JUDGMENT Hon’ble Manoj Misra, J.—This is a plaintiff’s appeal against the judgment and decree dated 4.8.1978 passed by the District Judge, Allahabad in Civil Appeal No. 170 of 1978, whereby the decree of the Additional Civil Judge, Allahabad in Original Suit No. 228 of 1974 was affirmed. 2. The Original Suit No. 228 of 1974 was instituted for compensation to the tune of Rs. 8458/- with costs, interest pendente lite and future. The plaintiff’s case was that a consignment of 315 baskets of green mangoes was dispatched from Malda to Allahabad, under Parcel Waybill No. 14277, on 26.6.1972. It was claimed that railway administration in normal course ought to have taken 3 or 4 days to deliver the consignment, but owing to the misconduct and negligence on the part of the railway administration and its agents or servants, delivery was made on 6.7.1972, as a consequence of the delay, the mangoes got deteriorated, rotten and unfit for use to the extent indicated in the plaint. 3. The defendant contested the suit by claiming that the consignment was booked at ‘Owner’s Risk Rate’ and, as such, the railway administration is absolved from all liabilities and responsibilities for loss, deterioration or damages except upon the proof of negligence or misconduct on its part or its servants or agents. It was also claimed that the Railways do not guarantee for dispatch of particular articles or animals by particular train or the delivery within definite time or period. It was also claimed that the consignment reached destination within reasonable time and that there was no negligence or misconduct on the part of the railway administration or their agents. 4. The trial Court, on the pleadings of the parties, framed the following issues : (1) Whether the loss occurred in suit consignment due to negligence and misconduct on the part of defendant? (2) Whether the suit is bad for want of notices as alleged in paras 12 and 13 of the W.S.? If so, its effect? (3) Whether the suit consigment reached within reasonable time? (4) To what relief, if any, is the plaintiff entitled? 5. Issue No. 2 was decided in favour of the plaintiff whereas Issue Nos. 1 and 3 were decided against the plaintiff and consequent to the decision on Issue Nos. 1 and 3, the suit was dismissed. While deciding issue Nos. (3) Whether the suit consigment reached within reasonable time? (4) To what relief, if any, is the plaintiff entitled? 5. Issue No. 2 was decided in favour of the plaintiff whereas Issue Nos. 1 and 3 were decided against the plaintiff and consequent to the decision on Issue Nos. 1 and 3, the suit was dismissed. While deciding issue Nos. 1 and 3, the trial Court concluded as under : “I, therefore, find that for the reasons given above the plaintiff has failed to prove the negligence, misconduct etc. on the part of the defendant and since it was on the ‘Owner’s Risk’ the plaintiff has also failed to prove that the consignment reached there after unreasonable time.” While discussing the Issue Nos. 1 and 3, the trial Court observed that from the testimony of the D.W.1, it appears that transit time is about 400 k.m. per day and the date of the booking and delivery day is not to be counted for ascertaining the transit time, since the plaintiff has not given the distance of Malda to Allahabad, nor there is anything to prove the distance, according to the own case of the plaintiff if two days are added to 4 days, the delay in delivery of the consignment was about 4 days, but since the goods were booked at the ‘Owner’s Risk Rate’ and the Railway gave no assurance for time and for sending goods by particular train, it was on the plaintiff to have led evidence or to have served interrogatries on the defendant so as to prove on record that there was delay on the part of the defendants and the delay was caused due to the negligence of the defendants. It further found that there was no evidence to show that anything had happened to the mangoes during the transit except that they were found rotten due to their inherent quality. 6. Aggrieved by the judgment and decree of the trial Court, the plaintiff went up in appeal. The appellate Court dismissed the appeal. While dismissing the appeal it was observed that the view taken by the trial Court must be upheld. 6. Aggrieved by the judgment and decree of the trial Court, the plaintiff went up in appeal. The appellate Court dismissed the appeal. While dismissing the appeal it was observed that the view taken by the trial Court must be upheld. While dismissing the plaintiff’s suit, both the Courts below placed reliance on the provisions of sub-section (3) of Section 74 of the Indian Railways Act, 1890 as also on Rule 121, which lays down that Railway does not guarantee the dispatch of aticles or animals by any particular train or the delivery time within a definite time or period. 7. Challenging the judgment of the Courts below, the present second appeal has been filed. At the time of admission of this appeal, the following substantial questions of law stated as question Nos. 1 and 3 in the memo were formulated : “1. Whether the deterioration of the consignment being proved due to unreasonable delay in the carriage due to negligence and misconduct on the part of the Railway Administration the dismissal of suit of the plaintiff-appellant was justified? 