R. R. MISRA, J. ( 1 ) THIS is a defendants second appeal arising out of a suit for realisation of Rs. 10,306/- along with interest claimed as damages against the Union of India through the General Manager, North Eastern Railway, Gorakhpur. ( 2 ) THE case of the plaintiff-respondents was that consignment consisting of 245 bags of onion was boated on 3rd June, 1978 at Sahatwar Railway Station of North Western Railway. The consignment was to be delivered at Silchar to the Arhatia of the plaintiffs. Admittedly plaintiff No. 1 is the owner of the consignment and the plaintiff No. 2 is his servant. According to the plaint allegations the consignment ought to have reached Silchar within ten days but factually the same reached on 29th June, 1978 in a rotten condition. Consequently assessment delivery was taken. It was found that 233 bags of onion were completely rotten and only 12 bags were partially rotten. It was alleged that the loss had occurred due to the negligence of the servants of the defendant-appellant. The defendant in their written statement admitted the consignment. It was alleged that the consignment was booked at owners risk rate. The defence was that the consignment itself was not of good quality and that is why it perished during transit. Negligence in handling the consignment was denied. After framing the issues, the trial court dismissed the suit. Hence the plaintiff-respondents had filed an appeal before the lower appellate court which has been allowed by the impugned judgement. It has been held by the lower appellate court that the defendant-appellant had not properly explained the handling of the consignment between Chhapra and Kathihar. It was further held that since the defendant had failed to disclose the facts as to how the goods were handled in transit, adverse inference against the defendant was liable to be drawn. In the result the appeal was allowed and the suit of the plaintiff-respondents was decreed by the lower appellate court. ( 3 ) I have heard Sri Sudhir Narain Agrawala, learned counsel appearing for the Union of India. During the course of his submission, he has strongly relied upon a single Judge decision of the Calcutta High Court in the case of Union of India v. Mamchand Agarwalia, AIR 1967 Cal 133 and Sobharam Jokhiram v. Union of India 1970 Pat 182. During the course of his submission, he has strongly relied upon a single Judge decision of the Calcutta High Court in the case of Union of India v. Mamchand Agarwalia, AIR 1967 Cal 133 and Sobharam Jokhiram v. Union of India 1970 Pat 182. Relying on the aforesaid two authorities, it has been strenuously contended by the learned counsel appearing for the defendant-appellant that since in the present case the goods were sent at the owners risk rate the case is covered by the provisions of S. 74 of the Railways Act (hereinafter referred to as the Act) and that in view of the aforesaid decision of the Calcutta High Court which has been followed by the Patna High Court in the said case, it is clear that the operation of S. 76 of the Act is controlled by S. 73 of the said Act. According to the learned counsel since S. 73 is excluded by S. 74, therefore, the proper provision applicable in the present case will be S. 74 and not S. 76 of the Act. ( 4 ) TO appreciate the above contention, it is necessary to reproduce the relevant provisions of Ss. 73, 74 and 76 of the Act. "73. General responsibility of a railway administration as a carrier of animals and goods. 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) to (e ). . . . . . . . . . . . . . . . . . . . . . . . . . (f) act or omission or negligence of the consigner or the consignee or the agent or servant of the consigner or the consignee ; (g ). . Provided that even where such loss, destruction, damage, deterioration or nondelivery 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. ""74. ""74. Responsibility of a railway administration for animals or goods carried at owners risk rate.- (1) When any animals or good are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate) or in the alternative at a special reduced rate (in this Act referred to as the owners risk rate), the animals or goods shall be deemed to have been tendered to be carried at owners risk rate, unless the sender or his agent elects in writing to pay the railway risk rate. (2) Where the sender or his agent elects in writing to pay the railway risk rate under Sub-Section (1), the railway administration shall issue a certificate to the consigner to that effect. (3) When any animals or goods are deemed to have been tendered to be carried, or are carried, at the owners risk rate, then, notwithstanding anything contained in S. 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery, in transit, of such animals or goods from whatever cause arising, except upon proof that such loss destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants. "" (76 ). Responsibility for delay or detention in transit.