( 1 ) BHAGAT Ram plaintiff respondent booked 206 bags of onions on 2nd October,1951, from New Delhi to Calcutta under Railway Receipt No. 025841. Invoice No. 871. These goods were loaded in wagon No 3748/ 22. G. I. P. Railway The goods reached Calcutta on 14th October. 1951, and at destination it was found that 69 bags had deleriorated to the extent of 55 per cent while 100 bags to the extent of 46 per cent Plaintiff Bhagat Ram claimed that in due course of transit the consignment booked on 2nd October 1951 should have reached Calcutta and delivered to the consignee on 8th October 1951 but due to carelessness. negligence and misconduct on the part of the railway and its employees, the same reached late and was consequently delivered to him in a damaged and deteriorated condition To prove the period rcquired for journey of goods from New Delhi to Calcutta by a goods train the plaintiff in his plaint and evidence cited an example of another consignment onions looked on 3rd October 1951 under Railway Receipt No 374795 which was delivered to the consignes on 9th October, 1951. at Calcutta The case of the plaintiff was that the onions booked by both the above mentioned wagons were purchased from the samp mount and were of the same quality. According to the plaintiff the goods booked on 3rd October 1951 did not get deteriorated because they reached the destination in time while so far as the goods in question are concerned they got deteriorated because of the delay as mentioned. The onions booked on 3rd October 1951 fetched piaintiff Rs 9144/12/6 while the goods in question were sold for Rs 3248/1/ and the plaintiff claimed Rs 5896/11/6 as damages on account of deterioration on the ground that if the goods had not deteriorated they would have fetched the same amount as the other consignment. ( 2 ) THE goods were admittedly booked on owner s risk and were of a perishable nature. ( 2 ) THE goods were admittedly booked on owner s risk and were of a perishable nature. The defendants inter alia alleged that the time taken in transit was a normal one and neither the railway ad,omostration its employers were guilty of any carelessness negligencc or misconduct The trial Court inter alia decided that it was the duty of the railway administration to slow as to how the goods were dealt with in the journey and having failed to do so they were liable for damages The trial Court granted the plaintiff a decree for Rs 4800. 00 and arrived at this amount on a finding that the goods in question could have been sold for Rs. 8048. 20 The lenrned counsel for the appellants has pressed only two points before us (i) that there was no negligence or misconduct on the part of the railway administration the burden to prove which was on the plaintiff and (ii) that the plaintiff had failed to prove that the goods did not deteriorate because of some inherent defect in the quality or because of the presence of moisture therein at the time of booking. ( 3 ) BEFORE 1949 the Indian Railways Act had provided for various risk notes under which the goods could be booked but by Act 56 of 1949 sections 74c. 74d and some other sections were introduced which were again deleted in 1961. It is the common case of the parties that having regard to the date of booking this case lias to be decided in the light of the provisions contained in the Act after its amendment by Act 56 of 1949 and before sections 74c etc were deleted. S. 74c (3) provides that when the "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 THE onus is therefore, clearly placed on the consignor to prove negligence or misconduct before he may be held entitled to damages on account of deterioration. deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants THE onus is therefore, clearly placed on the consignor to prove negligence or misconduct before he may be held entitled to damages on account of deterioration. Section 74-D expressly casts an obligation on the railway administration in given cases to disclose to the consignor how the consignment or package was dealt with throughout the time it was In its possession or control and futher provides that if negligence or misconduct on the part of the railway administration or of any of Its servants cannot; be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor. The duty to disclose the handling of the consignment is cast on the administration only in two cases (a) where the whole of a consignment of goods or The whole of any pack age forming part of a consignment carried at owner s risk rate is not delivered to the consignee and such nondelivery is not proved by the railway administration to have been due to any accident to the train or to fire. or (b) where, in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand. it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilferred in transit ( 4 ) BEFORE I discuss tile evidence as to negligence it is pertinent to point out the position in law as obtains in the light of the statutory provisions. Mr. Radhey Lal Aggarwal, the learned counsel for the appellants, says two things (1) section 74d not being applicable it is entirely for the plaintiff to prove negligence and/or misconduct on the part of the railway administration, and (iii) no such negligence or misconduct can be in ferred merely from the fact that the consignment booked on 2nd October. 1951. readied Calcutta on 14th October, 1951, that is, within a period of about 13 days. 1951. readied Calcutta on 14th October, 1951, that is, within a period of about 13 days. The learned counsel further says that the railway administration is entitled to adopt the position of saving: "whatever my position may be I decline to render you the least assistance and I am not going to let you know any more than I am bound to under the express provisions of the statute. "in short, Mr. Radhey Lal s argument is that there is no obligation on the railway to disclose to the plaintiff as to how the goods were dealt with in the course of transit, or. for the matter of that. render any assistance to enable the plaintiff to prove his case. and that the plaintiff has failed to prove that there was any delay in transit due to neglisence or misconduct of the railway administration. The learned counsel further says that even if there be any duty to disclose cast on the railway administration, no inference could be drawn against them unless the plaintiffhad. in the event of his dissatisfaction with the disclosure that may have been made by the defendants asked the Court to require the railway to make further disclosure According to the appellants learned counsel the