2. Whether the Court below has considered the impact and effect of Section 106 Indian Evidence Act and Section 73 and 77-C of the Railways Act and as such non-consideration of the same in a legal way has vitiated the judgment?” 8. I have heard Sri J. Nagar, learned senior counsel assisted by Shri V.C. Tripathi, learned counsel for the appellant and Shri Prasant Mathur, learned counsel for respondent and have perused the record. 9. Learned counsel for the appellant submitted that the Courts below had wrongly put burden on the plaintiff to prove negligence on the part of the Railways, when negligence should have been inferred from the late delivery of the consignment. Shri J. Nagar submitted that sub-section (3) of Section 74 of the Indian Railways Act would not absolve the Railways from its liability on account of any loss, destruction, damage, deterioration or non-delivery, in transit, of goods, from whatever cause arising, where it is proved that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or any of its servants. Shri J. Nagar submitted that under Section 76 of the Indian Railways Act, 1890, railway administration is responsible for loss, destruction, damage or deterioration of goods where such loss etc. Shri J. Nagar submitted that under Section 76 of the Indian Railways Act, 1890, railway administration is responsible for loss, destruction, damage or deterioration of goods where such loss etc. has 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 any of its servants. It was submitted that since the Courts below were of the view that there was delay of about 4 days, therefore, the burden was on the defendant to prove that the said delay was not on account of negligence or misconduct on the part of the Railways in handling the goods during transit. It was submitted that since the Courts below have wrongly placed burden on the plaintiff when the burden ought to have been on the defendant, the judgment and decree of the Courts below stands vitiated. In the alternative it was also submitted, that the finding of the Courts below that the goods were consigned at “owners risk rate” was not justified in absence of specific proof with regard to the availability of “railway risk rate” at the station of dispatch. It may, however, be mentioned that Sri Nagar did not press any argument with regard to the impact of Section 77-C of the Act, as admittedly neither of the Court below based its judgment upon interpretation of the said provision, even otherwise it was no body’s case that the goods were packed in a defective manner. 10. Per contra, Sri Prasant Mathur, learned counsel for the respondent submitted that admittedly the goods were dispatched under ‘Owner’s Risk Rate’, and the Railways do not take any undertaking to dispatch the goods by any particular train, or to deliver the same within a definite time or period, therefore, there could be no presumption that if the goods reached with some delay, there was negligence or misconduct on the part of the Railways. Shri Prasant Mathur submitted that no evidence was led by the plaintiff to prove that the goods reached destination beyond unreasonable time except for a bald assertion that the normal transit period of goods is of 3 or 4 days. Shri Prasant Mathur submitted that no evidence was led by the plaintiff to prove that the goods reached destination beyond unreasonable time except for a bald assertion that the normal transit period of goods is of 3 or 4 days. He further submitted that the view of the trial Court that the plaintiff failed to prove that the consignment reached beyond unreasonable time is a possible view and being a question of fact, this Court cannot interfere in exercise of its powers under Section 100 of the Civil Procedure Code. Sri Mathur also pointed out that there was no dispute with regards to the fact that the consignment was at “owner’s risk rate”, and the observation of the trial Court that the goods were at “owner’s risk rate” was based on the defendant’s pleading and testimony, which was never challenged by raising any such argument before the lower appellate Court, and even no substantial question of law was proposed or even got formulated so as to challenge that the consignment was not at “owner’s risk rate”. He, accordingly, contends that such a plea cannot be permitted at the stage of hearing of the appeal. 11. At the outset it may be mentioned that the question whether the goods were dispatched at “owner’s risk rate” or at “railway risk rate” is a plea, which is not a pure question of law so as to enable a party to raise it before the second appellate Court without having it been pressed before the lower appellate Court, particularly when the trial Court had observed that the consignment was at “owner’s risk rate”. Even the questions proposed in the memorandum of this second appeal do not make out a challenge to the consignment at “owner’s risk rate”. Otherwise also, the questions formulated for hearing of this appeal do not raise any such issue and no application was moved to get an additional question framed for adjudication of this appeal, accordingly, the appellant cannot be permitted to raise a plea, at this stage, that the goods were not consigned at “owner’s risk rate”. 