JUDGMENT - V.S. DESHPANDE, J.:---The plaintiffs suit against the Union of India representing the Central Railway Administration for damages due to the loss of goods in transit, has been dismissed by the Additional Judge, Small Causes Court of Poona, on 25th July, 1975. The plaintiff challenged the validity of this decree in this revision application under section 25 of the Provincial Small Causes Court Act. The plaintiff is a registered partnership firm. It was a consignee in regard to 186 bags of Bajra despatched by its seller from Gulbarga. The goods appear to have been despatched on 10-3-1973 and received at Poona on 11-3-1973. When open delivery was taken the goods were found short by 866 kgs. because of the bags being tampered with. A note to this effect was endorsed by the Railway Administration on the delivery note. In due course notices were served under the provisions of the Indian Railways Act as also section 80 of the Code of Civil Procedure and then a suit was instituted for damages. The claim of the plaintiff was based mainly on the allegation that the bags were pilfered in transit due to the negligence of the Railway Administration. In reply to this claim of the plaintiff, the defendant did not dispute the particulars of the consignment, viz. quantum and quality of the Bajra despatched from Gulbarga station as also the contents of the railway receipt relied on. Their defence was that they were not guilty of any negligence and seals were found in tact as endorsed in the same delivery note. The plaintiffs partner examined himself in support of his case, while no witness was examined on behalf of the defendant. The learned Judge dismissed the suit mainly on the ground that no seals being found intact no negligence can be attributed to the Railway Administration. He also observed that the railway receipt was not produced by the defendant and no evidence was led by the plaintiff of the person who had loaded the goods of Bajra. He also further found that the claim at Rs. 1.60 per kg. was not borne out by evidence, even if the plaintiff were found entitled to damages, it could have been granted damages at the rate of Rs. 1.53 per kg. on the evidence led by it. 2. Mr. He also further found that the claim at Rs. 1.60 per kg. was not borne out by evidence, even if the plaintiff were found entitled to damages, it could have been granted damages at the rate of Rs. 1.53 per kg. on the evidence led by it. 2. Mr. Patankar, the learned Advocate appearing for the plaintiff, contends that the trial Judge entirely misdirected himself by assuming that the burden to prove the negligence is on the plaintiff. He strongly relied on the provisions of section 73 of the Indian Railways Act which were introduced in the Act under the amendments introduced in the year 1961 with a view to make the Railway Administration liable for the goods as a common carrier, burden being entirely thrown on it to show that it could in no way be responsible for the loss of the goods. The contention of Mr. Patankar appears to be well founded. Unfortunately the respondent-Union of India has not chosen to enter appearance in spite of service of summons thereon and I could not have the benefit of hearing their side. I have, therefore, to dispose of the matter in the light of the contentions advanced before me by Mr. Patankar. 3. The contention of Mr. Patankar appears to be well founded. Unfortunately the respondent-Union of India has not chosen to enter appearance in spite of service of summons thereon and I could not have the benefit of hearing their side. I have, therefore, to dispose of the matter in the light of the contentions advanced before me by Mr. Patankar. 3. Now, section 73 reads as follows :--- "Save as otherwise provided in this Act, a railway administration 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 the following, namely--- (a) Act of God; (b) Act of war; (c) Act of public enemies; (d) Arrest, restraint or seizure under legal process; (e) Orders or restrictions imposed by the Central Government or a State Government or by any Officer or authority subordinate to the Central Government or a State Government authorised in this behalf; (f) Act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee; (g) Natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i) Fire, explosion or any unforeseen risk; Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods." 4. It has to be noted that though it was the case of the Railway Administration that the goods were despatched under L conditions, the trial Judge found that no evidence was led by the administration to support this part of its case. In fact, no evidence whatsoever was sought to be led on behalf of the Railway Administration. It chose entirely to rely on the circumstances that seals were found in tact when the delivery was given. Admittedly, it is not the case of the goods despatched at the risk of the consignor. In fact, no evidence whatsoever was sought to be led on behalf of the Railway Administration. It chose entirely to rely on the circumstances that seals were found in tact when the delivery was given. Admittedly, it is not the case of the goods despatched at the risk of the consignor. I have not been able to see any other provision in the Act which could detract from the responsibility for such a loss thereon by section 73 on the Railway Administration for the non-delivery of the goods in transit delivered to it for carrying by the Railway. It is not the case of the Railway Administration that such loss was caused by any of the contingencies enumerated under Clauses (a) to (i) of the above quoted section 73, not to speak of any attempt made by the Railway, Administration to support any such plea. The learned trial Judge has obviously missed these provisions and the purpose for which the same have been introduced in the year 1973. 5. True it is that the plaintiff did not produce Railway Receipt. Still no questions were asked as to why the Railway Receipt was not produced. Secondly, if anything were to turn thereon, the defendant should have called upon the plaintiff to produce the same. In fact, the contents of the Railway Receipt and the particulars of the consignment were in terms admitted by the Railway Administration. The same can be true about the grievance of the trial Judge that no person present at the time of loading of the goods was examined by the plaintiff. It was obviously not necessary for the plaintiff to produce him, when particulars of the consignment were in terms admitted by the Railway Administration. It is not the defendants case that so many goods as mentioned in the Railway, Receipt were not delivered for loading in the wagon. In this view of the matter, the judgment of the trial Court is liable to be set aside. 6. It is true, the plaintiff has claimed damages at the rate of Rs. 1.60 per kg. but the trial Court has found on evidence led by the plaintiff himself that he is not entitled to the damages at the higher rate than Rs. 1.53 kg. I accordingly decree the suit for the loss of 866 kgs. at the rate of Rs. 1.53 per kg. which amount comes to Rs. 1.60 per kg. but the trial Court has found on evidence led by the plaintiff himself that he is not entitled to the damages at the higher rate than Rs. 1.53 kg. I accordingly decree the suit for the loss of 866 kgs. at the rate of Rs. 1.53 per kg. which amount comes to Rs. 1,324.88. The plaintiff is also entitled to the notice charges of Rs. 15/-. However, no interest on the damages can be claimable till the damages are ascertained and quantitied. The plaintiff will get interest at 6 per cent per annum from the date of the suit till recovery of the amount from the Railway Administration. The plaintiff will also get its costs. 7. Rule is thus made absolute with costs. -----