ARDESHIR BHICAJI TAMBOLI Vs. GREAT INDIAN PENINSULA RAILWAY

JUDGEMENT

(1.) The appellant who is a commission agent carrying on business in the Bombay Presidency, delivered on February 5, 1920, 128 bales, and on February 7, 1920, 162 bales of cotton at the the Amalner station of the respondent company for transport to the appellant's business premises at Kurla. Of the 290 bales so delivred, 216 were duly put on board the respondent company's wagons and carried to Kurla, but the remaining 74 bales, together with a large number of bales belonging to other consignors, remained on the station platform at Amalner awaiting transport. On February 25, a fire broke out in some of these bales, and, the appliances available in ease of fire being inadequate, the greater part of the bales at Amalner station, including the 74 bales belonging to the appellant, were destroyed. Thereupon the appellant brought this suit against the respondent company, alleging that the destruction of the 74 bales was due to the negligence of the company's servants, and claiming damages for his loss,

(2.) The suit was tried by the Subordinate Judge of Dhulia, who found that the respondent company's servants had been guilty of negligence, and gave judgment for the appellant for Rs. 10,518 as damages; but on appeal by the respondents to the High Court of Judicature at Bombay, that Court, while agreeing with the trial Judge as to the finding of negligence, held that the respondent company was protected from liability by a document dated November 3, 1919, and referred to in the proceedings as a "risk-note." The question to be determined on this appeal is whether the respondent company is so protected.

(3.) The risk-note was in the following terms : Whereas all consignments of goods or animals for which the G.I.P. Railway administration quotes both Owner's risk or special reduced rates and Railway risk or ordinary rates are (unless I/we shall have entered into a special contract in relation to any particular consignment) despatched by me/us at my/our own risk and are charged for by the G.I.P. Railway Administration at special or reduced Owner's risk rates instead of at ordinary tariff or Railway risk rates, I/we the undersigned, in consideration of such consignments being charged for at the special reduced or Owner's risk rates, do hereby agree and undertake to hold the G. I, P. Railway Administration and all other Railway Administrations working in connection therewith, and also all other 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 in transit from Amalner Station to Kurla Station harmless and free from all responsibility for any loss, destruction or deterioration of or any damage to all or any of such consignments from any cause whatever (except for the loss of a complete consignment or of one or more complete packages forming- part of ft 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 therewith or by any other transport agency or agencies employed by them respectively for carriage of the whole or any part of the said consignments: provided the term wilful neglect be not held to include fire, robbery from a running train or any unforeseen event or accident.