Judgment :- Srinivasan, J. The defendant, who has suffered a decree for a sum of Rs.92,628.76 in the trial court, has preferred this appeal. The defendant is Union of India, owning the Southern Railway, represented by its General Manager. The respondents filed the suit O.S.No.153 of 1980 making the following claim. Twelve consignments, each consisting of 3 Nos. M.F.1035 Tractor, were entrusted to the railway administration between April and December, 1977 at Madras by M/s. Tractors and Farm Equipments Limited, Madras (TAFE Ltd.), the consignor for safe carriage by rail to Go-rakpur. The 1st respondent/1st plaintiff is the consignee. The consignments were delivered to the 1st plaintiff in a damaged condition resulting in damage and shortage to each consignment. The 1st plaintiff has suffered a loss of Rs.92,628.76 in all. The details are set out in the plaint. On demand, the railway effected open delivery noting the damage and shortage at the time of delivery. The loss occurred only due to the negligence and or misconduct on the part of the employees of the railway administration and the defendant is, therefore, liable in law to make good the loss suffered by the 1st plaintiff. In spite of notice under Sec.80, C.P.C., the defendant has failed to comply with the demand. The 2nd plaintiff is insurer of the consignments and it has settled the claim with the 1st plaintiff. Thus, the 2nd plaintiff has subrogated to the rights of the 1st plaintiff. The suit is, however, filed by both the plaintiffs in order to avoid any technical defence which may be taken by the defendant. Thus the plaintiffs have claimed a decree for a sum of Rs.92,628.76 with interest at 6% per annum from the date of plaint. 2. In the written statement, the defendant raised the following pleas. The suit is not maintainable. It is denied that the 1st plaintiff is a firm registered under the provisions of law and the plaintiffs should strictly prove the same. Right and title of the 2nd plaintiff is denied. M/s.TAFE Ltd., consigned three tractors under different invoice numbers and the fittings were not packed separately as expressly declared by the consignor in the Forwarding Note executed by it. The following remark is. made in the Forwarding Note: “Detachable parts not packed separately.” The consignor, who is a party to contract, accepted the railway receipt with the above remark without demur. The following remark is. made in the Forwarding Note: “Detachable parts not packed separately.” The consignor, who is a party to contract, accepted the railway receipt with the above remark without demur. The tractors were taken with all care and caution in the same wagon to the destination without any delay or handing by the railway staff. At the destination they were unloaded by the consignee. There was no negligence or misconduct on the part of the railway administration. The consignor, who is a party to the contract, can alone maintain the suit and it is not open to the plaintiffs to file the suit. Valid claims were not made under Sec.78(b) read with Sec. 140 of the Indian Railways Act. Notice under Sec.80, C.P.C. is not valid. The suit claim is without any basis.highly exaggerated the inadmissible. Hence, the suit should be dismissed. 3. The plaintiffs filed as many as 72 documents and examined two witnesses. The first witness is the employee of the Insurance Company, the 2nd plaintiff. The second witness is a supervisor in the consignor company, viz. TAFE Ltd. The defendant filed 24 documents comprising of forward notes and railway receipts. The defendant has not examined any witness. The trial court found all issues in favour of the plaintiffs and negatived the contentions of the defendant. Consequently, a decree was granted to the plaintiffs by the trial court after deducting a sum of Rs.600 from the claim made in the plaint. 4. In this appeal, learned counsel for the appellant has raised seven contentions. We will deal with them in seriatim. The first contention is that the 1st plaintiff has not proved that it is a registered partnership firm and that the person who signed the plaint is a partner. Whose name has been entered in the register. Reliance is placed on the judgments of the Nagpur High Court in Kapur-chand Bhagaji Firm v. Laxman Trimbak and others, A.I.R. 1952 Nag. 57 and Delhi High Court in M/s.Shankar Housing Corporation v. Smt.Mohan Devi and others, A.I.R. 1978 Del. 255, for the purpose of contending that the person who is filing the suit must be shown as a partner in the register of firms. There is no merit in this contention. Ex.A-72 is the photostat copy of the registration certificate of the 1st plaintiff firm. 255, for the purpose of contending that the person who is filing the suit must be shown as a partner in the register of firms. There is no merit in this contention. Ex.A-72 is the photostat copy of the registration certificate of the 1st plaintiff firm. That proves that the 1st plaintiff firm has been registered and the person who has signed the plaint on behalf of the 1st plaintiff firm is a partner thereof. The plaint has been signed by Sri Amar Pal Singh. The said person is shown as a partner of the 1st plaintiff firm in Ex.A-72. Hence the contention of the appellant in this regard is rejected. 