Burden to Prove Negligence in "Owner’s Risk" Consignments Rests Solely on the Consignor/Consignee

The appellant entrusted 40,444 bags of salt for shipment from Gujarat to Assam via the respondent-railway on November 10, 2009

Upon arrival, a shortage of 1,742 bags was recorded, for which a shortage certificate was issued

The goods were loaded directly by the consignor’s employees without railway supervision, and the Railway Receipt (RR) contained a "said to contain" remark under "owner’s risk"

The Railway Claims Tribunal and the Gauhati High Court concurrently rejected the appellant’s claim for damages totaling Rs. 3,48,400/-, prompting this appeal

1. Whether the Railway Administration can be held liable for shortage in consignment when goods are carried at "owner’s risk" and the receipt contains a "said to contain" remark

2. Whether the appellant discharged the burden of proof regarding the actual number of bags loaded as required under the proviso to Section 65(2) of the Railways Act, 1989

Section 65(2) mandates that if a railway servant does not check the weight or number of packages, the burden of proving the quantity lies on the consignor

Section 93 establishes the general responsibility of railways as a carrier, subject to specific exceptions

Section 97 is a non-obstante clause providing that for goods carried at "owner’s risk," the railway is not responsible for loss or shortage unless negligence or misconduct by the railway or its servants is proved

Rule 1811 of the Indian Railway Code for Traffic (Commercial) Department regarding "said to contain" receipts

The Court determined that the non-obstante clause in Section 97 overrides the general obligations of the Railways under Section 93

Since the salt was transported at "owner’s risk," the appellant was required to prove negligence or misconduct

The Court defined negligence as a breach of a duty of care, but noted that such a duty only arises if the Railway had verified the goods at the time of loading.

Under the proviso to Section 65(2), because the Railway did not supervise loading or verify the count, the legal burden remained with the appellant to prove the initial quantity

The Court found that the appellant failed to produce documents (such as procurement or processing records) to establish the initial 40,444 bags

Consequently, without proof of the initial quantity, the question of negligence due to transit shortage could not be sustained

The Court affirmed the concurrent findings of the Tribunal and the High Court, reinforcing that a "said to contain" remark shifts the evidentiary burden entirely to the claimant