JUDGMENT Shrivastava, J. This is an appeal by the Union Government representing the Central and Western Railways against the judgment and decree of the 2nd Additional District Judge, Khandwa, dated 29-7-1958. The suit leading to the decree was instituted by the respondent for recovery of damages to his consignment of tobacco leaves which was booked on 8-8-1965 from Kamoli to Burhanpur. When the consignment arrived at Burhanpur, it was found that out of 210 baga in the consignment, 105 bags were damaged by water. On separating the damaged tobacco, it was found that 22 maunds and 30 seers of tobacco was damaged to the extent of 80 per cent, and 23 maunds and 5 seers was damaged to the extent of 50 per cent. The damage was ascertained after four months as per Exh. D-3 on 30-12-1955 when the first lot had reduced in weight to 24 maunds and 1 seer and the second lot to 21 maunds and 36 seers on account of evaporation of moisture. The first lot had to be destroyed as worthless and the plaintiff took delivery of the second lot after paying excise duty and used it along with some good tobacco in manufacturing bidis. The plaintiff claimed as damages the price of the tobacco as per invoices, railway freight, excise duty and profit at 30 per cent. He also claimed interest at 6 per cent, per annum. In addition, he claimed the price of 29 seers of tobacco for shortage in weight, value of empty bags, expenses incurred in assorting the tobacco and charges for giving notices. The defendants pleaded that the consignment was booked at owner's risk and so the burden of proving misconduct on the part of Railways or their negligence lay on the plaintiff. They also pleaded that the tobacco was not properly packed. They denied that there was any negligence or misconduct on the part of the Railways. At any rate, the plaintiff was not entitled to profit, sorting expenses, interest and notice charges. The trial Court found that the consignment was booked at railway risk and was not kept in water-tight wagon and that the damage to the consignment was due to the negligence of the railway servants. The Court allowed as damages the cost price of the tobacco, railway freight and excise duty paid. Profit at 10 per cent, was allowed as also interest and notice charges. The Court allowed as damages the cost price of the tobacco, railway freight and excise duty paid. Profit at 10 per cent, was allowed as also interest and notice charges. The claim for shortage and charges for assorting the tobacco were also allowed. The claim was thus decreed for Rs. 10,029 only. Before we consider the merits of the case set up by the parties, we may briefly refer to the responsibility of the Railway Administration as carriers in respect of goods entrusted for carriage. u/s 72 of the Indian Railways Act the responsibility of the Railway Administration is that of a bailee u/s 15L of the Indian Contract Act which means that they have to take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods. Section 74-C provides that the goods may be booked either at ordinary tariff rate, known as the "railway risk rate' or at specially reduced rate, known as the 'owner's risk rate'. In the case of goods booked at railway risk rate, the burden of proving proper care of the goods is on the Railway Administration; but in the case of goods booked at owner's risk, the Railway Administration cannot be held liable for damage except upon proof of the damage being due to negligence or misconduct on the part of the Railway Administration. Even when the goods are booked at railway risk rate, the Railway Administration is not liable u/s 74-A if the goods are in a defective condition or are defectively packed and the fact of such condition or packing is recorded in the forwarding note, unless the claimant proves that the damage was due to the negligence or misconduct on the part of the Railway Administration. It is, therefore, necessary to find out whether the goods in the instant case were booked at owner's risk rate or at railway risk rate. As would appear from the forwarding note (Exh. D-1) and the Railway Receipt (Exh. D-2), the tariff charged for the goods was under Classification IX. The relevant entries about the consignments of tobacco appear on page 287 of the Goods Tariff General Rules (1959) as follows: Articles. General Classification. Small Wagon-loada. W/-or C. C. Weight conditions under which wagon-load rates apply. B.G. M.G. N.G. Tobacco, country, manufactured P/10 110-B 10O-B 300 240 180 Includes? D-2), the tariff charged for the goods was under Classification IX. The relevant entries about the consignments