JUDGMENT S.N. Srivastava, J.
1. By means of the present second appeal, the appellant has assailed the judgment and decree dated 12.4.1973 rendered by Lower Appellate Court in Civil Appeal No. 98 of 1974 whereby the judgment and decree aforestated passed in O.S. No. 10 of 1971 M/S Hari Shanker Gauri Shanker v. Union of India was affirmed.
2. It would appear that the plaintiff respondent instituted O.S. No. 10 of 1971 with the allegations that a consignment consisting of 316 boxes containing tin sheets was booked with the Railways at Tatanagar Tin Plate Siding for onward transmission and delivery to M/S Associated Industrial Corporation at Kanpur Fazalganj Goods Shed vide R.R. No. 238057 dated 9.7.1969. The goods according to the record was taken delivery of by M/S Associated Industrial Corporation at Kanpur Fazalganj Goods Shed on 22.7.1969 alongwith a certificate of damage issued by Railway Administration at Kanpur after it was noticed that some of the boxes of tin plates had become wet and rusted and as a sequel thereto, the plaintiff suffered loss to the extent of Rs. 6946/-. From a perusal of written statement, it would appear that defendants repudiated the plaint allegations and averred that the goods were loaded by Tata Tin Plate Company without any supervision of Railway Administration. It was further averred that the wagons in which goods were loaded, were watertight wagons and in case, the wagons developed some fault in transit as a result of which damage was caused to the goods, the defendants could not be held liable to damages. Other allied pleas were also pressed into service in extenuation of the claims of plaintiff for damages.
3. At the time of admission, it would appear from a perusal of order-dated 4.4.77, the Court was pleased to admit the appeal prima facie considering ground Nos. 7 and 9 as raising substantial questions for determination. The grounds aforestated may be quoted below.
"7. Because the plaintiff respondent being merely an endorsee of the goods was not entitled to sue.
8. Because the present case was governed by Section 73(f), (g) and (h) of the Railways Act and the plaintiff respondent was not entitled to any damage."
4. Heard learned counsel for the parties.
5. Submerging all the others arguments, the learned counsel for the petitioner pressed into service the only argument across the bar that the goods were not loaded at Tatanagar Tin Plate Siding under the supervision of Railway Administration and they were loaded by Tata Tin Plate Company itself and by this reckoning, proceeds the argument, the Railway Administration could not be made liable to damages occasioned to the plaintiff.
6. In connection with the above proposition, I propose the scan the finding of the trial court as well as the appellate court. The trial court framed as many as 9 issues. Issue No. 7 framed by the trial court, posed whether the plaintiff suffered damages on account of negligence and misconduct of the defendant and its employees. No doubt, the trial court held the view in answering issue No. 5 that it was plaintiff's company which had loaded the goods and affixed its seal to the water-tight wagon but in dealing with issue No. 7, the trial court referring to Section 73 of the Indian Railways Act, converged to the view that it is for the Railway administration to prove that the damage to the goods occurred on account of anyone of the reasons mentioned in Section 73 of the Indian Railways Act. Section 73 before its amendment by Act 39 of 1961 envisaged the responsibility of the Railway Administration as carrier of animals and goods. It further envisaged that Railway Administration shall be responsible for loss, destruction, damage or non-delivery in transit of animals or goods delivered to the administration to be carried by Railway arising from any cause except the acts enumerated in the Section i.e. (A) Act of God; (B) Act of War; (C) Act of public enemies; (D) Arrest, restraint or seizure under the legal process; (E) Orders or restrictions imposed by the Central Government or State Government or by any officer or authority subordinate to the Central Government or State Government authorised in this behalf; (F) Act or omission or negligence of the consignor or the consignee or the agent or servants of the consigner or the consignee; (G) Natural deterioration or wastage in bulk or weight about inherent defects, quality or voices of the goods; (H) Latest defects; (I) Fire, explosion or any unforeseen risk. In the proviso, it is envisaged that even where such loss, destruction, damage, deterioration or non delivery as proved to have f arisen from anyone or more of the aforesaid causes, the Railway administration shall not be relieved of its responsibility for the loss, destruction, damage deterioration or non delivery unless the administration further establishes that it has used reasonable foresight and care in the carriage of the animals or goods. After amendment by Act No. 39, this section prescribed that the responsibility of Railway Administration for the loss, destruction or deterioration of animals or goods delivered to the Administration to be earned by Railway was, subject to the other provisions of the Act, be that of a bailee under Section 151, 152 and 161 of the Indian Contract Act, 1872. The trial court on a comparative examination of the two sections held the view that Old Section 73 envisaged Railways responsible only in the capacity of a bailee while the amendment made in the year 1961 has made Railway responsible for the loss, destruction, damage, deterioration or non delivery in transmit of animals or goods except in the cases provided by the Act and on this reckoning, the trial court converged to the conclusion that the onus fell on Railway to prove that the damage or loss occurred on account of one of the conditions specified in Section 73 of the Act. While dealing with the arguments that damage to the goods occurred on account of negligence of the consignor due to defective packing, the trial court held that the defendant has failed to prove that the boxes were defectively packed and in this connection, it referred to Railway Receipt and forwarding note which contained note that packing conditions had been complied with. The trial court also referred to statement of D.W.1 Sri S.N. Bhattacharya in which it was conceded that besides the T.X.R two clerks had been posted at the siding and one of the functions of them was to supervise weight of the load end thereafter, a note is appended to the forwarding receipt. The trial court also alluded to certificate of damage and shortage a perusal of which indicated that the goods were damaged on account of rain water which trickled into the wagon and damaged the goods. In the ultimate analysis, the trial court held that the defendant had failed to prove that there was defective packing or that, the goods were damaged due to fault of the consignor. The findings recorded by the trial court do not Suffer from any infirmity and therefore, the contentions of the learned counsel for the appellant do not commend to me for acceptance.
