JUDGMENT R.L. Khurana, J.:- This Regular Second Appeal at the instance of the plaintiff has been directed against the judgment and decree dated 21.1.1993 of the learned District Judge (Forests), Shimla, affirming the judgment and decree dated 30.11.1987 of the learned Sub Judge 1st Class (3),"Shimla. 2. The plaintiff is a registered partnership firm and carrying on business in seed potatoes under the name and style of Messers. Seed Alu Suppliers Syndicate. A consignment of 188 bags of high quality Himachal Potatoes was Sent by the plaintiff to Bangarpet through rail on 18.12.1981 vide Railway Receipt No. 013634 for sale on commission basis. In the railway receipt Messers Kirumal Nawalk ishore (a sister concern of the plaintiff) was shown as consignor while the plaintiff was shown as its consignee. The consignment was despatched from Shimla to Kalka by the defendant on narrow gauge rail line vide wagon No.l007R and from Kalka onward to its destination on broad gauge rail line in wagon No.24395-CR. The consignment of potatoes, at the time of its loading at Shimla, was of high quality, of good and normal health and free from any vice. The delivery of the consignment at its destination was delayed abnormally due to the negligence and misconduct of the railway authorities. The consignment reached its destination after 31 days as against the normal period of 15 to 18 days. As a result of such delay, the seed potatoes got damaged/deteriorated. On arrival at the destination the seed potatoes were found in a damaged and deteriorated condition. Water was found oozing from the potatoes. There was foul smell. After getting the damage assessed by the railway authorities, the delivery of the consignment was obtained. Marketable potatoes were sorted out and were sold in the market for Rs.5930/-. The plaintiff claimed damages of Rs.23.052A from the defendant, calculated as under:- (i) Cost of 188 bags of potatoes; Rs.23.765/- (ii) Add railway freight, commission charges and other Incidental expenses incurred on the consignment: Rs.5, 217/- Total: Rs.28.982/-(iii) Less sale proceeds received: Rs.5, 930/- Net Loss Rs.23.052/- 3. The plaintiff has averred that loss was suffered due to negligence and misconduct of the railway authorities. Though a claim was lodged with regard to the loss suffered by the plaintiff with the railway authorities within the prescribed period of six months, such claim has not been settled. The plaintiff has averred that loss was suffered due to negligence and misconduct of the railway authorities. Though a claim was lodged with regard to the loss suffered by the plaintiff with the railway authorities within the prescribed period of six months, such claim has not been settled. Hence a suit for the recovery of amount of loss came to be filed. 4. The defendant resisted the suit. Though booking of the consignment was admitted, the high quality of the consignment was denied. It was pleaded that the quality was never checked. Fresh crop of potatoes is liable to damage and deterioration in transit due to inherent vice. The consignment was booked at owners risk and as such the defendant is protected under section 73(3) of the Indian Railways Act, 1890. It was admitted that the consignment reached its destination in a damaged condition. Negligence and misconduct on the part of the railway authorities in the carriage of consignment was denied. The quantum of damage was also denied. 5. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the plaintiffs are entitled to the suit amount as claimed, if so, to what extent? OPP 2. Whether a valid and legal notice under section 80 C.P.C. and 78-B of the Indian Railways Act has been issued? OPP 3. Relief. 5. The learned trial court found issue No. 1 against the plaintiff and issue No.2 in favour of the plaintiff. Consequent upon the findings on issue No. 1, the suit of the plaintiff was dismissed vide judgment and decree dated 30.11.1987. The appeal carried by the plaintiff before the learned first appellate court was also dismissed on 21.1.1993. 6. The present Second Appeal was admitted for hearing on 12.7.1993, on the following substantial questions of law:- 1. Whether the courts below have misread the evidence on record and applied wrong approach to come to the conclusion that the appellants have failed to prove specific damage suffered by them? 2. Whether for the loss/damage caused to perishable goods in transit due to delay in carriage of goods, Section 74(3) or Section 76 of the Indian Railways Act will apply? 7. I have heard the learned counsel for the parties and have also gone through the record of the case. The answer to the above questions are as under: - Question No.2. 8. 7. I have heard the learned counsel for the parties and have also gone through the record of the case. The answer to the above questions are as under: - Question No.2. 8. Admittedly, a consignment of 188 bags of seed potatoes was booked at Shimla by the plaintiff for Bangarpet on 18.12.1981. Such consignment reached its destination in a damaged condition. 