Debabrata Mookerjee, J.@mdashThis is an application u/s 25 of the Provincial Small Cause Courts Act directed against a decree made by a learned Small Cause Court Judge at Howrah, in a suit brought against the Union of India representing the railway administration for recovery of compensation in the sum of Rs. 697-3, being the price of potatoes which were said to have been damaged on account of misconduct on the part of the railway administration.
2. The facts are that on December 27, 1952, a consignment of potatoes was booked from a station on the North Eastern Railway for delivery to the Plaintiff-opposite party at Howrah. When the goods arrived at the destination, contents of some of the bags were found damaged, whereafter on February 25, 1954, the Plaintiff-opposite party brought a suit for recovery of compensation for short delivery of the consignment against the Petitioner, the Union of India representing the railway administration in the court of Small Causes at Howrah. The allegation was that there was misconduct on the part of the railway administration.
3. The Defendant-Petitioner contested the proceedings and filed a written statement. It was pleaded that the Petitioner could not be held-liable inasmuch as the consignment had been booked and carried at owner''s risk.
4. The learned Small Cause Court Judge, however, held that the Plaintiff had succeeded in establishing his claim to recover compensation and based his finding on the circumstance that there was nothing to indicate that there was inherent defect in the potatoes themselves on account of which they could be said to have become rotten. The question of notice u/s 77 of the Indian Railways Act as also u/s 80 of the CPC was decided in favour of the Plaintiff-opposite party. In these circumstances the learned Judge decreed the suit with costs against the Petitioner.
5. The Union of India challenges the decree thus made by the learned Judge on several grounds; it is not necessary to refer to these except one which to me appears to be of vital importance in the case. It is contended by Mr. Bose appearing on behalf of the Petitioner that the learned Judge failed to consider the effect of the provisions of Section 74C(3) of the Indian Railways Act and the failure led to an erroneous decision which is liable to be revised u/s 25 of the Provincial Small Cause Courts Act. I think there is substance in this contention.
6. Section 74C contains provisions as respects liability of a railway administration for animals or goods carried at owner''s risk rate. Sub-section (3) which is material to the present consideration is in these words:
When any animals or goods are carried or are deemed to be carried at owner''s risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants.
7. In the present case the Plaintiff did take advantage of the specially reduced rate and that being so, the terms of Sub-section (3) require that he must prove that the deterioration or damage to his goods was due to negligence or misconduct on the part of the railway administration or of any of its servants. It does not appear that this aspect of the matter was at all gone into by the court below. Section 74C is to my mind a specific provision which cannot possibly be ignored in a case of this kind where the Plaintiff took advantage of the benefit of special rate on reduced basis.
8. On behalf of the opposite party it has however been contended that in view of the provisions contained in Section 76 of the Indian Railways Act in a suit against a railway administration for compensation for destruction or damage, the burden of proof lies on the person claiming the compensation; but that burden does not extend to proving how the destruction, deterioration or damage was caused.
9. It is to be observed that Section 76 contains provisions of a general nature dealing with the question of burden of proof in a suit for compensation against a railway administration for delay, destruction or damage of goods. But Section 74C is a specific provision governing a case where the consignor has taken the advantage of reduced rate for the purpose of despatching his goods. It is indeed a well-known canon of construction that where there are two provisions in the same statute-one of a general nature and the other more specific and particular, the latter prevails and has to be applied upon proof of facts which attract application of such specific provision. There cannot be the slightest doubt that in the instant case the Plaintiff-opposite party availed himself of the benefit of the reduced rate, called the owner''s risk rate; having elected to do so he cannot avoid proving that destruction or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants before he can succeed in a suit for recovery of compensation. Furthermore, the words of Section 76 upon which the learned advocate on behalf of the opposite party has placed reliance, make it perfectly clear that that section has to be read subject to other provisions of the Act. The "other provisions" applicable to this case are the provisions to which I have just referred contained in Sub-section (3) of Section 74C of the Indian Railways Act. It is, therefore, clear that these two sections between them provide that when goods are tendered to a railway administration to be carried at a specially reduced rate, the railway administration cannot be held responsible for destruction, deterioration or damage except upon proof that such destruction, deterioration or damage was due to negligence or misconduct on the part of the administration or of any of its servants. Section 76, by itself cannot possibly be of any assistance in a case where a specific provision is applicable. Indeed, Section 76 itself contains indications that the legislature never intended that the general provision contained in that section will override any specific provision contained in any other part of the Act, that specific provision is to be found in Section 74C which must therefore control Section 76 in circumstances such as there.
10. As I have indicated, this aspect of the matter does not appear to have been gone into by the court below. It has to be found upon evidence and the pleadings of the parties whether the Plaintiff is entitled to succeed in view of the provisions of the Act to which I have just called attention. The courts below will proceed on the evidence already on the record and such further evidence as the parties may wish to adduce on the point indicated above.
11. The result, therefore, is that the judgment and decree of the learned Small Cause Court Judge are set aside; the Rule is made absolute and the matter is remanded to be, dealt with in accordance with law and the observations made above.
12. Costs will abide the result of the suit.