5. The second contention is that the suit can be maintained only by the consign or as the contract is only with the consignor and the consignee cannot maintain the suit. In paragraph 8 of the written statement it is stated that the consignor who was a party to the contract of carriage alone is entitled to file the suit against the defendant for recovery of damages, if any. It is contended that there is no evidence at all before the court to show that the consignor has become the owner of the goods and that it could maintain the suit on the basis of such ownership. Learned counsel submits that the claim bills (Exs.A-48 to A-59) do not make out a case of ownership being with the consignee, the 1st plaintiff. Our attention is drawn to the judgment of the Supreme Court in The Union of India v. West Punjab Factories Limited, A.I.R. 1966 S.C. 395: (1966)1 S.C.W.R. 246: (1966)1 S.C.J. 350: 1966 S.C.D. 988: (1966)2 An.L.T. 269: (1966)1 S.C.R. 580 . The Supreme Court said in that case, "the mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person." In the present case, Ex.A-1, Ex.A-3, Ex.A-5, Ex.A-7, Ex.A-9, Ex.A-11, Ex.A-13, Ex.A-15, Ex.A-17, Ex.A-19, Ex. A-21 and Ex. A-23 are invoices issued by the consignor to the 1st plaintiff. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person." In the present case, Ex.A-1, Ex.A-3, Ex.A-5, Ex.A-7, Ex.A-9, Ex.A-11, Ex.A-13, Ex.A-15, Ex.A-17, Ex.A-19, Ex. A-21 and Ex. A-23 are invoices issued by the consignor to the 1st plaintiff. They contain the endorsement that the goods are sold and on the top of the each invoice, the following expression is found. "Sold to Union Tractors, Gorakpur." That is more than sufficient to show that the goods have been sold and the title has passed to the consignee, the 1st plaintiff. Learned counsel for the respondents invites our attention to Sec.57 of the Indian Railways Act, 1890. Under that section, where any goods or sale proceeds in the possession of a railway administration are claimed by two or more persons, or the ticket or receipt given for the goods is not forthcoming, the railway administration may withhold delivery of the goods or sale proceeds until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway administration against the claims of any other person with respect to the goods or sale-proceeds. Learned counsel submits that all the railway receipts have been produced in the present case by the 1st plaintiff. Hence, the railway administration is bound to deliver goods to the 1st plaintiff. As a matter of fact, the goods were delivered to the 1st plaintiff under open delivery certificates. Hence, there is no merit in the contention that the title in the goods has not passed to the consignee, the 1st plaintiff. 6. There is also no substance in the contention that it is only the contracting party who can maintain the suit. If a suit is based on the contract, then it has to be filed by the person who entered into the contract. But a suit can be based on the tort also. In the case of damage to or loss of goods, there can be two kinds of suits,one based on contract and the other on tort. In Kalasami Nadar v. Ponnuswami Mudaliar and others ,A.I.R. 1962 Mad. 44: 74 L.W. 495:1.L.R. 1961 Mad. But a suit can be based on the tort also. In the case of damage to or loss of goods, there can be two kinds of suits,one based on contract and the other on tort. In Kalasami Nadar v. Ponnuswami Mudaliar and others ,A.I.R. 1962 Mad. 44: 74 L.W. 495:1.L.R. 1961 Mad. 1091, a Division Bench of this Court said, "the claim is made by the consignor himself, who entered into a contract with the appellant for the carriage of the goods from Koilpatti to Coimbatore which having regard to the nature of the business of the appellant implied a safe carriage of the goods. A breach of that obligation would be a breach of contract. It may be, that by virtue of the public employment of the appellant and the nature of his obligations, he would be liable in tort. That would only mean that so far as the consignor is concerned, he can at his option sue on contract or on tort. But where the claim is made by the consignee, the position might be different as he not being a party to the contract of carriage made by the consignor, will not be able to enforce a contractual obligation but can only sue on tort." In the present case, we have no doubt that the plaint is based on tort. The 1st plaintiff having obtained the ownership of the goods is entitled to sue on tort for the damage caused to it as against the defendant. Consequently, the suit filed by the plaintiffs herein is maintainable. 7. The third contention is that the forward notices contain an endorsement that detachable parts are not packed separately. It is seen from Ex.B-1, Ex.B-3, Ex.B-9etc. that such endorsement is made on each forward note. The contention is that the goods have been booked at owner’s risk rate. The consignor has not booked the goods at the railway risk rate, but has availed of the concessional rale, i.e. owner’s risk rate. It is therefore contended that as per the Railway Goods Tariff, if such parts are missing, the railway administration is not responsible in cases of goods which are being carried at owner’s risk rate. The goods Tariff No.33, which was in force from 2. 1971, contains relevant rule at page Nos.319 and 320. The article referred to therein is Motor tractors. The goods Tariff No.33, which was in force from 2. 