plaintiff not having demanded any disclosure the occasion for any adverse inference against the defendants never arose . In support of this proposition he has relied on a decision of their Lordships of the Supreme Court in Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755 . Since the obligation to disclose is limited to cases mentioned in sec tion 74d it is not necessary to deal with this aspect o!" the controversy. Even if there be no such obligation under the Railways Act to make a disclosure, the railway administration is not completely absolved from proving facts especially within its knowledge. This duty is case under section 106 of the Evidence Act It is no doubt true that in cases to which section 74c of the Railways Ac! applies the burden of proving misconduct or negligence is on the plaintiff, but It is equally true thaf with respect to the facts within its special knowledge the railway administration should call all the material witnesses to prove such facts. In his view I am supported by Ramkrishna Ramnath Shop, Kamplee v. Union of India. applies the burden of proving misconduct or negligence is on the plaintiff, but It is equally true thaf with respect to the facts within its special knowledge the railway administration should call all the material witnesses to prove such facts. In his view I am supported by Ramkrishna Ramnath Shop, Kamplee v. Union of India. AIR 1900 Bom 344: Union of India v. Shri Ram Richpal. AIR 1965 All 246 ; and Union of India v. Delhi Cloth and General Mills Co Ltd AIR 1964 Pandh 147. When examined in the light of the statutory provisions, namely. section 74c of the Indian Railways Act and section 106 of the Indian Evidence Act and of the various decisions mentioned above the position that emerges is this. In cases covered by section 74d a duty is cast on the railway administration to at once disclose as to how the consignment was dealt with through out the time it was in its possession or control, and, if necessary, to give evidence thereof, before the consignor is called upon to prove misconduct. This duty, as I have said above, arises at once is not confined to the stage of litigation. If the railway Administration fails to fulfil that obligation the consignor can take the assistance of the Court in obtaining a direction to make the necessary disclosure. On the other hand, in cases not covered by section 74d the obligation arises at the litigious stage and the railway administration must under section 106 of; the Indian Evidence Act prove the fads within its special knowledge ( 5 ) HAVING thus -stated the legal position I now proceed to consider the evidence on the record. Radha Krishna. Goods Clerk New Delhi Godown. appeared as D W 1 and stated that the train in which the goods in question were loaded left New Delhi on 2nd October. 1951. According to Kishan Chand (D. W. 2 ). who is Train Clerk. Ghaziabad, the train reached Ghaziabad on 5th October, 1951. Kishan Chand further disclosed that the distance between New Delhi and Gaziahad s only 12 or 12 miles and normally a train takes three to four hours to bench Ghaziabad He further stated that onions are perishable goods and such goods are given preference. who is Train Clerk. Ghaziabad, the train reached Ghaziabad on 5th October, 1951. Kishan Chand further disclosed that the distance between New Delhi and Gaziahad s only 12 or 12 miles and normally a train takes three to four hours to bench Ghaziabad He further stated that onions are perishable goods and such goods are given preference. According to this witness the train left Ghaziabad on 6th October 1951 at 22-15 hours It appears from the above evidence that the train was held up somewhere between Delhi and Ghaziabad from 2nd October to 6th October, 1951. The plaintiff served certain interrogatories on the defendants which are not available on record. The answers to the interrogatories are, however, available,. The Claims Inspector Karam Chand filed an affidavit dated 12th January, 1965, in which be stated that he was deputed to inquire if the wagon in question was detained at Yamuna Bridge and for how long. He made the requisite inquiry and according to the said affidavit "the above wagon did not pass Yamuna Railway Station but it passed Tundla by through Train 212 DN on 7th October, 1951" There is again an affidavit by Inder Sain, Assistant Commercial Officer. Northern Railway, Delhi. D/- 12th March. 1956, which also appears to be in answer to the interrogatories, wherein it is stated that the relevant records having been destroyed no information was available. It is, therefore, obvious that the railway administration completely failed to prove the facts especially within its knowledge and con sequently an inference can legitimately be drawn against the defendants. Again, it is the plaintiff s evidence that the goods In question and onions despatched on 3rd October, 1951, were of the same quality and were purchased from the same amount. The goods booked on 3rd October, 1951, reached destination in perfect condition on 9th October, 1951. This evidence is not only unrebutted but the plaintiff was also not cross examined on this matter. It is possible that the train remains stationary at some place between Delhi and Ghaziabad between the 2nd and 5th October, 1951. That must have resulted in damage to the goods. Possibly there is better circulation of air in a moving train and if it was stationary the goods must have been deprived of that air circulation resulting in deterioration. It is possible that the train remains stationary at some place between Delhi and Ghaziabad between the 2nd and 5th October, 1951. That must have resulted in damage to the goods. Possibly there is better circulation of air in a moving train and if it was stationary the goods must have been deprived of that air circulation resulting in deterioration. I have no hesitation in accepting the evidence led by the plaintiff that these goods were of the same quality us the goods despatched bv the other train on 3rd October, 1951. That leads me to believe that if the train had not been delayed between Delhi and Ghaziabad and had not been stationary, these goods would also have reached destination safely. The defendants having failed to lead any evidence or offer any explanation for inordinate delay in the journey between Delhi and Ghaziabad an inference of negligence arises against them. ( 6 ) IN the result, negligence on the part of the railway administration stands fairly proved and I would, in the circumstances, uphold the decision of the trial Court. The appeal is therefore, dismissed with costs