7. In so far as next contention of the learned counsel for the defendant that having assigned water-tight wagon, the Railway administration was absolved of the liability to damages if any occurred to the goods. To rephrase, it has been contended that if the water-tight wagon developed some flaw in transit, the Railway Administration cannot be fastened with the liability to damages. In connection with this contention, the learned counsel referred to paragraph 15 of the written statement filed by the Railways in the trail court.
"15. The goods were loaded by Tata Tin Plate Company without any supervision of Railway Administration as such said R.R. issued. Wagon No. WR 37993 in which said goods were loaded by the aforesaid company was admittedly a water tight wagon and by supplying a water tight compartment the Railway Administration discharged its duty faithfully and could not be held liable for goods being founded rusted at the destination as they could have already been rusted at the time of dispatch or may have got rusted on account of the fact that when goods were booked it was rainy season and atmosphere was surcharged with moisture. In fact, even if wagon which was water tight before dispatch became non-water tight on the way- the defendant could not be held liable for any negligence or misconduct."
8. Precisely, the learned counsel by referring to the above paragraph tried to go into finer points, which in my opinion, are unable to turn the scale against the plaintiff. I would confine myself to saying that the trial court has extensively dealt with the above aspects and having noticed that there were Railway employees at the siding to supervise weight and loading etc. by referring to the statement of D.W. 1, and also the Railway Receipt and Forwarding note issued by the Railways, it now does not lie in the mouth to say that if any damage has been occasioned to the goods in transit or water-tight wagon stuck loose on way the Railway Administration could not be held liable to damages. The evidence appraised by both the courts below leave no manner of doubt that the goods were dispatched at the Railway's risk and Railway was rightly held liable to damages.
9. As stated supra, it would transpire from the order of the Court dated 4.4.77 that the Court was inclined to admit the appeal pursuant to grounds 7 and 9 which according to the order prima facie disclosed substantial questions of law required to be decided. Section 73(f) envisages act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignees. Sub-section (g) envisages natural deterioration or wastage in bulk or weight due to inherent defect, quality of vice of the goods. From the discussion aforestated, any act or omission or negligence of the consignor or the consignee has been ruled out on valid grounds. The damage caused to the goods can also not be said stemming from natural deterioration or wastage or due to inherent defect, quality or vice of the goods in view of specific finding of the courts that certificate of damage issued by the Railway Administration at Kanpur clearly indicated that damage was caused due to percolation of rain water into the wagon. It clearly implies that the wagons assigned were defective and hence, the Railways cannot be absolved of its responsibility. Section 77 of the Railways Act being germane to the controversy involved in the present appeal may also be excerpted below.
"Section 77. Responsibility of a railway administration after termination of transit.- (1) A railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway within a period of seven days after the termination of transit;
Provided that where the goods are carried at owner's risk rate, the railway administration shall not be responsible for such loss, destruction, damage, deterioration or non delivery except on proof of negligence or misconduct on the part of the railway administration or of any of its servants.
(2) The railway administration shall not be responsible in any case for the loss, destruction, damage, deterioration or nondelivery of goods, carried by railway, arising after the expiry of the period of seven days after the termination of transit.
(3) Notwithstanding anything contained in the foregoing provisions of this section, a railway administration shall not be responsible for the loss, destruction damage, deterioration or non delivery of the goods mentioned in the Second Schedule, animals and explosives and other dangerous goods carried by railway, after the termination of transit.
(4) Nothing in the foregoing provisions of this section shall relieve the owner of animals or goods from liability to any demurrage or wharfage for so long as the animals or goods are not unloaded from the railway wagons or removed from the railway premises..................."