1971, contains relevant rule at page Nos.319 and 320. The article referred to therein is Motor tractors. As per column 1, it includes motor tractors in knocked down condition. The note at the bottom reads thus: "Railways accept no liability for detachable fittings such as rubber mats,spare tyres, lamps, inflators, tools, bells, etc. unless they are securely packed in cases and entered on the railway receipt. Detachable fittings in cases will be carried in the same truck as the motor tractors, no charge being levied provided they form part of the motor tractor or tractors with which they are loaded, and the total weight of detachable fittings and the motor tractor or tractors does not exceed the prescribed minimum weight for charge laid down above." In the Goods Tariff No.35, which was in force from 1st September, 1976, a similar entry is found at page Nos.119 and 200 and there is no difference whatever in the language and hence it is not necessary to repeat the same. However, in the Goods Tariff No.36, which came into force from 1st November, 1980, a change is introduced in the note at page No.203. The note includes batteries, dynamos, cut-outs in addition to rubber mats, spare tyres, lamps, inflators, tools, bells, etc. which were already mentioned in the previous tariffs. In the Goods Tariff No.37, which came into force from 1st July, 1982 the entry is similar to the one found in Goods Tariff No,36. Relying on the goods Tariff Nos.36 and 37 of 1980 and 1982, learned counsel for the appellant contends that dynamos, cut-outs and batteries are also detachable fittings and they were detachable throughout and it is not as if they became detachable only in 1980 for the first time. According to him, the parts which were mentioned in Goods Tariffs of the years 1971 and 1976 should be deemed to include dynamos, cutouts and batteries even though they are not expressly mentioned. It is argued that the items mentioned therein are only illustrative and not exhaustive. Learned counsel contends that the railway administration cannot be made liable for the missing parts, viz. dynamos, cut-outs and batteries. It is argued that the items mentioned therein are only illustrative and not exhaustive. Learned counsel contends that the railway administration cannot be made liable for the missing parts, viz. dynamos, cut-outs and batteries. It is contended by him that the express endorsement made on the forward notes that detachable parts are not packed separately would clearly show that the railway cannot be made liable for loss of such parts. If the consignor wanted the railway administration to be accountable for the loss of such parts, he ought to have packed them separately and got them entered in the railway receipt. In the absence of such entry in the railway receipt, it is not open to the consignor or the consignee to make a claim for the loss of such part. Thus according to him the liability for the loss or damage to such parts is excluded expressly by the contract itself. We are unable to accept this contention. As pointed out already, the goods tariffs, which came into force in 1971 and 1976 did not include batteries, dynamos and cut-outs. For the first time they were included only in 1980 and continued in 1982. We are considering in the present case consignments of 1977 when the tariff of 1976 was in force. When the railway administration has chosen to omit those items in the earlier tariffs, they cannot now contend that they have no liability with regard to those items even for the prior consignments. The liability was excluded if at all only from the year 1980 and later on and not for the earlier periods. 8. It is also rightly pointed out by learned counsel for the respondents that the expression used in the tariff is ‘fittings’ and not ‘parts’. It is argued that in the present case the parts which are missing are essential parts of the tractors, without which a tractor cannot be called a tractor at all. The tractors cannot be used unless those parts are fitted in the tractors. Our attention is also drawn to the definition of the word ‘fittings’ in Webster’s New Twentieth Century Dictionary, 2nd Edition at page No.694, wherein it is defined as "the fixtures, furnishings or decorations of a house, office, automobile, etc." In Black’s Law Dictionary, 6th Edtn. The tractors cannot be used unless those parts are fitted in the tractors. Our attention is also drawn to the definition of the word ‘fittings’ in Webster’s New Twentieth Century Dictionary, 2nd Edition at page No.694, wherein it is defined as "the fixtures, furnishings or decorations of a house, office, automobile, etc." In Black’s Law Dictionary, 6th Edtn. at page 1117 the word ‘part’ is defined as "an integral portion, something essentially belonging to a larger whole; that which together with another or others make up a whole." The tariff has deliberately used the expression ‘fittings’ and not the expression ‘parts’. Hence the contention that dynamos, cut-outs and batteries could be treated as fittings and not as parts for the purpose of the tariff cannot be accepted. That is why the railway administration has chosen to include them specifically in Goods Tariff 1980 as they would not by themselves be treated as fittings. 9. Learned counsel for the respondents relies on the judgments in Jalim Singh Katary v. The Secretary of State of India in Council, I.L.R. 31 Cal. 951: 8 C.W.N. 725 and Rama chandra Natha v. The Great Indian Peninsular Railway, l.L.R. 39 Bom. 485 and contends that the tariff cannot override the statutory provisions of the Railways Act and if there is a provision in the tariff exempting the Railways from liability for loss of such goods, the said provision will be invalid in law. It is not necessary for us to consider that aspect of the matter. On the facts of this case we hold that the pans which are lost in transit cannot be considered to be detachable fittings within the expression used in the tariff. 