KISHAN LAL MATRUMAL Vs. BBAND CIRAILWAY COMPANY

JUDGEMENT

(1.) This is a plaintiff's application in revision from a decree of the Court of Small Causes in a suit brought by him for damages for shortage in the goods consigned by him to a Railway Company. The plain, tiff is the proprietor of a firm called Kishan Lal Matru Mai which owns an oil mill at Hathras. He loads tins of mustard oil in railway wagons at a siding in his own mill for being despatched to various places. In this case we are concerned with two consignments of 420 tins of oil each which he delivered to the B.B. & C.I. Railway Company at Hathras on two different dates, one on 15 August 1934 for being despatched to Narainganj and the other on 28 August 1934 for being despatched to Dacca. Each consignment occupied a four wheeler wagon of the B.B. & C.I. Railway Company. These consignments were accepted by the Railway under risk-note forms A and B. The acceptance of goods under these forms implied that owing to the bad condition and defective packing of the goods the Railway Company was not prepared to take any responsibility for the condition in which they might be delivered to the consignee and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the railway administration's servants. It implied further that the Railway Company-would not be responsible for any loss, destruction or deterioration of or damage to the 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.

(2.) The ordinary route by which the two consignments in question had to be taken to their destination was via Qasganj, Sitapur, Gorakhpur and Katihar. The goods had consequently to pass in transit not only on the B.B. & C.I. line, but also on the B.N.W. and R.K. lines. It is to be noted that all these lines are motre-gauge lines so that the two wagons containing the tins of oil despatched by the plaintiff could reach their destination without the necessity of the goods being transferred from one wagon to another at any place on the way. It must be presumed that when the plaintiff despatched the two consignments from Hathras and the Railway Company accepted the consignments, it was clearly understood between the parties that the ordinary route will be followed. In this case, however, there were breaches caused on the B.N.W. line by floods and hence the two consignments were diverted either from Sitapur or from Gorakhpur to a different route and were sent to Benares. It is admitted that no information of this diversion of route was conveyed to the plaintiff. At Benares both the consignments were transferred from the four, wheeler wagons of the B.B. & C.I. to bigger wagons of the E.I. Railway. It is again admitted that the plaintiff was not given any information of this transfer of the consignments from one class of wagon to another. As the E. I. Railway wagons were bigger in size, the tins of oil were necessarily packed rather loosely so that there was likelihood of the tins striking against each other and against the sides of the wagon. The consignments reached their destination and were unloaded in the presence of the railway authorities. A note was made at the time that there was a shortage of 11 maunds, 7 seers and 4 chataks in weight. It was in order to recover damages for this shortage that the plaintiff brought the suit out of which this application in revision arises. The suit was brought in the Court of the Munsif at Hathras on the Small Cause Court Side.

(3.) It may be mentioned here that the plaintiff had despatched nine other consignments on different dates to a place called Bhairavbazar. These consignments had also to be taken by the same route and they were also diverted to Benares with the exception of one which was detained at Sitapur. When these consignments reached their destination and the plaintiff's agents took delivery, it was found that there was a shortage and the tins bore marks of having been cut or bored-with some pointed instrument. The consignment which had been detained at Sitapur reached its destination later on by the ordinary route, and it was found at the time of delivery that there was no shortage in it. The plaintiff brought a regular suit for damages in respect of the eight consignments in which there was a shortage. The learned Munsif disposed of both the suits by the same judgment. He gave the plaintiff a decree in, respect of the eight consignments in the regular suit on the ground that the shortage was due to misconduct on the part of the railway servants. In the other suit out of which this application arises he held that owing to the diversion of route without the plaintiff's knowledge the defendants could not claim any protection from liability under risk, note forms A and B and their liability had to be determined under the Contract Act, but he found that in transferring the goods from a Small wagon to a bigger one they had not done anything which a prudent man would not have done in the circumstances and hence they were not responsible for the loss. Upon this finding the suit has been dismissed and the plaintiff has come up in revision.