of tobacco appear on page 287 of the Goods Tariff General Rules (1959) as follows: Articles. General Classification. Small Wagon-loada. W/-or C. C. Weight conditions under which wagon-load rates apply. B.G. M.G. N.G. Tobacco, country, manufactured P/10 110-B 10O-B 300 240 180 Includes? Biddy tobacco, i. e., broken or cot tobacco ready for use in making biddiee, Hookah tobacco or tobacco which has been subjected to a certain aromatic procees Tobacco, country, manufactured 100-B P/7 92.5-B 300 240 ISO Includes? Cured or dried tobacco loaves separated from stalks, Raw tobacco (green tobacco lealves) Tobacco butta, Tobacco butts, duts, Tobacco dust, Tobacco etalka. The consignment booked by the respondent has been described in the forwarding note as "Tamaleoo Bidi Patti." The implication of this expression would be that the consignment consisted of "tobacco used in making bidis in the form of leaves". The forwarding note and the Railway Receipt do not expressly show whether the goods were booked at railway risk rate or owner's risk rate. Classification IX of the tariff under which the goods were charged appears in both the items extracted above. In the first item, there are two rates offered and Classification IX is the specially reduced rate. For item 2, there is only one rate which would necessarily be the railway risk rate. The consignment as described by the respondent in the forwarding note evidently falls under item 2, as it consisted of tobacco leaves. The first item does not deal with leaves at all. Moreover, Chimanlal (P. W. t) and Noor Mohammad (P. W. 5) have stated that the tobacco in the consignment was un-manufactured. That being so, the only classification applicable to the goods would be that contained in the second Hem. Shri K.V. Tambey for the appellant pointed out that we must assume that the goods were not booked at railway risk rate, as the certificate referred to in section 74-C (2) had not been produced by the respondent. In the first place, the respondent was not called upon to file any such certificate. Secondly, subsection (2) only provides that such a certificate shall be granted by the Railway Administration to the consignor. It does not anywhere lay down that the certificate shall be the only proof of the fact of election of railway risk rate. In the first place, the respondent was not called upon to file any such certificate. Secondly, subsection (2) only provides that such a certificate shall be granted by the Railway Administration to the consignor. It does not anywhere lay down that the certificate shall be the only proof of the fact of election of railway risk rate. Actually, there was no question of election, as the consignment did not fall under the first item and fell under the second item for which there is only one rate provided. This fact is further supported by the forwarding note (Exh. D-1) in which there is no entry against clause (3) of the foot-notes relating to alternative rates. Had there been two rates, the booking clerk would have insisted upon clause (3) being filled in. We, therefore, hold that the goods were booked at railway risk rate. That being so, sub-section (3) of section 74-0 of the Railways Act has no application. An attempt was made by Shri Tambey to bring the case u/s 74-A. He pointed out that the packing in this case was not according to rules, as the consignment should have been packed in "double gunny bags": (See Packing Condition No. 7, Chapter IX, section I, page 322 of the Goods Tariff General Rules, 1959). Section 74-A has no application to the case in as much as the fact of the defective packing has not been recorded in the forwarding note. As has been recently held by a Division Bench of this Court in Bap Jiwa Khan v. The Union of India C.R. No. 178/61, D/. 30-8-1961, the Railway Administration is entitled to the protection of section 74-A only in cases where the fact of defective packing is noted in the forwarding note. As the case does not fall either u/s 74-C (3) or Section 74-A, the liability of the Railway Administration is governed by the general provisions in section 72 of the Railways Act. Where a bailment is made to a particular person, the bailee is bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment. The proof of that rebate upon him. Accordingly, it was the duty of the Railway Administration to show that they had taken reasonable care of the goods during transit. The proof of that rebate upon him. Accordingly, it was the duty of the Railway Administration to show that they had taken reasonable care of the goods during transit. In paragraph 3 of the plaint, the plaintiff