10. There is no substance in the contention that these parts ought to have been packed separately and kept in the tractors. It is in evidence that the tractors were driven to the railway yard before they were loaded into the wagon. Hence, the tractors were in running condition and the consignor did not want to remove the essential parts thereof. Obviously, the consignor wanted the tractors to be delivered at the place of destination in running condition and hence the tractors were left intact inside the wagon and that will not absolve the railway from their liability to pay for the loss or damage caused. 11. Obviously, the consignor wanted the tractors to be delivered at the place of destination in running condition and hence the tractors were left intact inside the wagon and that will not absolve the railway from their liability to pay for the loss or damage caused. 11. The next contention urged by learned counsel is that onus is on the plaintiffs to prove negligence on the part of the railway administration. According to him, in the present case, there is absolutely no evidence to prove such negligence. It is contended that the open delivery certificates issued by the railways and produced by the plaintiffs will not prove any negligence on the part of the railway. Reliance is placed on Sec.74 of the Railway Act. Sub-sec. (3) of Sec.74 is the relevant provision for this case. It reads thus: “When any goods are deemed to have been tendered to be carried, or are carried, at the owner’s risk rate, then, notwithstanding anything contained in Sec.73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery in transit, of such goods from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or nondelivery was due to negligence or misconduct on the part of the railway administration or of any of its servants.” It is contended that in the present case the burden has not been discharged by the plaintiffs and the railway administration cannot be made liable. 12. Sec.74(3) must be taken along with Sec.73 and Sec.76(f) of the Act for the purpose of construction. Sec.73 is a general section, which speaks about the general responsibility of the railway administration as a carrier of animal and goods. According to the provisions of Sec.73, the railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, arising from any cause except the causes set out therein. Nine causes have been set out in that section and they are the only exceptions. If the loss, destruction, damage, deterioration or nondelivery is occasioned on account of any other cause other than those mentioned in Sec.73, the railway administration will be liable. Nine causes have been set out in that section and they are the only exceptions. If the loss, destruction, damage, deterioration or nondelivery is occasioned on account of any other cause other than those mentioned in Sec.73, the railway administration will be liable. There is, however, a proviso to Sec.73, according to which, even where such loss, destruction, damage, determination or nondelivery is proved to have arisen from any one or more of the aforesaid causes, i.e. causes set out in Sec.73, the railway administration shall not be relieved of its respon sibility for the loss, destruction, damage, deterio ration or non-delivery unless the administration further proves that it has used reasonable fore sight and care in the carriage of the animals or goods. Thus, the burden is thrown on the railway administration to prove that it has exercised reasonable foresight and care in carrying the goods. Sec.74(3) is a sort of exception to Sec.73. In the present case, the goods were carried at owners risk rate and therefore, the burden is on the plaintiffs to prove that there has been negligence or misconduct on the part of the railway administra tion. But Sec.76(f) brings in a further exception to Scc.74. That section reads as follows: “76-F Burden of proving miscounduct in case of non-delivery or pilferage in transit of goods carried at owner’s risk rate.- Notwithstanding anything contained in Sec.74. But Sec.76(f) brings in a further exception to Scc.74. That section reads as follows: “76-F Burden of proving miscounduct in case of non-delivery or pilferage in transit of goods carried at owner’s risk rate.- Notwithstanding anything contained in Sec.74. .(a) Where the whole of a consignment of goods or the whole of any package forming part of a consignment, carried at owner’s risk rate is not delivered to the consignee and such non-delivery is not proved by the railway administration to have been due to fire or to any accident to the train, or .(b) Where, in respect of any consignment of goods or of any package which had been 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 pilfered in transit, the railway administration shall be bound to disclose to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control, but 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.” 