12. Before examining the respective merit of the submissions of the learned counsel for the parties, it would be necessary to mention that when the consignment was at “owner’s risk rate”, the provisions of Section 74(3) would be attracted and the general provisions of Section 73 would be relegated to the background. 12. Before examining the respective merit of the submissions of the learned counsel for the parties, it would be necessary to mention that when the consignment was at “owner’s risk rate”, the provisions of Section 74(3) would be attracted and the general provisions of Section 73 would be relegated to the background. Accordingly, for proper assessment of the submissions made by the learned counsel for the parties it would useful to examine the provisions of Section 74 and Section 76 of the Indian Railways Act, 1890, as they stood at the relevant time. The aforesaid sections are being reproduced herein below: “74. Responsibility of a railway administration for aninmals or goods carried at owner’s risk rate.—(1) When any animals or goods 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 owner’s risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner’s 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 consignor to that effect. (3) When any animals or goods are deemed to have been tendered to be carried, at the owner’s 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.” “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 any of its servants.” 13. A perusal of the provisions of sub-section (3) of Section 74 goes to show that it limits the liability of the railway administration as a carrier when the goods are carried by it at the ‘Owner’s Risk Rate’. In such a situation, the railway administration could be saddled with liability upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the Railways or any of its servants. Section 76 of the Indian Railways Act, 1890 provides that when it is proved that the loss, destruction, damage or deterioration of goods have been caused by the delay then the burden is on the railway administration to prove that the delay arose without negligence or misconduct on the part of the railway administration or any of its servants. Thus, section 76 comes to the rescue of the consignor when the consignor proves: (a) that there is a loss etc to the goods etc consigned by him; (b) that there is a delay on the part of the railway administration; and (c) that the loss etc has been caused on account of the delay. Unless the consignor succeeds in establishing all the three ingredients, as noted above, the burden would not shift on the railway administration to prove that the loss etc caused to the goods of the consignor was not on account of its negligence. 14. This Court in the case of Union of India v. Ram Prasad, AIR 1988 All 174 , held that Section 76 is in the nature of a proviso to Section 74(3) which is a general provision absolving the railway administration of its responsibility for the loss or deterioration if the goods are sent at ‘Owner’s Risk Rate’. It was held that there is nothing in Section 74(3) or Section 76 to show that the latter is in any way controlled by the former section. Thus, the provisions of Section 76 will also apply when the goods are booked at the ‘Owner’s Risk Rate’. The above view of this Court was taken after considering the decisions of several High Courts, namely, Union of India v. Shankar Lal, AIR 1972 MP 201 ; A. Rafiq Ahmad and another v. Union of India, AIR 1972 Mad 454 and Union of India v. Ram Prasad Prahaladrai, AIR 1982 Raj 253 . 15. The above view of this Court was taken after considering the decisions of several High Courts, namely, Union of India v. Shankar Lal, AIR 1972 MP 201 ; A. Rafiq Ahmad and another v. Union of India, AIR 1972 Mad 454 and Union of India v. Ram Prasad Prahaladrai, AIR 1982 Raj 253 . 15. Coming to the facts of the present case, the goods were consigned at Malda on 26.6.1972 and were delivered at Allahabad on 6.7.1972 that is in about 10 days. Trial Court has recorded a finding, while deciding issue Nos. 1 and 3, as follows: “I, therefore, find that for the reasons given above the plaintiff has failed to prove the negligence, misconduct etc. on the part of the defendant and since it was on the ‘Owner’s Risk’ the plaintiff has also failed to prove that the consignment reached there after unreasonable time.” The reasons in support of the aforesaid finding can be found from certain observations made by it, while deciding Issue Nos. 1 & 3, which are being reproduced herein below: “.....The P.W.1 and P.W.2 has told nothing. The reason accepted that the goods reaches there normal in 3-4 days at least. The plaintiff should have given the evidence as regards reasonable time for other transit to prove delay.”......”The plaintiff could have served interrogatories on the defendants and he could have lead evidence on the part that there was unreasonable delay on the part of the defendant and delay was cause due to their negligence.” 