of the Calcutta High Court has held, inter alia, as follows:
"In my view, therefore, in order that the Railway Administration may be absolved of its liability under section 73, it is necessary that in the forwarding note not only there should be a recording about the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage."
2. This Calcutta decision was not accepted as a correct decision by a number of High Courts in our country. In AIR 1980 Kerala 90 (Babu Oil and Flour Mills vs. Union of India & others) wherein in paragraph 7, it has been categorically stated as follows:
"7. The object of section 77C and the rules framed in regard to package is to protect the Railway Administration in case where damage occurred for reasons connected with defective packing. Where damage is so caused, unless negligence or miscouduct on the part of Railway Administration is established, a claim for damages would be unsustainable. As the Railway receipts and the forwarding notes in the instant case contained the endorsement that the packing conditions had not been complied with, Railway Administration is not responsible in so far as the packing conditions applied, for any damage, deterioration, leakage or wastage except upon proof of negligence or misconduct on its part or on the part of its servants."3. In AIR 1971 Bombay 52 in para 10 it has been stated,inter alia,as follows:
"10. The learned Advocate for the appellant has also raised a point about the packing, It was urged by him that the consignment was not properly packed. But it is common ground that the defective packing was not mentioned in the forwarding note at all. The forwarding note was in the possession of the Railway Administration and the Railway Administration, has not produced the same. Under section 77C of the Indian Railway Act, the responsibility of a Railway Administration for damages of goods in defective condition or defectively packed condition is laid down. When any goods tendered to a Railway Administration are in a defective condition as a consequence of which they are liable to damage, the fact of such condition, or improper packing has to be recorded by the consignor or his agent in its forwarding note. Therefore, in the absence of any forwarding note or in the absence of any mention of defects or improper packing in the forwarding note, it will be the responsibility of the Railway Administration for damages. The Railway Administration therefore cannot in the absence of this proof say that the packing was not proper. This finding, however, will be of no help to the plaintiff, because I have held that the plaintiffs suit is not tenable because he has not established himself to be the owner of the consignment."
4. In AIR 1978 Delhi 227 (M/s Prabhu Dayal Laxmi Narain vs. Union of India) a decision of Division Bench did not accept the Calcutta High Court's view and stated that this is not the law and this cannot be the correct proposition of law and that was not accepted to be a correct decision. The same is the view as will be evident from the judgment reported in AIR 1979.Allahabad 294 (Union of India vs. Firm Chhitarmal Ram Dayal & another).
5. That being the position, I do not accept the Calcutta High Court's decision to be correct one and accordingly there is no merit in this second appeal and the same is dismissed.
6. I leave the parties to bear their own costs.
Comments