9. The Indian Railway Act, 1890 (hereinafter referred to as the old Act) as in force at the time of filing of the present suit, stands repealed by the Railways Act, 1989 (hereinafter referred to as the new Act) on and with effect from 1.7.1990, that is, the date on which the new Act came into force. The present case, however, would be governed by the provisions of the old Act which was in force on the date of filing of the suit. 10. Section 73 of the old Act (which corresponds to section 93 of the new Act) provides:- "73. General responsibility of a railway administration as a carrier of animals and good - Save as otherwise provided in this Act, a railway administation 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) order or restrictions imposed by the Central government or a State Government or by any officer or authority subordinate to the Central Governbment 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." 11. Section 74(3) of the old Act, corresponding to seciton 97 of the new Act, further provides:- "(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 section 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." 12. Ex.Dl/1 and Dl/2 are the copies of railway receipts vide which the consignment was booked. A perusal of the same shows that the consignment was booked at owners risk rate. 13. The contention raised on behalf of the plaintiff is that the liability of the defendant for the loss due to delay in carriage of consignment is absolute under seciton 76 of the old Act. On the otherhand, the case of the defendant is that the consignment was carried at owners risk rate and consequently under section 74(3) of the old Apt, it is not liable unless the plaintiff establishes that the deterioration or damage to the potatoes was the result of negligence or misconduct on the part of die defendant. 14. In the present case, as stated above, the consignment was booked at owners risk rate. Therefore, section 74(3) of the old Act would apply. Section 74(3) containes the following important features:- (i) it applies, notwithstanding anything contained in section 73 of the old Act; (ii) it applies, whatever the cause may be from which the loss, destruction, damage, deterioration or non-delivery has arisen; and (iii)if there has been any loss deterioration, destruction, damage or non-delivery, the railway authoritiesw will not be liable except on proof that such loss, destruction, damage, deterioration or non- delivery was due to negligence or misconduct on the part of railway authorities or of any of its servants. 15. Therefore, for a person to claim damages from railway authorities in respect of goods consigned at owners risk rate, he has essentially to prove that the loss, damage, destruction deterioration or non-delivery was occasioned due to the negligence or mis-conduct on the part of railway authorities or any of its servants. 15. Therefore, for a person to claim damages from railway authorities in respect of goods consigned at owners risk rate, he has essentially to prove that the loss, damage, destruction deterioration or non-delivery was occasioned due to the negligence or mis-conduct on the part of railway authorities or any of its servants. Section 74(3) of the old Act is an exception of section 73, for the reason that when the consignor or the owner of the goods prefers to pay a lower rate, he undertakes higher risk and correspondingly the risk of the railway is lessened or reduced. The result, therefore, is, under section 73, unless the railway authorities establish that it has used reasonable care and foresight in the carriage of goods, it will be responsible for the loss, damage, destruction, deterioration or non-delivery referred to. therein even when such loss and damage etc., arises from one or more of the causes enumerated in the section, but on the filter hand, under section 74, the railway authorities would not be unless such loss, damage etc. is proved to be due to the negligence or misconduct on the part of railway authorities or of any of its servants. 16. In Union of India v. Universal Traders Corporation, Cochin, AIR 1983 Kerala 173, the plaintiff therein had claimed damages alleged to have arisen out of loss sustained by him on account of damage to 27 baskets of shrimps sent from Madras to Cochin due to delay in transit. The Division Bench dealing with the scope and application of Sections 74(3) and 76 of the old Act, held: "The difference in application between Sec.74 (3) and Sec. 76 is this: in the case of goods delivered for carriage at Owners Risk Rate, governed by Section 74(3), it is for the owner to prove positively that the 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: 17. It was further held that Seciton 74(3) of the old Act and not Section 76 is the special provision, inasmuch as Section 74(3) is designed to govern exclusiverly carriage of goods at the Owners Risk Rate. It was further held that Seciton 74(3) of the old Act and not Section 76 is the special provision, inasmuch as Section 74(3) is designed to govern exclusiverly carriage of goods at the Owners Risk Rate. It absolves the railway administration of its responsibility for loss, destruction, damage, deterioration or non-delivery in transit,/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: this is notwithstanding the general responsibility, more or less absolute in nature, similar to that of an insurer, embodied in S. 73 of the Act. Where the railways carry goods at the owners risk rate, the provision of S.74(3) would apply in regard