SECY OF STATE Vs. MADHURI DAS-NARAIN DAS

JUDGEMENT

(1.) This is an application in revision by Secretary of State for India in Council against a decree passed by the Judge of the Small Cause Court at Allahabad in a suit brought by a plaintiff opposite-party for damages arising out of late delivery of a consignment sent by G.I.P. Railway from Lalitpur to Naini. The consignment was under risk note B, which implies that in consideration of payment of a lower freight the railway company is relieved of its responsibilities as bailee to a certain extent. The circumstances leading to the institution of the suit which has given rise to this application in revision are briefly as follows: The consignment in question arrived at its destination, Naini, on 19 August, 1931. The name of the consignee entered in the railway receipt was that of the firm Madhuri Das Narain Das, the plaintiff opposite-party. The railway receipt described the relative consignment as No. 23, which implied that the consignment also bore the same number, so that at the time of delivery the consignee could assure himself as regards the identity of the consignment which he had to take delivery of. As already stated, the consignment was under risk note B. Another consignment addressed to the plaintiff opposite-party had arrived two days earlier, i.e., on 17 August 1931. Through some misunderstanding, the nature of which it is not necessary to mention, he paid not only the freight due in respect of that consignment but also the freight payable in respect of the consignment in question. The plaintiff opposite-party arranged for delivery being taken on 19 August 1931. The person deputed by him for that purpose proceeded to the railway station and demanded delivery of the consignment. The consignment consisted of a number of canisters of ghee. The railway official showed his readiness to hand over a number of canisters said to be those mentioned in receipt presented by the plaintiff's man; but the latter discovered that the canisters bore No. 93 and not 23, as mentioned in the railway receipt. He entertained some doubt regarding the identity of the consignment. Accordingly he requested that "open delivery" be made. In other words, he desired that the contents of the canisters be examined by him in the presence of the railway official giving him delivery of the same. The canisters would have to be opened for the purpose of examination. The railway official noted this request for transmission to the higher authorities as he could not allow the canisters to be opened on his own responsibility be fore delivery was taken. On 25 August 1931 the plaintiff sent a letter to the Divisional. Traffic Manager, G.I.P. Railway, Jubbulpore, complaining that a great delay had occurred in the delivery of goods. The circumstances in which open delivery was insisted upon were mentioned in detail. The letter also contained a warning that the prices of ghee had gone down and were going down still further and that the railway company would be responsible for any loss occasioned by the delay. It was not delivered till 1 September 1931, when an inspector came to Naini and allowed the plaintiff's men to open the canisters to satisfy himself regarding the contents. This was done and delivery of the goods taken on behalf of the plaintiff. Between 19 August 1931 and 25 August 1931 the price of ghee went down considerably, the difference amounting to Rs. 150-7-0, which he claimed by the plaintiff together with interest amounting to Rs. 16.

(2.) The only ground on which the plaintiff's claim, as stated in the plaint, is based is that delivery should have been made on 19 August 1931 and that unwarranted delay which resulted in loss of the plaintiff was attributable to the railway staff. It was pleaded in defence that the plaintiff was not justified in refusing to take delivery on 19 August 1931 except after examining the contents of the canisters.. It was admitted on behalf of the defendant that No. 23, entered in the railway receipt, was the result of a mistake and that the contract number which the consignment bore, viz., No. 93, should have been noted in the receipt. The lower Court held that the railway administration was responsible for the loss occasioned to the plaintiff in consequence of late delivery, inasmuch as the mistake in the receipt as regards the number of the consignment amounted to a misconduct on the part of railway officials. On this finding the suit has been decreed.

(3.) It has been argued before me by the learned advocate for the applicant that the consignment being under risk note B, the railway administration could not be held responsible for any loss which might have resulted to the plaintiff. Reference has been made to Section 72, Railways, Act, which provides that the responsibility of a railway administration for the loss, destruction or deterioration of goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Secs.151, 152 and 161, Contract Act, 1872. Sub-section (2) of the same section provides that an agreement purporting to limit that responsibility shall, in so far as it purports to affect such limitation, be void, unless it is in writing signed by or on behalf of the person consigning or delivering to the railway administration the goods and is otherwise in a form approved by the Governor-Genaral in Council. It is not disputed that the risk note B employed in this case, is in accordance with the form approved by the Governor-General in Council. It is also not disputed that the general liability of the railway administration, referred to in the earlier part of Section 72, is subject to the limitations imposed by the risk note B. The note contains the following clause: We, the undersigned, do in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to, the said consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct of the Railway Administration's servants.