JUDGMENT A.P. Sen, J. 1. This judgment will also govern the disposal of Second Appeals No. 501 of 1964 and 502 of 1964, heard alongwith this appeal. These appeals, by the plaintiff, arise out of three suits instituted by him, for recovery of damages in respect of different consignments of safety matches, due to alleged negligence and/or misconduct of the railways or their servants. 2. The facts leading to these appeals, briefly stated, are these. The consignments of safety matches (each consisting of 150 bundles of Tiger head brand safety matches (40s Wimco size), were entrusted by M/s Eastern Match Company, Ltd., Tirumangalam, to the Southern Railway on 23rd April 1959, for carriage to Katni-Murwara, on the Central Railways, under sepatate railway receipts. The goods were consigned to self, and the railway receipts were endoresed in favour of the plaintiff. The consignments were carried on three different railway systems, viz., the Southern Railway, the South Eastern Railway, and the Central Raitway. The plaint allegations is that due to the negligence and misconduct of the railways, the packages of safety matches were (i) mishandled, at the transhipment point, at Arokonam, and (ii) that the wagons, in which they were carried, were loose shunted at the intermediary stations, with the result that the packages were crushed and heavily damaged and thereby the goods became useless and, unmarketable, and had to be destroyed. After the arrival of these consignments at Katni-Murwara on 15th May 1959, the plaintiff was given open delivery of the goods on 16th May 1959, as per Certificates of damage, with the following endorsement:- "Out of 150 bundles, 108 bundles of matches were received in wrapper torn condition and packages slightly crushed, but contents full." (This was in Civil Suit No. 52-B of 1960. The other Certificates were in identical terms except for the difference in quantity). The plaintiff claims damages on the allegation that the goods were booked at railway risk and on that basis, seeks the recovery of the price of the damaged goods as per Certificates of damage which had become useless and unmarketable, apart from expenses for disposal and loss of profits 10 percent of the selling price. 3. These suits were filed against the Union of India as representing the three railway administrations. The railways filed a joint written statement denying the claim particularly that the goods were booked at railway risk. 3. These suits were filed against the Union of India as representing the three railway administrations. The railways filed a joint written statement denying the claim particularly that the goods were booked at railway risk. According to the railways, the goods were booked at owner's risk with condition L/U. They denied that the packages had been crushed or that the goods had become useless and unmarketable or that there was loose shunting causing the alleged damage to the goods. It was further alleged that the stuff used for packing cases and for covering the bundles were not of good quality but were week enough not to ensure safe arrival of the goods at destination. As regards the alleged damage, it was stated that the damage, if any, was due to "natural causes", i.e. by the movement of wagons in transit over a long distance, and any slight crushing of the packages would not render the goods useless and unmarketable. The allegation that notices under section 77 of the Indian Railways Act had been served on the respective railways was not denied. 4. Before dealing with these appeals, it would be convenient to set out a few more facts. There had been a transhipment of these goods at Arokonam from metre-gauge into broad-gauge wagons. The evidence of R. Thangarelu, Transhipment Clerk, Arokonam, (D.W.3), shows that the packages arrived at Arokonam in: good condition. The unloading of the packages from the metre-gauge wagons and their loading into broad-gauge wagons was done by the railways. The packages were handled with care, and there was no loose shunting of the wagons. At Arokonam, the railway authorities pasted caution labels "Not to be loose shunted" on the wagons. The broad-gauge wagons were, however, not fully loaded, this was because the packages were not sufficient to fill up broad-gauge wagons. The railway authorities loaded no other goods in the broad-gauge wagons due to the consignments being of dangerous goods. From this evidence it appears that the consigned goods were in perfectly sound condition on their arrival at the transhipment point at Arokonam. It must, therefore, be accepted that the goods were entrusted by the consigners to the Southern Railways, at Tirumangalam, in good condition. From this evidence it appears that the consigned goods were in perfectly sound condition on their arrival at the transhipment point at Arokonam. It