J.D. Kapoor, J.
1. Feeling aggrieved of the judgment dated 25th April, 1981 passed by the learned Additional District Judge whereby the Appeal of the appellant against the judgment dated 6th October, 1979 passed by the learned Sub-Judge was dismissed, the appellants have preferred the instant Appeal.
2. The suit for damages was filed by the appellants against the respondent for recovery of Rs. 10,000/- on account of damages suffered by it due to the negligence of the respondent. The consignment compromising of 438 cases containing 161-175 oranges, 56 cases having 96-112 oranges and 105 cases containing 191-212 oranges plus one gift case was booked by appellant No. 1 as consignor. Reasonable time for transit of similar consignment was four days but he above said consignment was detained or delayed by the respondent and was delivered after six days of the date of booking in damaged and devalued condition. The respondents assessed the damages 10% 90% and 50% respectively. Beside this there was a complete shortage of 33 cases.
3. The relevant extracts of the assessment certificate issued by the Railway Authorities are as under:-
'200 cases of oranges from wagon No. NRC-13895 containing examined and found damaged up to the extent of 10% after unloading oranges on 26.4.1970 from wagon No. ERC 38115 the floor of which was fond stained with acid out of 367 cases of this wagon 35 cases were with plank charred and damaged by acid and turned black. This contents were badly affected, rotten, damaged assessed up to extent of 90% contents of the remaining 332 cases of wagon were found pulpy over ripe and damaged assessed up to 50%. This is without prejudice.'
4. The claim of the appellant was dismissed mainly on the ground that there was nothing to suggest nor had the appellant succeeded in proving that at the time of transhipment of the consigned goods the floor of the transferee wagons was stained with some acid which had leaked there due to transhipment of some or the other type of acid and that the acid mentioned in the assessment certificate could be due to the defect in the oranges and further the probability of he oranges having emitted citric acid after deterioration and decay due to natural process could not be ruled out. The learned ADJ also observed that the appellant had failed to discharge tier onus to prove by positive evidence that the acid which has caused damage was the one other than citric acid which naturally comes out when the oranges are deteriorated with the lapse of time.
5. I am afraid none of the aforesaid observations of the learned ADJ are tenable. The plaintiff has the oranges were green at the time of booking and transhipment and in normal course they could remain in good condition for 4 or 5 days.
6. Admittedly the goods were delivered by the respondents on the 7th day. In the assessment certificate the cause of damages admitted by the respondents is that the floor of the wagon was stained with acid. Merely because it was not mentioned that as to what type of acid whether it was citric acid or hydrochloric acid does not mean that the floor of the wagons was not stained with acid. The appellant has specifically averred in the plaint that the damage has been caused due to the floor of the wagons being stained with some or the other kind of the acid. The respondents did not disprove this fact nor did they take the plea that the acid might have been emitted from the oranges after deterioration and decay due to natural process. The learned ADJ conjectured when he observed that the probability of the oranges after deterioration due to natural process and thus damaged the consignment by making them pulpy could not be ruled out. The negligence of the consignee is presumed unless the contrary is proved.
7. Section 93 of the Indian Railway Act is the most relevant provision as it fastens the responsibility upon the Railways for loss, destruction, damage or deterioration in transit except in certain circumstances. The aforesaid Section needs to be reproduced and is as under:-
'93. General responsibility of a railway administration as carrier of goods - Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment, arising from any cause except the following, namely:-
(a) act of God;
(b) act of war;
(c) act of pubic enemies;
(d) arrest, restraint or seizure under legal process.
(e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf;
(f) act or omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee;
(g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;
(h) latent defects;
(i) fire, explosion or any unforeseen risk;
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from anyone or more of he aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the goods.'
8. It is apparent from the aforesaid provision that the Railway Administration has to be held responsible for the loss or destruction or damage or deterioration of any consignment unless these are caused due to act of God, act of war, act of public enemies or due to natural deterioration or wastage in bulk or weight due to inherent defect,quality or vice of the goods etc. etc. The respondents have not taken the plea that the instant consignment was damaged due to natural deterioration or inherent defect in quality or vice of the goods. Rather the respondents admitted the cause of damage as detailed in the assessment certificate.
9. The leaned ADJ fell in gross error while shifting the onus upon the plaintiff to prove by positive evidence that the acid which had caused the damage was the one other than the citric acid which only comes out when the oranges are deteriorated with the lapse of time.
10. It was rather for the respondent to show and prove that the consignment when booked was not in good condition and delivery was in time and there was no delay in transit of goods and also that he floor of the wagon was clean and not stained with any acid. Once it was found that floor of the wagon was stained with acid it was for the respondent-UOI to prove that the acid was one other than citric acid or that the acid was the one that emitted form the oranges after deterioration and decay. had the oranges not been in a good condition it was open for the respondent not to accept the consignment. The very fact that it accepted the consignment, the oranges were green and were in good condition shows the negligence on the part of the Railways not only in handling the consignment but also causing the delay in its delivery which might have caused deterioration.
11. In view of the foregoing reasons. I find it difficult to sustain the judgment of the learned ADJ as well as that of the learned trial court and allow the Appeal. As a consequence the suit of the plaintiff stands decreed with costs with 6% pendente lite and future interest till realization. Decree sheet be prepared accordingly.