VALI MAHOMED HAMAD Vs. GIPRAILWAY

JUDGEMENT

(1.) THIS was a suit filed by the consignee of certain goods which were delivered to the South Indian Railway Company, to be carried from Sevoy Petoy, a station on the South Indian Railway to Jalgaon, a station on the defendant Railway Company. Admittedly when the goods arrived at Jalgaon, the oil of fourteen tins had been removed and lost to the consignee. The consignor had signed a risk note in the Form B, and so the Q.I.P. Railway Company would not be liable for any such loss, unless it could be shown to have occurred owing to the wilful neglect of their servants, provided the goods were carried in accordance with the contract of carriage. It was proved that the waggon containing the plaintiff's goods instead of travelling along the shortest route via Dhond and Manmad was carried to Kalyan, and thence to Jalgaon. There was evidence that the Station Master of Kalyan had to put fresh seals on the waggon containing the plaintiff's goods and that would point to the loss having occurred between Kalyan and Dhond. The learned Judge found that there was no evidence to show that the Company agreed to carry the consignment via Dhond and Manmad, and that the only agreement was to carry the goods via Raichur. He also was of opinion that the carriage via Kalyan was more attractive to the plaintiff because there was only one junction on the route via Kalyan while by the other route there were two, viz., Dhond and Manmad. He forgot the fact that the goods-train had to be marshalled at Lanowli and remarshalled at Karjat before it arrived at Kalyan, and that the same process would have to be repeated at Kasara and Igatpuri on the way from Kalyan to Jalgaon, and, therefore, instead of that route being more attractive to the plaintiff, there would be many more opportunities for the loss to occur than on the route via Dhond and Manmad. It seems obvious that the contract was to carry the goods by the nearest route, and that if the Railway Company, to suit their convenience, wished to carry the goods by a longer route which offered far more opportunity for the loss to occur, they were bound to give notice to the consignor so as to give him an opportunity of deciding whether he should sign the risk note in Form B or not. The evidence also shows that the route via Dhond and Manmad would be the usual route for goods coming from Southern India via Raichur, and that as a matter of fact, the charges were recovered from the plaintiff as if the goods had travelled via Dhond and Manmad. It seems to us, therefore, that the Company by carrying the goods via Kalyan went outside the terms of the contract and could no longer rely on the protection afforded by the risk note so as to be absolved from liability for the loss which occurred. Therefore the decree dismissing the suit must be set aside and there must be a decree for the plaintiff with costs throughout.