K. Ramaswamy, J.@mdashThe unsuccessful Plaintiff Appellant''s suit is for damages against the railway administration for loss of the value of goods consigned, and the trial court partly decreed the suit for a sum of Rs. 34,331/- with 6 per cent interest from October 10, 1976 till date of realisation and disallowed interest at 6 per cent and the value of some items. Dissatisfied with the amount disallowed, the Appellant laid the appeal.
2. The facts are not in dispute. The Appellant consigned goods to the railway administration at Rajahmundry on January 20 and 21,1973 for carriage and delivery at the destinations, viz., Wadi Bandra and Kalyan. During January 1973, there was an acute agitation for separate Andhra. While the goods train has reached Eluru, at Powerpet railway station, the goods train was stopped and set ablaze by the agitating unlawful mob, as a result the goods were destroyed. For recovery of the value of the goods consigned, suit for damages was laid. The lower court has held that by operation of Section 78 (c) (ii) of the Indian Railways Act (DC of 1890) for short ''the Act'', the railway administration is not responsible for any loss on account of the mischief, riot, civil commotion, etc. but however it held that since the railway administration has not taken that much of care required of for stopping the train, they must be held liable for damages.
3. Mr. M.L. Ramakrishna Rao, learned Counsel for the Appellant, has contended that the court below having given a finding that the railway administration has not taken that much of care required of to protect the property consigned, it must be held liable for the entire goods consigned for transmission. Therefore, the suit in toto should have been decreed. With a view to appreciate the contention, it is necessary to see whether the burden cast on the railway administration u/s 73 of the Act has been discharged. Undoubtedly, Section 73 of the Act opens with the words "Save as otherwise provided in this Act," the liability is on the railway administration and it shall be responsible for the loss, destruction, damage, deterioration or non-delivery in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause, except for the causes enumerated thereunder. But Section 78 opens with a non-obstante clause and it reads thus:
78. Exoneration from responsibility in certain cases.--Notwithstanding anything contained in the foregoing provisions of this chapter, a railway administration shall not be responsible
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) for the loss, destruction, damage, deterioration or non-delivery of animals or goods proved by the railway administration to have been caused by or to have arisen from--
(i) xxx xxx xxx
(ii) riot, civil commotion, strike, lock-out, stoppage or restraint of labour from whatever cause, whether partial or general....
(Clauses (a), (b) and Sub-clause (i) of Clause (c) are not relevant for the purpose of the case. Hence omitted).
4. On a reading of the above section, it is manifest that the railway administration shall not be responsible for any loss, destruction or damage arising from civil commotion, strike, lock-out, stoppage, restraint of labour from whatever cause, whether partial or general. Therefore, the non-obstante clause takes out the effect of general liability cast on the railway administration u/s 73 to establish that it has taken all necessary precautions and care in transmission and it is for it to establish that such damage, loss, etc. has occasioned despite taking all necessary precautions and care. But Clause (c) of Section 78 takes out by engrafting the "non-obstante clause" that in situations arising out of rioting, civil commotion, etc. if any loss is caused to the property, the railway administration is completely absolved of its liability to pay damages. The question, therefore, is whether the destruction of the goods consigned by the Appellant is due to rioting, or civil commotion. Section 146 of the Indian Penal Code defines rioting thus:
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 141 defines "unlawful assembly" to mean an assembly of five or more persons, if the common object of the said persons is for the prosecution of five objects enumerated thereunder, one of which is to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the legislature of any State or any public servant in the exercise of the lawful power of such public servant; or to commit any mischief or criminal trespass or other offence.... It is an admitted fact that the agitation for separate Andhra State was virulent and violent and the destruction of public property was the order of the day. More than five persons have assembled unlawfully with a view to overawe by criminal force, the Central Government to carve out separate State of Andhra, the agitation was carried out, as a result, mischief was committed on the fateful day by setting ablaze the railway wagons at the railway station Powerpet-Eluru while the train was on journey and thus destroyed the goods. Therefore, the acts of the agitators do constitute rioting. Therefore, it comes within the fold of Section 78 (c) (ii) of the Act. It is also a civil commotion because several people pulled down the driver from running trains from the engines; assaulted the crew and set fire to several wagons. Therefore it comes definitely within the meaning of civil commotion. It is proved as a fact that the goods were destroyed as a result of setting ablaze the goods wagons and accordingly the loss or damage to the goods has been occasioned on account of civil commotion committed by the unlawful assembly of the agitators. Accordingly, Section 78 (c) absolves the railway administration from fastening the liability on account thereof. The absence of cross-objections obviated" the need to consider the evidence and finding of the court below that the railway administration has not taken that much care and precaution to protect the property from being destroyed by the agitators. Thus considered, I find no illegality in disallowing part of the claim or interest. The appeal is accordingly dismissed, but in the circumstances, each party is directed to bear its own costs.