10. A conjoint reading of Sections 73 and 77 of the Act would be eloquent of the fact that the railway administration as bailee under Sections 151, 152 and 162 of the Indian Contract Act, 1872 cannot wash his hands off the responsibility for the loss, destruction or deterioration or non-delivery of the goods carried by the railway. No doubt, responsibility of Railway Administration has been limited to seven days but here in the instant case, there is no dispute that the consignee had taken delivery of goods within the period prescribed and it is only after the expiry of the period prescribed that the responsibility of railway administration comes to an end. The goods loaded by the plaintiff were of the kind, which could well be said to be ones for which Section 77 clearly postulates responsibility of the railway administration. A clear finding has been recorded by the two courts below taking into reckoning the statement of D.W.1 namely, S.S. Bhattachary that there are two clerks of the Railway in the siding of Tin Plate Company of India besides a T.X.R. and a siding clerk to supervise loading and unloading of goods. Besides, it is also worthy of notice that a Railway receipt issued to the consignor bears ample testimony to the fact that the loading of goods had been supervised by the Railways. Relevant section envisages that a railway receipt shall be prima facie evidence of the weight and the number of packages stated therein. It is further envisaged that Railway administration shall issue a railway receipt in a case where the goods are to be loaded by a person entrusting such goods on the completion of such loading and/or in any other case, on the acceptance of the goods by it or else a statement to that effect that the consignment in wagon load or train load and the weight or the number of packages has not been checked by a Railway servant authorised in this behalf would have found mention in such railway receipt. It, therefore, furnishes enough evidence to demolish the contention of the learned counsel for the appellant that the loading of goods was not supervised by the Railways. In view of the above, ground No. 9 which was at the time of admission of appeal was considered to be one of the questions requiring determination is accordingly answered and it is held that there was no act or omission or negligence on the part of consignor or the agent or servant of the consignor nor was there any natural deterioration or wastage due to inherent defect, quality of vice of the goods etc. and the Railway administration was responsible for the damage caused to the goods of the plaintiff.
11. In so far as ground No. 7 enumerated in the memo of appeal is concerned, it is settled position in law as enunciated by various decision that the consignor of goods has right to sue for loss or damage of goods and in this connection I would not like to burden this judgment with copious citations on the aspect. In connection with this argument, I would sketch few reasons. The reason is that the contract of carriage is between the consignor and the railway administration. The consignees can maintain the suit only if they proved their title to the goods in transit. Where the consignor and consignee are different, the consignees are not necessarily the owners of the goods. In the instant case, the plaintiff is a consignor of goods having a Railway Receipt in his hand. It is admitted position that the consignment was booked at Tatanagar Siding by the consignor, which brought into existence a contract of carriage between the consignor and the Railway Administration. In the circumstances, if the consignment is damaged or loss due to misconduct or negligence of the employees of the Railway Administration, the latter becomes responsible for the loss and damage. In this connection, decision of the Apex Court in Union of India v. The West Punjab Factories Ltd., AIR 1966 SC 395 in which the Apex Court laid down the principles as to who can sue the Railway Administration for the loss or damage.
"From the mere fact that a railway receipt is a document of title to goods covered by it, it does not follow, where the consignor and consignee are different that the consignee is necessarily the owner of goods and the consignor can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee and the question whether title to goods has passed to the consignee has to be decided on other evidence. Ordinarily, it is the consignor who can sue if there is damage to the consignment, because the contract of carriage is between the consignor and the railway administration. Where, however, the property in the goods carried has passed from the consignor to consignee, the latter may be able to sue. Whether title to goods has passed from the consignor to the consignee depends on the facts of each case."
12. In the light of discussion above that consignor had booked the goods and there was contract between the consignor and railway administration, the plaintiff rightly filed the suit in the instant case. Therefore the argument of the learned counsel that the plaintiff being merely endorsee was not entitled to sue is accordingly answered that the plaintiff being consignor of the goods was entitled to sue.
13. Before parting, I feel called to observe that Indian Railways is the largest State owned Corporation and by reason of being a State owned Corporation, and serving the people of the largest democracy of the world, it has to conduct itself with elevated sense of responsibility and with utmost care and concern. In this connection, I recall the immortal observation of Justice Brandies of U.S. quoted in (1961) 367 US 643 at page 659 which have become classic. "Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself." The Railway cannot be seen to behave like private transporters who are often seen to be concerned with profits and are inclined to leapfrog to courts at the slightest pretext. It is the duty of Railway administration to ensure that loading and unloading is not left to the unguided discretion of the consignors and it must exercise utmost vigilance and circumspection and beef up vigilance at the time of loading and unloading of goods in strict observance of the Railway Act lest any laxity on the part of Railway Administration should not imperil and jeopardize the safety of the Railways and security of the country. Recently, scraps offloaded somewhere at the shores in Gujrat from where they were transported to various factories situated all over the country, were found mingled with live grenades, rockets and it wrought havoc at places. Luckily, the mischief was nipped in the bud before it could assume proportion. From various news reports, it can be gleaned that those charged with the duties of supervising and checking on-loading and off-loading goods, were wanting in their duties. In my opinion, if the Railway Administration plugs the holes and its officials take care to do proper scanning of the goods at the" siding at the time of loading or unloading of goods, the burgeoning number of frivolous litigation could well be avoided besides saving public exchequer and court's precious time. It cannot be appreciated that after losing battles in both the courts below, the matter was dragged to this Court by way of Second Appeal on grounds which do not yield any substantial question for determination and still the matter has been lingering since 1976, that is to say, it has taken 28 years to come up for final disposal. As stated supra, the Railway Administration must pay heed that it is a responsible Government owned Corporation and it should watch every step with care and concern and take measures consistent with the urgency of situation and its responsibility so that unwarranted frivolous litigations do not gain ground.
14. In view of the above, the second fails and is accordingly dismissed.