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Second Appeal No. 236 of 1954, decided on 4th July 1957.

S. 72‑Goods carried by Railway, without consignor's consent, by longer route not stipulated in contract i.e., Risk Note A‑Deterioration of goods‑Railway not absolved from general statutory liability of bailee and liable to pay damages‑Contract Act (IX of 1872), Ss. 151, 152 & 161.

A contract for the carriage of goods does always mention the place where the goods are booked, the place of destination, and impliedly also the route by which the goods are to be carried. Therefore, if without the knowledge and consent of the party concerned the Railway choose to carry the goods by a route other than the route agreed upon or by the usual route, they do so at their own risk and cannot fall back upon the terms contained in the Risk Note contrary to the terms of which they carry the goods by a different route, nor can they claim that they are absolved from the general statutory liability of a bailee. If the goods are thus carried along a longer route and there is delay and consequent deterioration of the goods, the Railway will be liable for damages due to deterioration in spite of the Risk Note.

Bengal Nagpur Railway Company, Limited v. Messrs Haji Latif Abdulla A I R 1937 Cal. 410 ; Srimati Sabitri Thakurain v. F. A. Savi A I R 1927 Pat. 354 ; Vali Mahomed Hamed v. G. 1. P. Railway Company I L R 46 Bom. 830 and Janki Das Gobind Ram v. The Secretary of State for India in Council I L R 47 All. 234 rel.

East Indian Railway v. Rahimullah Illahi Baksh A I R 1928 Lah. 349 held not relevant.

B. C. Das and S. C. Bose for Appellant.

Syed A. B. Mahmud Hussain, Assistant Government Pleader for Respondents.

.‑This appeal is on behalf of the plaintiff. It involves an important question as to the rights and liabilities of the public and of the Railways when goods are despatched under the owner's Risk Note, Form A.

2. In the present case, the material facts are admitted. On the 7th of April 1951, the plaintiff consignee booked 200 bags of masur dal, weighing 505 maunds, to be carried by the E. B. Railway from Alamdanga Station to Dacca. Instead of carrying them to Dacca, the consignment was carried to Kumarkhali Station, and from there the bags were re‑despatched to Dacca. Out of the entire consignment, 122 bags were delivered to the plaintiff‑consignee on the 24th of May 1951, and this weighed 274 maunds 33 seers. On the 24th of September 1951, another consignment of 78 bags weighing 191 maunds 8 seers was delivered to the plaintiff at Dacca. Out of the latter, according to the plaintiff, 95 maunds and 24 seers were of marketable condition, and the rest, 95 maunds 24 seers, were unfit for con sumption and useless. The plaintiff, therefore, filed the present suit claiming compensation for non‑delivery of 3h maunds 38 seers, and also for 95 maunds 24 seers found useless.

3. The defence of the Railway was that, although the goods were mis‑despatched and sent to a wrong place, and delivered to the consignee after a long time, they were protected by the terms and conditions of the Risk Note, Form A, and that the delay was also due to the breach of the railway line between Bahadurabad and Teesta Ghat caused by flood.

4. Both the Courts below held that the Railway Adminis tration were protected by the Risk Note, Form A, but the claim for 38 maunds 38 seers was, however, decreed, and the rest of the claim was refused. Hence this present Second Appeal.

5. Mr. Das, who appears for the appellant, argues that, inasmuch as on the showing of the respondent Railway the goods were not carried by the route stipulated for in the contract, namely, Risk Note A, the Courts below erred in holding that the respondent Railway could still claim protection under the terms of Risk Note A. It is pointed out that, although the Risk Note A relates to the condition and the defective packing of goods consigned, the Railway cannot claim the benefit of the Risk Note unless the goods are carried by the route stipulated for, and that in this case the goods were not only not carried by the rout agreed upon, but they were delivered at the destination, namely, Dacca, several months after they were booked at Alamdanga Station, and but for this delay, there would not have been any deterioration and loss. The learned Advocate for the appellant, therefore, contends that the liability of the Railway, in the facts and circumstances of the case, must be one of an ordinary bailee, and unless it is shown that as bailee they have taken as much care as a prudent man in the circumstances would have taken of his own goods, they must be held liable. In support of his argument, the learned Advocate has relied upon a number of cases: Bengal Nagpur Railway Company, Limited v. Messrs Haji Latif Abdulla (A I R 1937 Cal. 410), Srimati Sabitri Thakurain v. F. A. Savi (A I R 1927 Pat. 354), Vali Mahomed Hamed v. G. I. P. Railway Company (I L R 46 Bom. 830) and Janki Das Gobind Ram v. The Secretary of State for India in Council (I L R 47 All. 234). Mr. Das has also referred to the case of East Indian Railway v. Rahimullah Illahi Baksh (A I R 1928 Lah. 349), which is not really relevant for the purpose of this appeal.