13. Under clause (b) of Sec.76-F, if in respect of any consignment of goods or of any package which had been covered or protected in such a way that the covering or protection is not readily, removable by hand, the railway administration shall be bound to disclose to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control in the event of pilferage in transit. In the present case, the evidence shows that the tractors were packed properly with wooden planks and they cannot be removed easily by hand. At the place of destination, the consignment was found in a pilfered and damaged condition. Ex.A-2, Ex.A-4, Ex.A-6, etc. which are open delivery certificates clearly show that the tractors, when they reached the place of destination, were found in pilfered and parts missing condition. Thus, Clause (b) of Sec.76-F would automatically come into play in the present case. At the place of destination, the consignment was found in a pilfered and damaged condition. Ex.A-2, Ex.A-4, Ex.A-6, etc. which are open delivery certificates clearly show that the tractors, when they reached the place of destination, were found in pilfered and parts missing condition. Thus, Clause (b) of Sec.76-F would automatically come into play in the present case. Hence, it is necessary for the railways to disclose to the consignor how the consignment or the package was dealt with throughout the time it was in its possession or control. Learned counsel for the appellant contends that the present suit has been filed only by the consignee and not by the consignor and, therefore, Sec.76-F would not apply. There is no substance in this contention. Sec.76-F does not contemplate the filing of the suit. The question will arise as soon as the packages are found in a pilfered condition. In all such cases the railway administration shall be bound to disclose to the consignor how the consignment or the package was dealt with. 14. Learned counsel refers to the judgment of the Supreme Court in The Union of India v. Mahadeo-lal Prabhu Dayal, A.I.R. 1965 S.C. 1755. It is held in that case that the disclosure before the filing of the suit has to be made only when there is a demand by the consignor. But once the suit is filed, the disclosure has to be made in the written statement or in the evidence. If it is not made then it is for the court to consider whether inference should be drawn from the evidence on record. The judgment of the Supreme Court in Mahadeolal Prabhu Dayal, A.I.R. 1965 S.C. 1755 has been followed in Firm Kesrimal Taranlal Sarda and Co. v. Union of India, A.I.R. 1968 M.P. 199, in which also it is stated that a demand should be made before the disclosure is called for. But both the cases cited supra refer to the disclosure prior to the filing of thesuit. In Mahadeolal case, A.I.R. 1965 S.C. 1955, the Supreme Court has pointed out that once the suit is filed either by the consignor or by the consignee, it is for the railway administration in the first instance to substantiate the disclosure which might have been made before the litigation or which might have been made in the written statement in reply to the plaint. In that case, it is said, “when the railway administration has given its evidence in proof of the disclosure and the plaintiff is not satisfied wish the disclosure made in the evidence, the plaintiff is entitled to ask the court to call upon the railway to fulfil its obligation under the contract and the railway should then have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus, in addition to the evidence that the railway may adduce on its own (and in doing so the railway has necessarily to keep in mind the provisions of Sec.l14 of the Indian Evidence Act) the plaintiff can and should draw the attention of the court if he feels that full disclosure has not been made. In that case he can ask the court to require the railway to make further disclosure and should tell the court what further disclosure he wants. It is then for the court to decide whether the further disclosure desired by the plaintiff should be made by the railway, and if the court decides that such further disclosure should be made the railway has to make such further disclosure as the court orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the court, the railway would be in breach of its contractual obligation of disclosure. It is at this stage, therefore, that the railway can be truly said to be in breach of its contractual obligation of disclosure and that breach arises because the railway failed to disclose mailers which the court on the request of the plaintiff asks it to disclose.” 15. In the present case, the appellant has not chosen to make a disclosure either before the filing of the suit or in the written statement. Nor has it adduced any evidence whatever at the lime of trial to disclose how it dealt with the goods. Hence the initial burden which is on the appellant under Sec.76-F of the Act, has not been discharged’ by the appellant. If the appellant had disclosed how it dealt with the goods then the question would be whether negligence or misconduct could be inferred fairly from such disclosure. Hence the initial burden which is on the appellant under Sec.76-F of the Act, has not been discharged’ by the appellant. If the appellant had disclosed how it dealt with the goods then the question would be whether negligence or misconduct could be inferred fairly from such disclosure. When | the appellant failed to make such disclosure, it goes without saying that inference of negligence or misconduct can be drawn as against the appel lant. 16. The responsibility of the railways is that of a bailee and it has to discharge its duties as a bailee. If it fails to do so, it has to be made liable for the loss of or damage to goods. This question was considered under the provisions of the old Railways Act in Ramakrishna