JUDGMENT B.M. Lal, J. 1. This is defendant's appeal under Section 96 of the Civil Procedure Code challenging the judgment and decree dated 30.9.1985 passed by Mr. K.K. Saxena, IT Addl. Distt. Judge, Bilaspur, in Civil Suit No. 3-B of 1984, between the parties Mahalaxmi Oil and Dal Mill v. Union of India. 2. Respondent M/s. Mahalaxmi Oil and Dal Mill brought an action against the appellant for realising Rs. 21,000/- towards damages and interest at the rate of 12 per cent per annum from the date of filing the suit till realisation. 3. In short the case of the respondent/ plaintiff was that on 17.11.1977 M/s. Lalchand Gangasahai booked a consignment of 423 kattas jaggery weighing about 211 quintals 50 kg., each katta about 50 kg., from Tataganj, Meerut City on the Northern Railways to Akaltara railway station, Tehsil Janjgir, Distt. Bilaspur. This Akaltara railway station is situated on the South-Eastern Railway. The said consignment has been booked by M/s. Lalchand Gangasahai at the instance of the plaintiff and as such consignor M/s. Lalchand Gangasahai, while booking the said consignment for Akaltara, despatched the railway receipt to the plaintiff. As such the plaintiff became the owner of the said goods and was also entitled to take delivery of the consignment after its arrival at the destination, i.e., Akaltara. 4. The consignment was full wagon load and in the ordinary course of transit, the said consignment ought to have reached and delivered at Akaltara within 15 days from the date of booking but the consignment remained undelivered till 28.12.1977. In between, the plaintiff had to make lot of correspondence with the railway authorities, i.e., Chief Commercial Superintendent, S.E. Railway, Calcutta. This undue delay in delivering the consignment has caused loss to the plaintiff and therefore on account of delayed delivery, the market rate of jaggery went down causing loss to the plaintiff. It is averred that the rate of jaggery at Akaltara in Bilaspur District was Rs. 165/- per quintal on or about 2.12.1977. But thereafter the rate went down to Rs. 150/-per quintal and, therefore, the loss on account of fall in the rate is Rs. 15/- per quintal. As such the total loss was worked out at Rs. 34,897.50. It is submitted that the consignment had been loaded in closed wagon and on account of heat and rains during the period, there was possibility of deterioration in quality. 150/-per quintal and, therefore, the loss on account of fall in the rate is Rs. 15/- per quintal. As such the total loss was worked out at Rs. 34,897.50. It is submitted that the consignment had been loaded in closed wagon and on account of heat and rains during the period, there was possibility of deterioration in quality. There was also possibility of the jaggery getting melted and coming out of the bags and, therefore, consignment was entrusted for carriage at railway's risk. However, the consignment was received in a deteriorated condition on 17.3.1978. Out of the consignment 195 bags of jaggery had been damaged by weather and the contents had melted and melted jaggery was coming out from the bags, with the result some of the kattas were practically half in weight. 5. At the time of taking delivery on 17.3.1978 the shortage and deterioration of jaggery was pointed out to the employees of the appellant who made a note in the railway register maintained by the Railways for recording risk-note and the employee of the Railways who gave the delivery of the consignment on 17.3.1978 examined the same and found that the said jaggery was in deteriorated condition and was also short in weight. Therefore, the employees of the Railways assessed the damage at 20 per cent out of the total contents of the bags, i.e., all kattas of jaggery. The rest 79 kattas of jaggery on weighing were found only 39 1/2 quintals. 6. Therefore, on account of late delivery of the consignment, plaintiffs capital was locked for a period of 2 months and according to him he could not do other business for want of the said capital and had to suffer damages on account of interest for the period of 3 1/2 months. He further submitted that the bill amount which was paid to M/s. Lalchand Gangasahai was Rs. 24,334/-, interest on this amount at the rate of 18 per cent at the current rate of Akaltara comes to Rs. 1,252.29. Therefore, the claim was set up against the Railways for late delivery of the consignment and damage caused to it as stated aforesaid. He also contended that the said jaggery, which was purchased at the rate of Rs. 160/- per quintal, could hardly be sold for Rs. 80/- per quintal and as such he suffered loss at the rate of Rs. He also contended that the said jaggery, which was purchased at the rate of Rs. 160/- per quintal, could hardly be sold for Rs. 80/- per quintal and as such he suffered loss at the rate of Rs. 80/- per quintal and thus he calculated the loss at Rs. 13,642/-. He further submitted that on account of deterioration in quality he also claimed damages and as per plaint averments he worked out total damages to Rs. 21,449.29. But he filed the suit for Rs. 21,000/- only. 7. Accordingly notice under Section 78-B and Section 80 of the Indian Railways Act was served to the appellant but of no avail and, therefore, a suit was filed. 