had alleged generally that 105 bags of tobacco were badly damaged by rain, that the consignment was not loaded in a water-tight wagon and that the Railway servants did not observe the usual precautions laid down by the Railway Rules for protecting the consignment in rainy season. These averments were denied in paragraph 3 of the written statement without stating what care the Railways took to prevent the damage. At the stage of evidence, in addition to the case that the damage occurred in the wagon, the plaintiff also sought to prove that when the consignment arrived at Burhanpur it was unloaded at an open place without adequate protection with the result that when it rained on the night after unloading the consignment became soaked in rain water. Shri Tambey contends that this improvement in the story should not be believed and the plaintiff should be restricted to the case that the damage occurred while the goods were inside the wagon. The plaintiff has used the word "transit" in paragraph 3 of the plaint which is wide enough to over all the period during which the consignment remains in possession of the railway, that is, until the moment it is actually delivered to the consignee. [See Josef and Ismail Company v, Governor-General in Council 1947 NL J212 : AIR 1918 Nag. 65 : ILR 1947 Nag, 335], The pleadings thus cover the damage which was caused after unloading. Further, the case set up by the plaintiff at the evidence stage cannot be considered to be an afterthought in view of the correspondence between the parties which has been placed on record. It is apparent from Exh. D-7, which is a telegram dispatched by the Station Master to the higher authorities on 12-S-1955 as soon as the wagon arrived, that it was found on unloading that 105 bags were partly wet and damaged. The damage was discovered as soon as the wagon arrived and must, therefore, have occurred while the bags were in the wagon. Exh. D-7, which is a telegram dispatched by the Station Master to the higher authorities on 12-S-1955 as soon as the wagon arrived, that it was found on unloading that 105 bags were partly wet and damaged. The damage was discovered as soon as the wagon arrived and must, therefore, have occurred while the bags were in the wagon. Exh. P-16 is a letter, dated 13-8-1955, by the respondent to the Station Master, Burhanpur, in which he complained that the bags were found damaged by rain on arrival and be further added that "wagon was emptied in open in a shallow place. The tat parties were defective. Consequently, when it rained last night, most of the bags got soaked in water". The complaint about the damage which occurred after unloading was made on the very next day after the unloading. The railway was, therefore, well aware of the grievance of the plaintiff. Shri Tambey suggests that the story about damage being caused by rain on the night of 12-8-1955 must be false, as the number of bags which were found damaged on unloading remains the same after the alleged damage by rain in the open. The coincidence is not at all surprising inasmuch as it is possible that the damage caused by rain on that night may have been caused to a lesser Dumber of bags in which case the total number of bags damaged would be the same, though the extent of damage would be aggravated. On the evidence on record, we are satisfied that the damage to the bags was caused both while they were inside the wagon and also when they were unloaded in an uncovered place and were not adequately protected from rain. No evidence has been, adduced on behalf of the Railways to show that the wagon which was used for transporting the tobacco was water-tight; but the appellate-railways rely upon the statement of the plaintiff as P. W. 1 who says that the wagon was loaded in his presence and it was not water-tight at the word "water-tight" was not written on it. It is argued that the plaintiff does not allege that there were holes in the roof of the wagon or that the doors were insecure. Reliance was placed on the decisions in Secretary of State v. Seth Laxminarayan AIR 1933 Nag. 17 and B.N. Ry. Co. Ltd. Vs. It is argued that the plaintiff does not allege that there were holes in the roof of the wagon or that the doors were insecure. Reliance was placed on the decisions in Secretary of State v. Seth Laxminarayan AIR 1933 Nag. 17 and B.N. Ry. Co. Ltd. Vs. Dhanjishah Pestonji and Another, which suggest that a "water-tight" wagon is not to be understood as a guarantee that it is actually water-tight and that no rain water can go inside under any circumstances. Both these cases dealt with consignments under