Ramnath Shop v. Union of India, A.I.R 1960 Bom. 344 and the court said, "in cases to which Sec.74-C of the Railways Act is applicable the burden of proving misconduct or negligence is of course on the plaintiff, but as observed by the Privy Council in Dwarkanath v. Rivers Steam Navigation Company, 20 Bom.L.R. 735: A.I.R 1917 P.C. 173 under Sec.106 of the Indian Evidence Act the bailee should call all the material witnesses to prove the facts which were within the special knowledge of the bailee. As observed in Union of India v. Parikh Shankarlal Jethalal ,A.I.R 1956 Nag. 255, the law does not cast any burden upon the Administration to establish positively how the loss or damage occurred, and to prove an absence of negligence on their part. But a duty is cast on the administration to lay all the materials concerning the occurrence before the court; but even so it remains for the consignee to satisfy the court that the true inference from the materials is that the carrier’s servants have not shown due care, skill and nerve. 17. As observed in Asaram Gangaram v. Union of India, New Delhi, A.I.R. 1957 Nag. 59: "It is no doubt true that it is always for the plaintiff to prove that the loss was caused by the neglect or negligence of the railway administration. But when the court has the evidence that the goods had deteriorated while in the custody of the Railway Administration there is a prima facie case of negligence for the railway administration to answer. But when the court has the evidence that the goods had deteriorated while in the custody of the Railway Administration there is a prima facie case of negligence for the railway administration to answer. Under Sec 106 of the Evidence Act, the special facts and circumstances under which the consignment was handled are only known to the railway administration, and therefore, it is for them to place that material before the court for forming its opinion on the question whether it had taken as much care of the goods as is required of them. The railway administration should place material before the court from which it could be inferred how the consignment was dealt with, in order to ascertain whether the railway administration took as much care as is required of them, being bailes of the goods under Secs.151,152 and 161 of the Contract Act." 18. In Union of India v. Radhakisan Ramnath, A.I.R. 1069 Bom. 7. Secs.74(A) and 74 (C) were considered and the Court observed as follows: "The learned counsel then contended that the plaintiff had not discharged the burden of proof laid upon him by Secs.74-A and 74-C. According to him the forwarding note had an endorsement with regard to the nature of the packing and that endorsement showed that it was a gunny bag packing and that the goods were to be transported at the risk of the consignor. There is no evidence in this case even to indicate that the damage in respect of which the plaintiff has sued the railway administration has resulted from a defective packing. As I have already stated before, if the railway administration wants to take protection under Sec.74-A of the act, it must be shown that the goods were liable to deterioration, leakage, wastage or damage in transit as a result of the defective packing. In other words, it is only when the damage complained of has resulted from a defective packing and in addition to this such defective packing is recorded by a sender in the forwarding note then only it is the duty of the plaintiff to show that the railway administration is guilty of negligence or misconduct. But if in a given case the damage is not in any way related to or is not a consequence of the defective packing, obviously the condition necessary for the operation of Sec.74-A is not fulfilled. But if in a given case the damage is not in any way related to or is not a consequence of the defective packing, obviously the condition necessary for the operation of Sec.74-A is not fulfilled. In the instant case, therefore, even assuming that the alleged endorsement in the forwarding note amounts to an admission of the consignor that the packing was a defective packing, it is not the defendant’s case, or it is at least not proved, that but for such a defective packing the goods would not have been damaged. On the other hand the plea of the defendant railway administration is that the water which damaged the consignment must have gone through the door flaps. In this case, the damage is caused by an external agency. It is not the case of the defendants that any defective packing was the cause of the damage caused to the consignment. It is not established in this case that the damage to the consignment was a result of any defective packing and in my view the instant case is not at all governed by the provisions of Sec.74-A of the Act." 19.Sec.74-D of the old Act came up for consideration before the Supreme Court in Union of India v. Brijlal Purshotamdas, A.I.R. 1969 S.C. 817: (1969)1 S.C.R. 910 . The court observed that “Sec.74-D envisages a disclosure in the form of a precise statement of how the consignment was dealt with by the administration followed by evidence at the trial in proof of the statement. The section clearly contemplates that on this matter the administration should submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negligence or misconduct shifts to the consignor.” Sec.74-D of the old Act corresponds to Sec.76-F of the present Act. It is also said that “if the written statement filed by the administration discloses facts which show that in the common course of events the loss would not have happened if proper care had been taken, a presumption of negligence is raised and it is for the administration to rebut it by contrary evidence. In the absence of such evidence the court may draw the inference that the loss was caused by the negligence of the administration.” 