8. The Railways while filing the written statement emerged with a plea that for any loss caused to the plaintiff, Railways is not responsible and there was no delay in delivering the consignment, as usually it takes 3 months from Meerut to Akaltara. All other averments have been denied and it is submitted that suit as framed and filed is not maintainable and deserves to be dismissed. 9. The trial court, however, in all framed 9 issues on the basis of the pleadings of the respective parties and passed a decree for an amount of Rs. 21,000/- with interest thereon at the rate of 12 per cent per annum from 15.7.1980 to the date of realisation of the said sum with costs, against which this appeal has been filed by the Railways. 10. Learned counsel contended that in view of provisions of Section 78 (d) of the Indian Railways Act, 1890, the railway administration is not responsible for any indirect or consequential damages for loss to a particular market price. It is further contended that the trial court has not correctly appreciated the meaning of the word 'deterioration' in accordance with the provisions of Section 76 of the Act, which according to the Railways does not mean the loss of market price. 11. On behalf of the plaintiff, Satyanarayan Agarwal has entered into the witness-box and categorically stated that is how the delayed delivery of jaggery was made. Vide Exhs. D-1 and D-2 demonstrate that the railway authorities have acknowledged the deterioration of jaggery and also short delivery and Railways has not cared to examine any of its employees to controvert or rebut the averments made in the plaint. Vide Exhs. D-1 and D-2 demonstrate that the railway authorities have acknowledged the deterioration of jaggery and also short delivery and Railways has not cared to examine any of its employees to controvert or rebut the averments made in the plaint. This being so, the case of the plaintiff to the extent of deterioration and short supply is deemed to have been admitted by the Railways. Now the question would be how far provisions of Section 78-A of the Indian Railways Act shift the burden on the plaintiff to prove his case. 12. No doubt, burden of proof is on the plaintiff to establish that loss occurred during transit of wagon and in this respect plaintiff has to prove only the condition of consignment at the time of taking delivery and further the value of goods booked and the actual loss caused to the plaintiff. 13. In the instant case, the loss and the consignment delivered in deteriorated condition has been acknowledged by the railway officials and to prove the total loss sustained, the plaintiff examined Satyanarayan Agarwal as PW 1 who stated the prevalent rate of jaggery at the time of booking at Akaltara as Rs. 165/- per quintal and at the time of taking delivery as Rs. 150/- per quintal. He has also stated that the consignment was unduly delayed for more than 3 months. Had it been delivered within reasonable period in a perfect condition, the plaintiff would not have suffered the loss. The statement of PW 1 Satyanarayan Agarwal has not been controverted by the appellant Railways. Therefore, the amended provision of Section 73 of the Railways Act comes to the rescue of the plaintiff, which has changed the character of liability of the Railways from that of a bailee into an insurer. 14. Besides this, the responsibility of the Railways under the provisions of Sections 72 and 73 of the Act is subject to the provisions of Section 151 of the Contract Act which postulate that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, in similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. 15. Loss of goods in transit took place due to the negligence of the Railways or its employees. 15. Loss of goods in transit took place due to the negligence of the Railways or its employees. Consequently, the railway administration is liable to make good such loss to the bailor. If the Railways has not applied reasonable care and foresight, it cannot escape the liability for compensating the damages caused to the consignment and hence the burden is on the Railways to prove that reasonable care and foresight had been applied in transit. The same has not been done in the instant case by the Railways. 16. Learned counsel contended that meaning of word 'deterioration' occurring in Section 76 of Railways Act does not mean loss of market price. No doubt, the word 'deterioration' occurring in Section 76 refers to physical and actual deterioration of goods and as such the railway administration in all deteriorations shall not be responsible for any direct or consequential damages for loss of market price. But in the case in hand, the entire damages have not been claimed on the basis of deterioration of jaggery alone, but also on account of inordinately delayed delivery and as such the railway administration cannot escape the liability. 17. If the claim of the plaintiff had been based on deterioration of jaggery alone, the contention so raised by the appellant could sustain. But the damages have been claimed on the basis of delayed delivery as well, therefore, submission so made on behalf of the Railways has no force. 18. From the discussion aforesaid, this appeal fails and is therefore dismissed with costs. Counsel's fee according to schedule, if certified.