to the owners burden to prove misconduct or negligence on the part of the railway administration or of any of its servants, resulting in loss, destruction, damage, deterioration or non-delivery, from whatever cause arising which expression, in our opinion, is comprehensive enough to include all cases of loss, destruction, damage, deterioration or non-delivery occasioned by delay or detention also; and the principle "generals clausula non porrigitur ad ea quae antea specialiter sunt comprehensa (a general cluse does not extend to those things which are included in previous special words), or shortly stated generalibus specialia derogant (special things derogate from general)" has to be applied having in mind that in contradiction to the general provisions contained in S. 73 in regard to the responsibilities of the Railway administration, S. 74(3) contains special provisions in regard to the carriage of goods at "Owners Risk Rate." When the goods are carried at owners risk rate, in case of loss, destruction, damage, deterioration or non-delivery, the owner could by the application of S. 74(3), succeed only by proving that it was due to the negligence or misconduct on the part of the railway administration or of any of its servants that such loss, destruction damage, deterioration or non-delivery in transit had occurred. The burden to prove negligence or misconduct on the part of the railway administration is on the owner, no burden is cast on the Railway administration to prove that the delay or detention resulting in loss, destruction, damage, deterioration or non-delivery is without negligence or misconduct on its part. 18. The burden to prove negligence or misconduct on the part of the railway administration is on the owner, no burden is cast on the Railway administration to prove that the delay or detention resulting in loss, destruction, damage, deterioration or non-delivery is without negligence or misconduct on its part. 18. In coming to the above conclusion the Division Bench quoted with approval the views expressed by a learned Single Judge of the Calcutta High Court in Union of India v. Mamchand Agarwalla, AIR 1967 Calcutta 133, which reads: "Section 74 specifically says in sub-section that the said section could be applicable notwithstanding anything contained in S.73. S.73 is the section which deals with the general responsibility of the railway administration as carrier of animals and goods. Therefore, S. 73 is the general section relating to the responsibility of a railway administration as carrier of animals and goods. To this section there is an exception and that exception is inS.74. Therefore, S. 73 is the general provision to which there is an exception in S. 74. Therefore, the special provision in S. 74 will exclude the general provision in S. 73.... S. 76 is one of the sections which deal with the causes for destruction, damage or deterioration of goods. Therefore, Section 76 really deals with one particular case of deterioration where there is a general responsibility under S. 72. But when there is no general responsbility under S. 73 S. 76 will not come into operation. Therefore, the operation of S. 76 is controlled by S. 73 and as S. 73 is excluded by S. 74, S. 74 would apply rather than S.76." 19. I am in full agreement with the ratio laid down by the Division Bench of Kerala High Court that on the facts of the present case Section 74(3) of the old Act would apply. The question is answered accordingly. Question No. I: 20. Once it is held that section 74(3) of the old Act would apply, the liability of the defendant would arise only when the plaintiff is able to prove and establish that the loss, damage, destruction, deterioration or non-delivery was due to the negligence or misconduct on the part of the defendant or any of its servants. The evidence coming on the record does not establish any negligence or misconduct on the part of the defendant. The evidence coming on the record does not establish any negligence or misconduct on the part of the defendant. Shri Chander Harish, a partner of the plaintiff, while appearing as PW. 1 has merely deposed that the consignment was abnormally delayed in transit. No negligence or misconduct for such delay has been attributed. There has been no misreading of evidence. 21. For assessing the quantum of damages, the correct basis to assess the damages is the price prevalent at the place of delivery. See: Union of India and another v. Imperial Tobacco Company of India Ltd. AIR 1959 M.P. 232). 22. No evidence is forth coming as to what was the prevalent price of potatoes at Bangarpet at the relevant time. The Honble Supreme Court in Munshi Ram v. Union of India (1971 A.C.J. 313), in a case pertaining to recovery of damages in respect of loss, damage and deterioration caused to potatoes in transit from Bombay to Delhi has held on the failure of the plaintiff to prove the extent of damage, the suit must fail. In the present case as well the court below have rightly held the plaintiff to be not entitled to damages in the absence of evidence. The question is answered against the plaintiff. Final Order: 23. As a result, the present appeal fails and the same is accordingly dismissed. Parties are, however, left to bear their own costs throughout. Appeal dismissed.