- A railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servant. " ( 5 ) IT is noteworthy that the provisions of S. 73 were substituted in the year 1961. After substitution, S. 73 has changed the character of the liability of the railways from that of a bailee into that of the insurer. So long as there is a failure to use reasonable care and foresight on the part of the railways, the railways cannot escape their liability by pointing out that such loss, damage or deterioration was the result of the causes enumerated in S. 73 of the Act. So long as there is a failure to use reasonable care and foresight on the part of the railways, the railways cannot escape their liability by pointing out that such loss, damage or deterioration was the result of the causes enumerated in S. 73 of the Act. In my opinion, Section 74 (3) is an exception to S. 73 of the Act. For the purposes of claiming damages of the deteriorated goods the plaintiff has to prove that the deterioration of the goods is caused by delay in the carriage of the goods. Delay or detention in transit is per se indicative of misconduct or negligence but it is not conclusive proof of negligence. Section 76 of the Act, therefore, makes an initial presumption of misconduct or negligence of the railway authorities in the case of delay or detention. If the railway administration does not lead any evidence to prove that loss or deterioration etc. was not due to their misconduct or negligence, S. 76 of the Act takes care of such a situation and relieves the plaintiffs of their burden under S. 74 (3 ). Therefore if the consigner proves that the destruction or deterioration was caused by delay or detention in transit then the burden shifts on the railway authorities to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or its servants. ( 6 ) THE result of the above discussion, therefore, is that Section 76 of the Act is in the nature of a proviso to S. 74 (3) of the Act which is a general provision absolving the railway administration of its responsibility for the loss or deterioration if the goods are sent at owners risk rate. In my opinion, there is nothing in S. 74 (3) or S. 76 to show that the latter is in any way controlled by the former Section. Therefore, S. 74 does not exclude the operation of S. 76 of the Act where the goods are booked at owners risk. If the intention of the legislature had been otherwise it would have added in S. 74 (3) the words "or S. 76" after the words "section 73" which would then have read as "anything contained in S. 73 or Section 76. If the intention of the legislature had been otherwise it would have added in S. 74 (3) the words "or S. 76" after the words "section 73" which would then have read as "anything contained in S. 73 or Section 76. " In my opinion, in case the argument of the learned counsel for the defendant-appellant is accepted it will do violence to the Section, which will be wholly unjustified. Therefore by harmoniously construing the provisions contained in S. 74 (3) and S. 76 of the Act, I hold that the provisions of S. 76 of the Act will also apply when the goods are booked at the owners risk rate. The reason of the rule is that the owners risk does not extend to loss or deterioration etc. being caused by misconduct or negligence of the railway administration itself or by any of its servants. Therefore, under S. 74 (3) a general rule has been provided that in the case of booking at owners risk rate, the risk is of the owner and not of the railway. But this general provision has been rightly saddled with the proviso to the effect that the railway will be liable if such negligence or misconduct is proved. To summarise S. 76 carves out an exception to S. 74 (3) in cases of loss, deterioration etc. being caused by delay or detention of the goods. This is irrespective of whether the goods are booked at the railway risk or the owners risk rate. For this conclusion of mine, I find support from the decisions in Union of India v. Shankar Lal, AIR 1972 Madh Pra 201, A. Rafiq Ahmed and Co. v. Union of India, AIR 1972 Mad 454 and Union of India v. Ram Prasad Prahladrai, AIR 1982 Raj 253 . All the aforesaid three High Courts have taken a consistent view of the above provisions. In this view of the situation, in opinion, the view taken by the Calcutta High Court in the case of Union of India v. Mamchand Agarwala, ( AIR 1967 Cal 133 ) (supra) and followed by the Patna High Court in the case of Sobharam Jokhiram v. Union of India, ( AIR 1970 Pat 182 ) (supra) is not correct. In this view of the situation, in opinion, the view taken by the Calcutta High Court in the case of Union of India v. Mamchand Agarwala, ( AIR 1967 Cal 133 ) (supra) and followed by the Patna High Court in the case of Sobharam Jokhiram v. Union of India, ( AIR 1970 Pat 182 ) (supra) is not correct. ( 7 ) APPLYING the above tests to the facts of the present case, I find that the lower appellate court has, on an appraisal of evidence, recorded a definite finding of fact that the consignment was not properly handled by the railways and that there was such a negligence on the part of the railway administration as to render it liable for damages. ( 8 ) LEARNED counsel for the defendant-appellant also tried to assail the findings of fact recorded by the lower appellate court but after hearing him I find that there is no error of law involved in the aforesaid findings recorded by the lower appellate court. ( 9 ) HAVING thus given my anxious consideration to the findings recorded in the present case and the law applicable thereto, I find that there is no merit in this second appeal and the same is accordingly dismissed summarily. Appeal dismissed. .