risk notes which placed the responsibility on the consignor to show that the damage was caused on account of the negligence or misconduct of the railway. It was under these circumstances that it was observed that the burden was not discharged unless the plaintiff proved that the wagon was defective at the time of the start. In the instant case, the burden is on the railways to show that they had used a proper wagon as the consignment was booked at the railway risk rate. They have given absolutely no evidence to show that the wagon was leak-proof. The damage caused to the consignment on arrival is sufficient proof of the negligence of the railway servants; and in the case of a consignment booked at railway risk rate, it ia for the railway to explain that the damage occurred in spite of due care taken by them. This the railways have not done in the present case. A grievance was made by Shri Tambey that the trial Court did not grant an adjournment to the railway for adducing necessary evidence on the point. We find from the order-sheets recorded by the trial Court from 10-1-1958 to 12-7-1958 that the railways themselves did not summon any witnesses and did not make a request for adjournment of the case when it was finally heard. In view of the negligence of the railways in calling their witnesses, the trial Court was amply justified in refusing an adjournment. In view of the fact that the railways have not proved that they took sufficient care of the consignment both while it was inside the wagon and while it was in their possession after unloading, they are liable for the damage which has been caused to it by rain water. In view of the fact that the railways have not proved that they took sufficient care of the consignment both while it was inside the wagon and while it was in their possession after unloading, they are liable for the damage which has been caused to it by rain water. It was next contended for the appellant that damages" which can be claimed in such a case depend upon the market value on the date and at the place of delivery; and as the plaintiff has not adduced any evidence on this point, the claim for damages should be dismissed. It is true that in the case of damage to railway consignments,, the compensation has to be assessed on the basis of the market price at the destination on the date of delivery. [See Dominion of India v. Firm Ghhaganlal Premaji AIR 1931 Nag. 367 and Union of India (UOI) Vs. Asharfi Devi and Others, . It is also true that no Court can assess the damages with anything like mathematical precision and accuracy in all cases; but, as observed by Mookerjee J. in P.T. Kingeley v. The Secretary of State AIR 1923 Cal. 49: This does not mean that absolute certainty is required. Do in all cases, is there a necessity for direct evidence a to the amount. Damages are not uncertain for the reason that the loss sustained is incapable of proof with the certainly of mathematical demonstration or is to some extent contingent and incapable of precise measurement. As Harlan J, observed in delivering the judgment of the Supreme Court of the United States in Betgel v. Baltimore and C.R. Co. (1897) 169 U S 26, certainty to reasonable extent is necessary, and the meaning of that language is that the loam or damage must be BO far removed from speculation or doubt as to create in the minds of intelligent and reasonable men the belief that it was most likely to follow from the breach of the contract and was a probable and direct result thereof. The Court is not altogether relieved of the duty of assessing the damages, aa it can, on the evidence and materials actually before it, simply because the plaintiff fails to adduce the best evidence available. A.V. Joseph v. R. Shew Bux 49 IC 691 (P.C.). In Bihar Agents Ltd. Vs. The Court is not altogether relieved of the duty of assessing the damages, aa it can, on the evidence and materials actually before it, simply because the plaintiff fails to adduce the best evidence available. A.V. Joseph v. R. Shew Bux 49 IC 691 (P.C.). In Bihar Agents Ltd. Vs. Union of India (UOI) and Others, , in the absence of evidence as regards the market price at the place of delivery, the damage caused to the plaintiff on account of the loss of a consignment of sarees was assessed on the basis of the cost price entered in the invoice; but profit and costs of sending notices were not allowed. Similarly, in Union of India (UOI) Vs. Bikaner Textiles and Others, the contention that the claim of the plaintiff should be rejected in the absence of proof of market price at the place of destination was rejected and it was held