must, therefore, be accepted that the goods were entrusted by the consigners to the Southern Railways, at Tirumangalam, in good condition. The wagons arrived at Katni-Murwara with their seals and rivets intact, but some of the packages reached the destination with their wrapper torn, and they were 'slightly crushed', but with 'contents full', as per the Certificates of damage. Mulchand (P.W. 2), Chief Goods Clerk Katni-Murwara, describes from the Deficiency & Discrepancy Register that the damaged bundles were found "with their covering torn" and "contents partly crushed". Whatever may be the meaning of the words 'slightly crushed', there is no manner of doubt that the words used were vague and indefinite and they do not convey the extent of actual loss. 5. The first point for consideration is, whether the railways are exonerated of all liability for damages in transit on account of defective packing of the goods, by reason of section 74-A of the Railways Act. There is no doubt that there is a specific plea in that behalf, namely, that the stuff used for the packing of the cases and the covering of bundles were not of good quality to ensure safe arrival of the goods at destination. The Red Triff No. 17-Rules & Rates for the Conveyance by Rail of explosives and other Dangerous Goods-In Schedule V, lays down the following packing conditions: "(1) Must be packed in strong dust-tight wooden cases which in the case of MATCHES, NON-SAFETY, must have metal lining, all loose edges of which must be soldered. (2) The outer wooden cases used for the carriage of matches shall be of the following thickness of wood; if gross weight of case with contents does not exceed 5 maunds in weight, 1 inch thick throughout, if gross weight of case with contents exceed 5 maunds, 7/8 inch throughout. (3) MATCHES, SAFETY, may, however, be carried in air tight tin or zinc boxes properly soldered, provided (such tin or zinc boxes are strong enough as outer packages and that they do not exceed a limit in size of 27"x14"xI4", weighting approximately 24 seers and do not contain more than 180 packets of MATCHES, SAFETY. (3) MATCHES, SAFETY, may, however, be carried in air tight tin or zinc boxes properly soldered, provided (such tin or zinc boxes are strong enough as outer packages and that they do not exceed a limit in size of 27"x14"xI4", weighting approximately 24 seers and do not contain more than 180 packets of MATCHES, SAFETY. (4) MATCHES, SAFETY, may also be carried in fibre-board cases which must comply in every respect with the regulations given in Appendix VI. (5) (i) MATCHES, SAFETY, packed in water-proof "double ocean paper", each package containing not more than 10 gross boxes of matches, may be accepted for dispatch in full wagon-loads of not less than 120 maunds (Broad Gauge), 80 maunds (Meter or Narrow Gauge) per 4-wheeled wagon. Wagons with wooden floors or sides are not to be used for this traffic. No other commodity should be loaded in the same wagon. (5) (ii) MATCHES, SAFETY, packed in "double Ocean paper" or "fibre-board cases", may however, be loaded with matches packed otherwise than in "double Ocean paper" or "fibre-board cases", provided that (1) the matches packed in wooden and metal cases are stowed underneath and not on the top of the matches packed in "double Ocean paper" or "fibre-board cases" and (ii) matches packed in "fibre-board cases" are stowed underneath and not on the top of the "Ocean paper" packed matches. (6) MATCHES, NON-SAFETY, may also be carried when packed in air-tight zinc boxes properly soldered, i.e., without the wooden cases, provided that the packets shall not contain more than 10 gross boxes of matches. (7) MATCHES, SAFETY, may also be packed in all metal boxes, made of 22 gauge galvanised iron plate, measuring not more than 3'x2'-1"x1'x5"' provided with a properly fitted securely closed lid. Each such box shall contain not more than five 10 gross packets of matches. Carriage may be by ordinary wagon in full wagon loads, provided that no other commodity is loaded in the same wagon." The railways are, however, faced with the difficulty that in the Forwarding Notes, which constitute the contract of carriage, there is the following term inserted:- "The matches are packed in dozen packets and bundled in waterproof Ocean craft paper (and packed in cases) not liable to break on rough handling or on normal load. If Railway authorities incur any loss due to fire on account of defective packing, we shall bear such losses, if proved defective in packing." This term clearly militates against the defence plea regarding defective packing. The evidence of Sayed Muzzaffar Hussian (D.W. 4) Senior Commercial Inspector, (Chief Goods Clerk at Katni-Murwara), no doubt, suggests that the outer covering was of thin paper and due to the constant shifting