16. The aforesaid finding of the trial Court has been assailed by the learned counsel for the appellant on the ground that the said finding is inconsistent with the observation of the trial Court in the earlier part of the judgment where the Court itself had concluded that there was a delay of about 4 days. Reliance has been placed on certain observations of the trial Court, which are as follows: “....It is admitted that the consignment were dispatched on 26.6.1972 and reached the destination on 6.7.1972 that is total time about the transit was 10 days according to the plaintiff ordinarily the time taken during such consignment is about 3-4 days in normal course. The D.W.1 has deposed that transit time is about 400 k.m. per day and the date of the booking and delivery day not be counted for the said transit time. The D.W.1 has deposed that transit time is about 400 k.m. per day and the date of the booking and delivery day not be counted for the said transit time. The plaintiff has not given the distance of the Malda to Allahabad nor there is anything on record to prove the distance according to the own place (should be read as “case”) of the plaintiff. If two days are added to the 4 days the delay is about 4 days.” In my view these observations cannot be taken as finding. They were made to assess the delay as per the plaintiff’s case. Whereas, the finding was that the plaintiff had failed to prove that the goods reached its destination after unreasonable time. As to what was the reasonable time, it was for the plaintiff to prove. Not only that, the plaintiff was also required to prove that there was delay. The trial Court took into consideration the fact that the plaintiff did not lead any evidence to show that what was the normal delivery time ordinarily taken for transit from Malda to Allahabad. The Court also drew adverse inference against the plaintiff for not serving interrogatories on the defendant to elucidate the position. Taking the aforesaid circumstances, the view of the Courts below that the plaintiff failed to prove that unreasonable time was taken on the part of the railway administration in delivery of the goods, which were dispatched from Malda in the State of West Bengal to Allahabad in the State of Uttar Pradesh, cannot be assailed as perverse or being contrary to law. 17. While assessing whether the consignment has been delayed or not, the Court is required to find out whether the time taken is reasonable or not. A reasonable time is certainly not necessarily always the actual time for consignment to reach the destination. In fact sometimes the consignment might reach the destination earlier and sometimes later. 17. While assessing whether the consignment has been delayed or not, the Court is required to find out whether the time taken is reasonable or not. A reasonable time is certainly not necessarily always the actual time for consignment to reach the destination. In fact sometimes the consignment might reach the destination earlier and sometimes later. In the case of Union of India v. Bhagaban Rout, AIR 1969 Ori 100 , the Orissa High Court on a claim of a similar nature, as in the present case, where the mangoes were dispatched from Ellore station on 11.6.1957 to Cuttack Station, where it reached on 20.6.1957, the Court, on a plea of the plaintiff that the usual time for consignment of mangoes to reach from Ellore to Cuttack is 4 to 5 days, whereas it reached Cuttack in 9 days, with a delay of 4 to 5 days, held that “a reasonable time is certainly not necessarily always the actual time for the consignment to reach the destination. In fact sometimes the consignment might reach the destination earlier and sometimes later. To assess reasonable time one is not to be guided by the actual time taken by similar consignments in respect of identical goods. Rule 8 of the above Tariff Rules accordingly lays down that Railways do not guarantee the dispatch of goods by any particular train nor will they be responsible for the arrival of goods at any station within any definite time.” The Court further observed that “if 7 days is the reasonable transit time for a whole mango wagon consignment from Ellore to Cuttack, the delay of 2 days cannot be said to be unreasonable. Moreover, there is no assertion or proof that the mangoes dispatched from Ellore would not have been damaged and were not in fact damaged during the reasonable time of 7 days required for transit. The delay was also not so unusual and unreasonable that a presumption under Section 114, Evidence Act, is to be drawn that the damage was due to the delay of those 2 days.” 18. Similar view was taken in the case of Virumal v. Union of India, AIR 1955 N.U.C. 1263 (Vol. 42) (AJMER), where again 3 days delay in delivery of a mango consignment was found not to be sufficient to prove negligence or misconduct in a claim made against the Railways. 19. Similar view was taken in the case of Virumal v. Union of India, AIR 1955 N.U.C. 1263 (Vol. 42) (AJMER), where again 3 days delay in delivery of a mango consignment was found not to be sufficient to prove negligence or misconduct in a claim made against the Railways. 19. Having considered the case in its entirety, I am of the view that the plaintiff has not been able to dislodge the finding returned by the trial Court that he had failed to prove that the Railways took unreasonable time in delivery of the consignment and, as such, were guilty of misconduct or negligence entitling the plaintiff to compensation. Accordingly, the burden could not have shifted on the railway administration to prove that there was no negligence on its part. Thus the view taken by the Courts below does not call for any interference. The appeal is, accordingly, dismissed. No order as to costs. ——————