that the cost price mentioned in the bijak should be accepted as its correct value. Although it is true that the plaintiff has to assess his damages on the basis of the market price at the place of delivery, we do not agree that the claim should be dismissed completely in the absence of such proof when there is material on record from which such price can reasonably be determined. The goods in question were tobacco leaves meant for manufacturing bidis. These were being consigned from Ranoli which is in Gujarat to Burhanpur. We can take judicial notice of the fact that Gujarat is a recognised market for such tobacco from where Bidi traders in Madhya Pradesh purchase their requirement of tobacco. Consequently, under the special circumstances of the case the cost price of the goods can be considered to be a good indication of the market price at the place of delivery. There is no evidence that there has been an unusual fall in the market price. We would under the circumstances restrict the damages to the cost price of the goods and the transportation charges, as this would fairly represent the market price of the goods in question at Burhanpur. As the plaintiff has not proved the normal profit taken by a trader on such goods, that cannot be allowed. Nor is the plaintiff entitled to the excise duty paid on that part of the consignment which he has used. As the plaintiff has not proved the normal profit taken by a trader on such goods, that cannot be allowed. Nor is the plaintiff entitled to the excise duty paid on that part of the consignment which he has used. Turning now to the question of actual damage, we 26nd from Exh. P-19 dated 6-1-1956, that 22 maunds, 12 seers and 12 chhataks of tobacco was actually destroyed, as it had become worthless. An intimation about this fact was sent by the telegram (Exh. D-4) to the railways before destruction. Although this part of the consignment was assessed as 80 per cent, damaged in the assessment memo. Exh. D-3, it is amply proved that it was completely useless and had to be destroyed. On this point, the plaintiff examined Harman Bhai (P. W. 2) who stated that wet tobacco is absolutely of no use. This witness was not cross-examined. The suggestion of Shri Tambey that even wet tobacco can be used for some purposes and must have some value is, therefore, of no force. As regards the remaining 25 bags containing 21 maunds and 35 seers which are assessed in the assessment memo. Exh. D-3 as 50 per cent, damaged) the plaintiff has claimed and the trial Court has allowed damages to the extent of 80 per cent. The plaintiff as P. W. 1 stated that he used the tobacco in these bags for making bidie after mixing it with superior tobacco. The actual lose caused to bid in the process has not been proved. He would not have been therefore entitled to any damage on this part of the consignment but for the fact that in paragraph 4 of the written statement the appellants-railways admitted that the stuff "bad depreciated in value by only 50 per cent." We do not find the damage as claimed by the plaintiff on this part of the consignment as proved; but on the admission of the appellants-railways we assess the damage at 50 per-cent, of its value. The assessment of damage as made in paragraph 15 of the judgment cf the trial Court is modified in the light of the above findings as under: I. .First lot of tobacco which was destroyed. (i) Price as per invoices. Rs. 3,974-11-0 (ii) Railway freight. Rs. 38- 5-6 II. Second lot of tobacco which was damaged at 50 per cent. The assessment of damage as made in paragraph 15 of the judgment cf the trial Court is modified in the light of the above findings as under: I. .First lot of tobacco which was destroyed. (i) Price as per invoices. Rs. 3,974-11-0 (ii) Railway freight. Rs. 38- 5-6 II. Second lot of tobacco which was damaged at 50 per cent. (i) Price as per invoices ,, reduced to half. Rs. 1,756- 0-0 (ii) Railway freight. Rs. 17- 7-0 III. Shortage of 29 seers. Rs. 121-11-6 IV. Empty gunny bags damaged. Rs. 229- 4-0 V. Labour charges for separating damaged tobacco. Rs. 98- 0-0 Total: RS. 6,235- 7-0 or to the nearest rupee. Rs. 6,235- 0-0 [Items NOS. III, IV and V were not challenged in appeal.] In the result, the appeal is partly allowed. The decree of the trial Court is set aside. Instead, it is decreed that the defendants-Railways shall pay to the plaintiff a sum of Rs. 6,235 only. The amount shall carry interest at 6 per cent, per annum from the date of suit until realisation. The costs of both the Courts shall be borne by the parties in proportion to success and failure. Final Result : Allowed