of packages in transit, their covering got torn, and he categorically states that the ocean craft paper had not been used in wrapping the bundles. This plea as well as the evidence runs counter to the accepted condition in the Forwarding Notes that ocean craft paper had been used for the outer covering of the bundles and that other packing conditions had been duly complied with. Nothing, therefore, turns on this aspect of the case. 6. The main question that arises for consideration is, whether the goods were booked at 'Railway Risk', or 'Owner's risk' with the condition L/U, meaning 'loading and unloading by owner'. The Railway Receipts bear the following endorsement: "Rate Rs.9.90 per maund." That was the freight charged for the carriage of these goods. The relative Forwarding Notes are, however, more specific. At the foot-note of these, there is an entry by the consignors, to the following effect: "O.R.D. Condition accepted." The parties are, however, not agreed as regards the legal meaning of this term. The Railways contend that this means "Owner's risk, dangerous". D. Thangadorai Pillai (D.W. 1), Assistant Station Master, Tirumangalam, who had the Forwarding Notes prepared by the consignors, has stated that in April 1959 there were two kinds of rates prevalent. The evidence of Ramaswamy Naidu (D.W. 2), Station Master, Tirumangalam, is also to the same effect. Now, the Goods Tarriff No. 32, Part I-General Rules for Acceptance of Carriage and Delivery of Goods, Chapter VIII, deals with the general classification of Goods. These rules provide for acceptance of tarriff for safety matches at two different rates; viz. the ordinary tarriff at Rs.11 per maund, and the reduced rate of Rs.9.90 per maund. Although, the words "Owner's risk" are not written in the Railway Receipts, but that condition finds embodied in the Forwarding Notes and must be regarded as the term on which the goods were entrusted to the Southern Railways for carriage. the ordinary tarriff at Rs.11 per maund, and the reduced rate of Rs.9.90 per maund. Although, the words "Owner's risk" are not written in the Railway Receipts, but that condition finds embodied in the Forwarding Notes and must be regarded as the term on which the goods were entrusted to the Southern Railways for carriage. It must, accordingly, be held, that the Court below has rightly come to the conclusion that the goods were consigned to self, by M/s Eastern Match Company Ltd., Tirumangalam, at owner's risk. As regards the condition 'L/U', meaning 'loading and unloading by', it is of no importance because admittedly the goods were not handled by the consignors at the transhipment point, at Arokonam, but the loading and unloading were done by the Railway Administration itself. 7. It is an established fact that the goods were booked at "Owner's risk". Under section 74-C (3), if the goods arc delivered to the Railways for carriage at owner's risk rate, the railways are not responsible, except upon proof that the loss etc., was due to the negligence and for misconduct on the part of the Railway administrations or any of their servants. The plaintiff has led no evidence. The railways administrations are, therefore, exonerated of all liability by reason of the fact that the goods were carried at 'owner's risk'. That is the inevitable consequence of section 74-C (3), which is in the nature of an exception to the general liability of the Railways as a common bailee, under section 72. The words "from any cause what soever", appearing in section 74-C (3) are wide enough to cover a case of this nature, where the goods are damaged due to natural causes, due to shifting of packages on account of movement during transit, over a long distance. The railway administration is, therefore, liable for the loss, etc. only if it is occasioned by its default or negligence. The burden of proof as to negligence rests with the plaintiff. The railway administration is, therefore, liable for the loss, etc. only if it is occasioned by its default or negligence. The burden of proof as to negligence rests with the plaintiff. The Court below has rightly held that: "The third sub-section 74-C of the Indian Railways Act absolves the Railway for the exigencies of loss, destruction, deterioration of, and damage to the goods, carried or deemed to be carried at owner's risk, except upon the proof that they are due to negligence or misconduct on the part of the Railway administration or any of its servants." This is also the view of this Court in Firm Kesrimal Ratanlal Sarda & Co. v. Union of India [ 1968 JLJ 540 = 1968 MPLJ 338 ], wherein Shrivastava and Singh, JJ. have stated that in a case to which section 74-C applies, the consignor must prove the negligence or misconduct of the railways and in the absence of such proof, the railways are exonerated of the liability. 