20. In the absence of such evidence the court may draw the inference that the loss was caused by the negligence of the administration.” 20. In Firm of T.Muddu Veerappa Sons and K.H. Veeranna Setty v. Union of India and another, the court considered Sec.73 and Sec.77-C of the Act. The relevant part of the judgment reads thus; “To begin with, let us look at Sec.77-C of the Act. It refers to two circumstances, one of which is a defective condition of the goods and another as defective or improper packing as a consequence of which they are liable to damage, deterioration, leakage or wastage. The fact of such defective packing must be recorded by the sender or his agent in the forwarding note. Then, in a such a case, notwithstanding anything contained in the provisions of Chapter VII, the railway administration shall not be responsible for any damage, deterioration, leakage or wastage, except upon proof of .negligence or misconduct on the part of the railway administration or any of the servants. But the plaintiff claims compensation for the loss due to pilferage. Can such a loss be brought within the meaning of the expression damage, deterioration, leakage or wastage? Can a loss due to pilferage be directly attributable to any defective or improper packing? Can a defective packing of the goods, protect the railways against its liability for loss due to pilferage? I think not. It seems to me that the said section was obviously intended to cover the cases of damage, deterioration, leakage or wasting either due to the defective condition of the goods or due to its defective or improper this defective or improper packing. It cannot cover loss due to pilferage. Pilferage meant stealing in small quantities. The loss or shortage resulting by such stealing in my judgment, cannot be said to be a damage or deterioration, leakage or wastage of the goods.” In Union of India representing South-Eastern Railway v. Laduram Fakirchand, A.I.R. 1974 Cat. 207, a similar ruling was given under Sec.77-C of the Act. 21. As already stated in the present case, the appellant has not chosen to disclose the facts in the written statement. For has it adduced any evidence whatever at the time of trial. 207, a similar ruling was given under Sec.77-C of the Act. 21. As already stated in the present case, the appellant has not chosen to disclose the facts in the written statement. For has it adduced any evidence whatever at the time of trial. Thus it has not discharged the burden cast on it by Sec.76-F. Therefore, the only inference that can be drawn by the court is that the appellant is guilty of negligence and misconduct due to which loss and damage have occurred. 22. The next contention of learned counsel for the appellant is that there is no proof whatever of the entrustment of the parts which are missing. According to learned counsel if the parts had been separately packed and entered in the railway receipts that would have been evidence of such entrustment. It is contended that in the present case there is no evidence of such entrustment. There is no merit in this condition. The railway receipts show that the tractors as a whole were entrusted to the railways for carriage. If any parts had been kept loosely they should have been described. But in the present case, admittedly no part was kept loosely and the tractors were in running condition at the lime of entrustment. P.W.2 has given evidence that the tractors were in running condition and they were driven to the railway yard for the purpose of loading into the wagon. Hence all the parts were intact in the tractors at the time they were booked for carriage. Hence, it cannot be contended that there is no separate proof of entrustment of the parts. Reliance is placed by learned counsel for the appellant on the judgment of Justice Shanmukham in North Bengal Tractors and Farm Machinery and another v. Union of India owning Southern Railway represented by its General Manager, C.S.No.264 of 1980 dated 23. 1980, a perusal of the said judgment shows that it was decided on the facts of that case. It cannot be utilised for the present case to support the contention of the appellant that there is no proof of entrustment. Once the tractors were entrusted to the railway administration in running condition, it is presumed in the normal course that the tractors were intact. If the tractors were in knocked-down condition at the time of entrustment for carriage that should have been noted in the railway receipts. Once the tractors were entrusted to the railway administration in running condition, it is presumed in the normal course that the tractors were intact. If the tractors were in knocked-down condition at the time of entrustment for carriage that should have been noted in the railway receipts. In the absence of such entry in the railway receipts, it has to be inferred that tractors were entrusted to the railway administration in running condition with all its parts in tact and there is no necessity for proof of separate entrustment of the parts. 