(1.) This is an application in revision against a decision of the Judge of the Court of Small Causes at Agra. The plaintiff sues the East Indian Railway Company, through its agent, for damages for the loss of a consignment, namely, a package of gunny bags alleged by him to have been delivered to an authorised agent of the company at Agra for carriage to Amroha, which certainly never reached its destination. There WAS sons conflict of evidence as to the fact. The Railway Company in the first instance denied that the plaintiff had over even brought to their office at Agra any such package as that referred to in the plaint. Their main defence, however, was of a technical nature. They called attention to a notification published in the Gazette of India of July 5th, 1902, vide page 504 of Part I, Notification No. 231 dated the 3 of July 1902, in which certain rules were notified and the sanction of the Governor-General in Council to the same published for general information. These rules purport to have been made under the power conferred by Section 47, Sub-section (1), Clause (f) of the Indian Railways Act (IX of 1890). One of them is in the following words: "Goods will in all cases be at the owner's risk until taken over by the Railway administration for despatch and a receipt in the prescribed form his been granted duly signed by an authorised railway servant." The Small Cause Court, after investigating the fasts, found them generally in favour of the plaintiff. The learned Judge, however, felt himself constrained to hold, with reference to a reported decision of this Court, Banna Mal V/s. Secretary of State for India in Council 23 A. 367 : A.W.N. (1901) 107, that the process of delivery by the plaintiff to the Railway Company's agent had not been completed, because no receipt had been granted by the latter to the former. He dismissed the suit accordingly and the plaintiff applied in revision to this Court. The application was entertained by a learned Judge of this Court who, for reasons given in his order, remitted an issue to the Trial Court for determination. The issue is in these terms: "Was the bale of gunny bags in question actually handed over by the plaintiff's servant to the Railway Officials and accepted by the latter or not? In remitting this issue the learned Judge added the following observations: "The lower Court will note that the decision of this issue depends considerably upon the ordinary course of business at the booking station in the course of which goods are offered and accepted for transport. The parties may give further evidence on this point." Neither party offered further evidence upon the remitted issue and the finding of the lower Court has been recorded upon the evidence tendered at the original trial. The finding is in favour of the plaintiff on both points; i.e., the bale in question was actually handed over by the plaintiff's servant to the Railway Officials and was accepted by the latter. Upon this the case has been referred to a Bench of three Judges in order that the principles laid down in Banna Mal V/s. Secretary of State for India in Council 23 A. 367 : A.W.N. (1901) 107 may, if necessary, be further considered. Our attention has been drawn to the fact that this decision has been commented upon by two other High Courts. The cases in question are those of Jalim Singh Kotary V/s. Secretary of Side for India in Council 31 C. 951 : 8 C.W.N. 725 and Ramchandra Natha V/s. G.I.P. Railway 29 Ind. Cas. 545 : 39 B. 435 : 17 Bom. L.R. 496. We find also that, in a subsequent case which has not been printed in any of the authorised reports, but which is to be found in the 21 Volume of the Bombay Law Reporter at page 406 [Narsinggirji Manufacturing Co. V/s. G.I.P. Railway 51 Ind. Cas. 309 : 21 Bom. L.R. 406], a Bench of that Court has re- affirmed the principles laid down in Ramchandra Natha's case 29 Ind. Cas. 545 : 39 B. 435 : 17 Bom. L.R. 496 mentioned above.
(2.) I am inclined to doubt whether the principle of law about which this Court is supposed to have differed from the High Courts at Bombay and at Calcutta really arises in the present case. The rule to which we have been referred occurs in a notification dealing with wharfage, and Section 47(I)(f) of the Indian Railways Act empowers the Railway Companies to make general rules consistent with the Act for regulating the terms and conditions on which the Railway Administration will warehouse or retain goods at any station on behalf of a consignee. In the present case the Court has believed the story told by the plaintiff, where there is a conflict between his evidence and that of the booking clerk and of another servant of the company who were called for the defendant. According to the plaintiff's story no question of wharfage arose. His package was taken over for despatch and it never reached its destination. The Court below, without recording a positive finding on the point, has given very good reasons for believing, on the evidence, that the package in question was actually put upon the rail and was mis-sent to another destination and lost in consequence of having been so mis-sent. Further, the expression "shall be at owner's risk" is in itself a technical one. There are several kinds of "owner's risk," and the Railway Company's Manual which has been produced before as shows that responsibility for goods made over to the Railway Company may be differently divided between the owner and the company, according as to whether the former elects to consign his goods on the terms provided by "Risk Note A" or on the terms provided by "Risk Note B." Whatever might be the case if the package in question had been destroyed by fire, for instance, while lying on the company's premises at Agra, it is by no means clear that the expression "owner's risk" in this notification would exempt the Railway Company from liability, if in fact the package has been totally lost and the failure to deliver the same can be traced to negligence on the part of the company's servants in tending it to a wrong destination.
(3.) As, however, the case has been referred to a Full Bench for an expression of opinion on the general questions of law involved and those questions have been argued before us, I think it advisable to add a few words. It seems to me that, if a rule like that relied upon by the Railway Company in the present case (a rule supposed to have been made in virtue of the powers conferred by Section 47 of Act IX of 1890) is put forward as limiting the statutory liability imposed upon the Railway Company by Section 72 of the same Act, then that rule is inconsistent with the provisions of the Act and is of no effect. I do not think it is open to the Railway Company to enact, by means of a rule, that, although as a matter of fact goods have been delivered to a duly authorised, servant of the administration to be carried by the Railway, never the less the Court shall not deem them to have been so delivered unless and until the Railway servant in question has performed a particular act. To this extent I agree with the decision of the Bombay High Court in Ramchandra Natha's case 29 Ind. Cas. 545 : 39 B. 435 : 17 Bom. L.R. 496.