EAST INDIA RAILWAY COMPANY Vs. JAGPAT SINGH

JUDGEMENT

(1.) In this ease some important; and interesting questions are raised in respect of the obligations of a Railway Company towards the owner of goods consigned to it for transportation. On the 24 January 1922, twelve tins of ghee were consigned to the B.I. Railway at Arrah to be carried to Chandernagore, and there to be delivered to the plaintiff, the Opposite Party. On the 21 August 1922, seven of the tins wore delivered to the plaintiff at Chandernagore, 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 (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). Whereas the consignment of twelve tins ghee tendered by meus as per forwarding order No. 77194 of this date, for despatch by the B.I. Railway Administration or their transport agents or carriers to Chandernagore 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 then respectively over whose Railways or by or through whose transport agency or agencies the said goods or animals, may be carried from Arrah to Chandernagore harmless and free from all responsibility for any loss, destruction, or deteriorate of or damage to the said consignment, from 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: 72 (l). 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 sections 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 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 Carriers 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, (1) that the Railway Company had not proved that the five tins had been lost, and (2) that the disappearance of the five tins was due to the wilful neglect of the servants of the Railway Company.