G I P RAILWAY COMPANY Vs. ABTAMBOLI

JUDGEMENT

(1.) The plaintiff is the owner and manager of the firm of Tamboli Brothers & Co., who do business as commission agents in A malner in the East Khandesh District. He is the owner of the ginniug factory and press at that place. He used, in course of his business, to send finished pressed bales of cotton to various mills in Bombay, arid, on February 5, 1920, he tendered a consignment of one hundred and twenty-eight bales at Amalner station and, on February 7, 1920, another consignment of one hundred and sixty-two bales for the purpose of being carried and delivered to the Swadeshi Mills of Bombay at Kurla. Owing to a shortage - of waggons at that time, there was some delay in the despatch of goods traffic at this station, and although the bales were accepted by the railway company for despatch to Bombay they were stacked on a portion of the goods platform to await their turn as waggons became available. Accordingly, on February 16, 1920, one hundred and sixteen bales out of the first consignment of one hundred and twenty-eight bales were loaded and despatched to Bombay, and on the next day, the 17th, one hundred bales out of the second consignment of one hundred and sixty-two bales were similarly loaded and despatched.

(2.) Thus, there remained a balance of twelve bales of the first consignment and sixty-two bales of the second, making a total of seventy-four bales. Before these could be despatched, a fire broke out on the afternoon of February 25, and these bales with others were destroyed by fire. The plaintiff accordingly brought this suit against the Agent of the G.I.P. Railway Company to recover damages, for the loss of his bales. The railway company, in their written statement, contended that the seventy-four bales, in dispute were not legally delivered to the company, and also put the plaintiff to proof that the bales had, in fact, been destroyed by fire. But these two contentions are not now before us. The first one was given up in the trial Court and the finding of the Subordinate; Judge that the seventy-four balas were actually destroyed by fire has also not been disputed here.

(3.) The main contentions, which we have to consider, are : firstly, whether the railway company is protected by a risk-note in form H which is said to have been executed on behalf of the plaintiff in November 1919 and is alleged to cover the goods in dispute; and, secondly, whether, assuming that the railway company is not so protected, the lower Court has erred in holding that there was negligence on the part of the defendant and his servants, entitling the plaintiff to damages. The amount of damages actually awarded by the lower Court is the sum of Rs. 10,508. The assessment of damages at that amount is not contested before us.