Notwithstanding anything contained in section 93, a railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery in transit, of any consignment carried at owners risk rate, from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants:
Provided that,–
(a) where the whole of such consignment or the whole of any package forming part of such consignment is not delivered to the consignee or the endorsee 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 such consignment or of any package forming part of such consignment which had been so 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 that consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor, the consignee or the endorsee 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, the consignee or the endorsee.
Simplified Explanation
This section deals with the liability of railway administrations when goods are carried at an owner’s risk rate, meaning that the consignment is transported under conditions where the owner assumes responsibility for the risk.
Key Provisions
- Exemption from Railway’s Responsibility:
- A railway administration is not responsible for any loss, destruction, damage, deterioration, or non-delivery of goods that are carried at the owner’s risk rate.
- This exemption applies irrespective of the cause (including negligence, misconduct, or any other reason).
- Exception to the Exemption:
- Despite the above exemption, the railway administration will be responsible if the loss, destruction, damage, deterioration, or non-delivery is caused by negligence or misconduct on its part or the part of its employees.
- Additional Provisions:
- Non-delivery of goods: If the whole consignment or whole package of goods is not delivered to the consignee or endorsee, and the railway administration cannot prove that the non-delivery was due to fire or an accident to the train, then the railway administration is bound to disclose how the consignment was handled while it was under its control.
- Pilferage during transit: If a consignment or package, which was covered or protected in such a way that the covering or protection could not be easily removed by hand, is found to have been pilfered during transit, the railway administration must disclose how it handled the consignment or package while it was in its custody.
- Burden of Proof:
- If the railway administration’s disclosure does not suggest negligence or misconduct on its part, the burden of proof to establish negligence or misconduct falls on the consignor, consignee, or endorsee.
- Essentially, the railway is not automatically responsible unless negligence or misconduct can be clearly inferred from the circumstances or the railway’s handling of the goods.
Implications of Section 97
- Owner’s Risk Rate:
- When goods are transported under an owner’s risk rate, the owner essentially accepts a reduced level of protection from the railway administration.
- The railway is not liable for any issues during transit unless there is proof of negligence or misconduct.
- Disclosure Requirements:
- In cases of non-delivery or pilferage, the railway administration has the duty to disclose the details of how the consignment was handled, including the circumstances during transit.
- If the administration’s explanation does not clearly show any fault, the consignor or consignee must prove that the damage or loss occurred due to negligence or misconduct.
- Proof of Negligence or Misconduct:
- If negligence or misconduct by the railway cannot be inferred from the disclosure, the burden of proving such negligence falls on the owner. This can create a more challenging situation for the consignor or consignee if the railway administration is transparent and shows due care in handling the consignment.
Conclusion
Section 97 establishes that when goods are carried at the owner’s risk rate, the railway administration is not liable for any issues (loss, damage, deterioration, etc.) unless the owner can prove negligence or misconduct by the railway or its employees. The section also outlines specific circumstances (like non-delivery or pilferage) where the railway must disclose how it handled the goods, and in those cases, the burden of proving negligence shifts to the owner if the disclosure doesn’t point to any fault on the railway’s part.