8. The plaintiff had led no evidence showing either (i) manhandling of the goods at Arokonam, the transhipment point, or (ii) of any loose shunting, at the intermediary stations. On the contrary, the evidence of R. Thangarelu (D.W. 3), Transhipment Clerk, is that the goods were handled with care and the wagons were not loose shunted. The theory regarding loose shunting can not be accepted on account of the precaution taken by the railway authorities in affixing caution labels-"Not to be loose shunted", on the wagons. The burden was on the plaintiff to establish misconduct and negligence on the part of any of the railway administrations. This burden, the plaintiff could have discharged by asking the railways to make a disclosure of the manner in which the wagons were handled. In the absence of any such evidence, there is a presumption that the requirements of Rule 152 of the Rules framed under section 47 of the Act must have been complied with. The rule is in the following terms:- "152. Loose shunting - Vehicles containing passengers, explosives, dangerous goods, or live-stock, shall not be loose shunted and no loose shunting shall be made against such vehicle." 9. The rule is in the following terms:- "152. Loose shunting - Vehicles containing passengers, explosives, dangerous goods, or live-stock, shall not be loose shunted and no loose shunting shall be made against such vehicle." 9. The learned counsel for the appellant relying on the following observations of their Lordships of Supreme Court in Union of India v. Mahadeolal [ AIR 1965 SC 1755 ], urges that a fair inference arises that the wagons were loose shunted from the circumstance that the goods were received at the destination in a damaged condition although they were in good condition at the transhipment point, at Arokonam : "But where there is a breach by the railway of the obligation to make full disclosure the Court may more readily infer misconduct on the part of the railway or its servants or more readily presume under section 114 (g) of the Evidence Act against the railway," * * * * "Even after the suit was filed there was no statement by the respondent at any stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the Court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to made further evidence as the respondent wanted. In these circumstances, it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstances, we are of opinion that the risk note would still apply and the Court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the Court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct." These observations cannot be read out of context. Their Lordships were dealing with the effect of breach of obligation on the part of the railways to make a full disclosure as to how the particular consignment before them had been dealt with. That could not imply that a plaintiff on whom the burden is placed, can insist that an issue of this nature should be decided on mere inferences alone, without trying to adduce any evidence. 10. That could not imply that a plaintiff on whom the burden is placed, can insist that an issue of this nature should be decided on mere inferences alone, without trying to adduce any evidence. 10. In the present case, the goods were in perfect condition at the transhipment point. Nothing is known how the goods reached their destination in a damaged condition. The wagons reached the destination with their seals and rivets intact. The plaintiff should have asked the railways to produce the relevant record showing how the wagons were handed, after transhipment of the goods at Arokonam, till they reached their destination. That was not done and we are left to speculate. The learned counsel wants to infer, 'that in half-filled wagons, the negligence lay in not spreading the packages on the floor after their transhipment at Arokonam. The packages should not have been kept one above the other. If they were spread on the floor, then the packages could not have crushed. They further got crushed because the railways failed to secure in a proper manner. This resulted in their shifting during transit." The observations in Mahadeolal's case (supra) do not extend to the length of allowing for speculation in matters requiring proof. After summoning the relevant records from the railways, the plaintiff should have brought out these circumstances by cross-examining their witnesses. That may have justified the Court in drawing an inference of negligence or misconduct. 