JEETMAL RAM GOPAL Vs. UNION OF INDIA

JUDGEMENT

(1.) On 28/08/1948, the appellants booked a consignment of 176 mds. 6 seers of ghee in 357 tins from railway station Hathras Killah to Kanpur Central on East India Railway under R. R. No. 721200. At the destination station, the consignment was found to be short by 37 mds. 24 seers 4 ch. of ghee. The appellant filed a suit against the railway administration for a decree for Rs. 10,965.50 P. as damages for loss suffered by them on account of short delivery in the consignment. The appellant submitted that the loss was due to the negligence and misconduct of the. employees of the railway administration. The suit was defended by the union of India. It was contended that the good had not been properly packed and on that account the goods were booked at owner's risk under railway risk note in Form A and that the Railway Administration and its employees were not guilty of negligence or misconduct in dealing with the consignment. The trial court decreed the suit holding that the execution of the railway risk note in Form A was not proved, and the railway being a bailee of the goods consigned was liable to make good in loss suffered by the appellants. In appeal against the decree, the High court of Allahabad reversed the decree and dismissed the appellant's suit. With certificate granted by the High court, this appeal has been preferred by the appellants.

(2.) It was enacted by S. 72 of the Indian Railways Act, 1890 as it stood at the relevant time that :

(3.) The railway administration being a bailee, it would ordinarily be liable to make good the loss suffered by the bailor unless it shows that it took such care as a person of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value. It is, however, open to the railway administration by agreement with the consignor to limit its responsibility as a bailee, provided the agreement is executed in the manner prescribed by sub-section (2) of S. 72. The case of the Railway Administration is that it had booked the consignment under Risk Note Form A i. e. at owner's risk. The appellants denied that the consignment was booked under Risk Note Form A. Witness Lala Ram examined on their behalf deposed that a risk note restricting the liability of the railway administration was even executed. Lala Ram stated that he had taken the forwarding note to the station, that after getting the tins of ghee loaded, he took them to Hathras station and that he had the goods booked, but he did not remember who filled up the risk note form and whether it was filled up or not. He did not see O. R. A. (Owner's risk) written on the railway receipt, that the goods were loaded on the day it was booked, that he got loaded the goods and that he was not told that the goods were sent at the owner's risk.