23. Next contention is there is no evidence of the value of the missing goods. Learned counsel submits that the relevant bills have not been produced and no acceptable evidence is adduced before the court to show parts which are missing were of such value. Exs.A-48 to A-59 are the claim bills sent by the plaintiffs to which copies of Exs.A-60 to A-71 have been attached. Exs.A-60 to A-71 are the price-lists to prove the value of the parts. The claim bills are connected with the railway receipts. The trial court has considered this aspect of the matter in great detail in paragraphs 15 to 27. With regard to each item, the trial court has referred to various documents produced on the side of the plaintiffs and the evidence in connection therewith. In view of the fact that the trial court discussed the same in detail, we do not think it necessary to repeat it here. However, we will advert to one item/by way of illustration. Learned counsel for the appellant drew our attention to Ex.A-60 and submitted that Ex.A-60 is said to be a price-list. But it does not contain the date or the railway receipt number. According to him it is not connected with the parts which are said to be missing as shown in the open delivery certificate. There is no merit in this contention. Ex.A-60 is connected with Ex.A-57. Ex.A-57 is the claim bill made by the plaintiffs on 212. 1977. That has been forwarded to the defendant under Ex.A-36. A copy of Ex.A-60 is attached to Ex.A-57. That shows clearly the number of the missing parts, the description of the parts and the various marks of identification. It also gives the rate and the net value of the parts. For example, dynamo assembly bears the No.22741. The total quantity is 3. A copy of Ex.A-60 is attached to Ex.A-57. That shows clearly the number of the missing parts, the description of the parts and the various marks of identification. It also gives the rate and the net value of the parts. For example, dynamo assembly bears the No.22741. The total quantity is 3. The value is Rs.1,220.64. The bill refers to railway receipt number as No.5/999836 dated 111. 1977. Thus Ex.A-60 if taken along with Ex.A-57 would make out clearly that the parts which are missing are of the specific value mentioned therein. The parts are identifiable from the two documents and their prices are clearly given. There is no substance in the contention of the appellant that the manufacturers have not gone into the box to give evidence as to when exactly those parts were manufactured or whether the parts were imported or indigenous. As said already the learned trial Judge has taken pains to refer to the documents relating to each of the items and we do not find any necessity to repeat them. A perusal of paragraphs 15 to 27 of the trial court judgment convince us that the trial Judge has taken the correct view in regard to the value of the goods. Hence we hold that the plaintiffs have adduced sufficient evidence and conclusively proved the value of the parts which are lost or missing. 24. The last contention of learned counsel for the appelant is that no claim was made as required by Sec.78-B of the Railways Act within six months from the date of delivery of the goods for carriage by railway. This contention is applicable only with regard to items 7,8 and 11. The contention is that with regard to all the items, the plaintiffs have produced Exs.A-30 to A-38. The replies issued to them by the railways are marked as Exs. A-39 to A-47. There is no reply to Ex.A-33, Ex.A-34 and Ex.A-37. It is therefore argued that if such claim had been made, the railways would have sent replies. In the absence of any proof produced by the plaintiffs that claims were sent to the railways and they reached them, it should be held that no such claim was made by the plaintiffs. We are unable to accept this contention. It is therefore argued that if such claim had been made, the railways would have sent replies. In the absence of any proof produced by the plaintiffs that claims were sent to the railways and they reached them, it should be held that no such claim was made by the plaintiffs. We are unable to accept this contention. We find from the documents, Exs.A-27 to A38, that with regard to each consignment claims have been made immediately by the 1st plaintiff and in reply thereto the railways have been sending their replies. Just because replies with regard to three of the claims are not available to be produced before court, it does not mean that no such claim was made. Apart from this P.W.I has given evidence that Exs.A-27 to A-38 were forwarded to the defendants. There is no suggestion in the cross-examination that the claims under Ex.A-33, Ex.A-34 and Ex.A-37 were not sent to the defendant. There is no question in the cross-examination with regard to the same. As pointed out already the defendant has not chosen to let in any evidence on its side. Hence, in the absence of any evidence on the side of the defendant, the court is entitled to accept the evidence of P.W.I and hold that claims have been made under Sec.78-B of the Act within the prescribed time. As contended by the plaintiffs the trial court has rightly accepted the case of the plaintiffs and held that Sec.78-B of the Act has been complied with in the present case. We have no hesitation to affirm the said finding and to hold that the requirements of Sec.78-B of the Act have been fulfilled in the present case. 25. For the above reasons, all the contentions urged by learned counsel for the appellant are negatived. The appeal fails and it is dismissed with costs.