11. The learned counsel then urges that the burden is discharged from the condition of the good at destination. In my judgment, this contention cannot be accepted. When the goods are tendered for carriage at 'owner's risk', it would be erroneous to suggest that under section 74-C (3) of the Act, the loss or damages to goods is prima facie proof of negligence. See M/s Sarjug Prasad Ishwar Purbey v. Union of India [ AIR 1960 Pat. 571 ]; and Union of India v. Eastern Match Co., Tirumangalam [ AIR 1964 AP 172 ]. The maxim res ipsa loquitur cannot be applied in such a case. The Court' cannot, therefore, infer 'negligence' from the conditions of things as disclosed. There must be reasonable evidence of negligence. See, The Governor General in Council v. Jamuna Das Agarwala [AIR 1949 Pat. 119]. 13. The plaintiff must also fail for another reason. The maxim res ipsa loquitur cannot be applied in such a case. The Court' cannot, therefore, infer 'negligence' from the conditions of things as disclosed. There must be reasonable evidence of negligence. See, The Governor General in Council v. Jamuna Das Agarwala [AIR 1949 Pat. 119]. 13. The plaintiff must also fail for another reason. The Court below has held that the failure of the plaintiff to comply with the requirements of Rule 33 of the General Rules of the Goods Tariff, Chapter I, issued by the Indian Railway Conference Association, disentitles him to claim any damages. The Rule is in the following terms:- "33- Notice of loss or damage-The Railway shall not be responsible for any damage to, or loss of, property unless notice of such is given in writing to the station Master before delivery and removal from the Railways' premises of the property or of the package or packages, the contents or parts of the contents of which are alleged by the claimant to be damaged or lost, or of the rest of the consignment, a portion of which is alleged by the claimant to be lost (as the case may be)." Placing reliance on Sohanlal Munnalal v. East Indian Railway [AIR 1922 All. 9 (FB)], and Chhogalal and another v. Secretary of State [19 MPLC 257=29 NLR 333], the learned counsel for the appellant urges that if a Rule like that relied upon, is put forward as limiting liability imposed upon Railway by section 72 of the Railways Act, then the Rule is inconsistent with the provisions of the Act and is of no effect. In other words, the argument is that Rule 33 is ultra vires the Central Government being in excess of their rule-making powers under section 47. These authorities are really not in point because they dealt with rules which were inconsistent with the Act and not with Rule 33 with which we are concerned. Rule 33 prescribes the manner of making a claim in order that there is some kind of check against fraudulent claim,. The making of Rule 33 is by way of caution that no claim for damages would be entertained unless there is notice to the delivering officer as to the condition in which the consignment is delivered. See S.S. Light Railway v. Deokinandan and another [ 1960 JLJ 985 =ILR 1958 MP 842= AIR 1959 MP 276 ]. The making of Rule 33 is by way of caution that no claim for damages would be entertained unless there is notice to the delivering officer as to the condition in which the consignment is delivered. See S.S. Light Railway v. Deokinandan and another [ 1960 JLJ 985 =ILR 1958 MP 842= AIR 1959 MP 276 ]. The Rule is perfectly valid. 13. Lastly, the Court below has rightly held that the extent of damages, if any, has not been proved. It has already been noticed that the word "slightly crushed", used in the Certificates of damages are not indicative of the extent of actual loss. Perhaps, it was not in the plaintiff's interest to have the extent of damages measured by actual assessment of the percentage of the loss. Whatever be the reason the extent of actual loss is not known. The allegation of destruction of the goods on 16th October 1959 i.e., just a day prior to the issue of notices under section 77 of the Indian Railways Act, appears to be make belief. It is rather strange that no notice was given either to the railways or to any other authority intimating that the goods were to be destroyed having become useless and unmarketable. It is significant that the damaged packages were not preserved in the condition in which they were received to enable the Court to ascertain the extent of actual loss. Nor is there any valuer's report on record showing the measure of damages. There is also no reliable evidence which establishes the goods were really destroyed. The plaintiff has with-held his books of account. That naturally gives rise to an inference that the books, if produced, would have gone against him. It is suggested that there are no entries in the books showing destruction of the goods. If that is so, the absence of entries would not necessarily lead to an inference that the goods had not been disposed of in the open market. For all these reasons, the plaintiff must fail because the alleged damages cannot be measured. 14. The result is that the appeal fails and is dismissed. The costs throughout shall be borne by the parties as incurred.