EAST INDIAN RAILWAY CO Vs. JOGPAT SINGH

JUDGEMENT

(1.) In this case some important and interesting questions are raised in respect of the obligation of a Railway Company towards the owner of goods consigned to it for transportation. On the 24 January, 1922, 12 tins of ghee were consigned to the E.I. Railway at Arrah to be carried to Chundernagore, and there to be delivered to the plaintiff, the opposite party. On the 21 August, 1922, seven of the tins were delivered to the plaintiff at Chundernagore, but the Railway Company failed to deliver five of the tins. The issue in this case is whether the plaintiff is entitled to recover damages for the non-delivery of the said goods. The Railway Company undertook to carry the goods on the terms of a risk-note which was signed by the consignor. The risk-note was in the form (B) which has been approved by the Governor-General in Council pursuant to Section 72(2)(b) of the Indian Railways Act (IX of 1890). It ran as follows: Risk-Note Form B. (To be used when the sender elects to despatch at a "special reduced" or "owner's risk" rate articles or animals for which an alternative "ordinary" or "risk acceptance" rate is quoted in the tariff.) Arrah Station,24 January, 192S. <JGN>Page</JGN> 2 of 9 Whereas the consignment of 12 tins ghee tendered by me/us as per forwarding No. 77194 of this date, for despatch by the E.I. Railway Administration or their transport agents or carriers to Chundernagore station and for which I/we have received Railway receipt No. 77194 of same date, is charged at a special reduced rate instead of the ordinary tariff rate chargeable for such consignment. I/we, the undersigned do, in consideration of such lower charge, agree and undertake to hold the said Railway Administration and all other Railway Administrations working in connection therewith and also all transport agents or carriers employed by them respectively over whose Railways or by or through whose transport agency or agencies the said goods or animals may be carried from Arrah to Chundernagore harmless and free from all responsibility for any loss, destruction, or deterioration of or damage to the said consignment, for any cause whatever except for the loss of a complete consignment of one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration, or to theft by or to the wilful neglect of its servants, transport agents or carriers employed by them before, during and after transit over the said Railway or other Railway lines working in connection thereto or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignment provided the term "wilful neglect" be not held to include fire, robbery from a running train or any other unforeseen event or accident.

(2.) By Section 72 of the Railways Act it is provided that (1) the responsibility of a Railway Administration for the loss, destruction or deterioration of animals or 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.152 and 161 of the Indian Contract Act, 1872. (2) an agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it- (a) is in writing signed by or on behalf of the person sending or delivering to the Railway Administration the animals or goods; and (b) is otherwise in a form approved by the Governor-General in Council. (3)nothing in the Common Law of England or in the Carrier Act, 1865 regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway Administration.

(3.) The learned trial Judge found (i) that the Railway Company had not proved that the five tins had been lost; and (ii) that the disappearance of the five tins was due to the wilful neglect <JGN>Page</JGN> 3 of 9 of the servants of the Railway Company.