6. Mr. Hussain, who appears for the respondents, urges that there was no misconduct on the part of the Railway, and no misconduct of any kind has been proved, and so, the Courts below are right in holding that the present case is covered by the Risk Note A and the respondent is entitled to claim all the protections under the Risk Note A.

7. It is true that the liability of a Railway is very much limited if they enter into contract with the members of the public under Risk Note A, otherwise the liability of a Railway is a statutory liability of a bailee as provided by section 72 of the Railways Act, and if any case is not covered by Risk Notes, the Railway is bound to take reasonable care of a bailee, and the liability is determined by the provisions of sections 151, 152 and 161 of the Contract Act.

Section 72 of the Railways Act runs as follows :‑------

"(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 sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 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

Is otherwise in a form approved by the Central Government.

(3) Nothing in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of common car riers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway Administration."

8. Sections 151, 152 and 161 of the Contract Act are as follows:

"Section 151‑In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.

Section 152‑The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it as described in section 151.

Section 161‑If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deteriora tion of the goods from that time."

9. A contract for the carriage of goods does always mention the place where the goods are booked, the place of destination, and impliedly also the route by which the goods are to be carried. Therefore, if without the knowledge and consent of the party concerned the Railway choose to carry the goods by a route other than the route agreed upon or by the usual route, they do so at their own risk and cannot fall back upon the terms contained in the Risk Note contrary to the terms' of which they carry the goods by a different route, nor can they claim that they are absolved from the general statutory liability of a bailee. There fore, Mr. Das is right in his contention that the Risk Note A does not stand in the way of his claim at all, and all the cases cited by him, except the case of East Indian Railway v. Rahimullah' Ilahi Baksh, support his contentions. In this connection, we may refer to the following observation of Macleod, C. J., in the case of Val Mahomed Hamed v. G. I. P. Railway Company:

"It seems obvious that the contract was to carry the goods by the nearest route, and that if the Railway Company, to suit their convenience, wished to carry the goods by a longer route which offered far more opportunity for the loss to occur, they were bound to give notice to the consignor so as to give him an opportunity of deciding whether he should sign the Risk Note in Form B or not. The evidence also shows that the route via Dhond and Manmad would be the usual route for goods coming from Southern India via Raichur, and that, as a matter of fact, the charges were recovered from the plaintiff as if the goods had travelled via Dhond and Manmad. It seems to us, therefore, that the Company by carrying the goods via Kalyan went outside the terms of the contract, and could no longer rely on the protection afforded by the Risk Note so as to be absolved from the liability for the loss which occurred."

This case, we find, has been referred to in the case of Janki Das Gobinda Ram v. The Secretary of State for India in Council. It is not necessary to refer to the other cases, for, we find that the ruling is the same in all these cases, and Mr. Hussain has not been able to lay his hands on any case which gives the contrary ruling. On the facts of the present case, there is no doubt that the Railway is not protected by Risk Note A, and they have failed to take as much care of the goods as required by the pro visions of section 151 of the Contract Act. Besides, it is in evidence that it takes less than a week to carry the goods from Alamdanga to Dacca by the usual route, but the first consignment was not delivered until after one month, and the second until after five months of the date of booking, and even then it is admitted both by the Advocates of the appellant and the respon dents that there was no flood until the latter part of May or beginning of June 1951. We may also point out that section 161 of the Contract Act also provides the liability of the bailee for not delivering the goods at the proper time.

10. Mr. Hussain has pointed out that, in case we allow this appeal, we should not allow the same to the extent of 95 maunds 24 seers, as, just below Ground No. 8 of the Memorandum of Appeal in N. B., the figure given is 94 maunds 24 seers, and not 95 maunds 24 seers. But Mr. Das points out that this is only a typing mistake, for, if 95 maunds 24 seers is multiplied by Rs. 19‑9‑9 pies as stated in N., B., it will be found that the total given therein, i.e., Rs. 1,887, is correct. Mr. Hussain concedes this.

11.The result, therefore; is that this appeal is allowed with costs ; the respondents shall also pay to the appellant the amount of court‑fees paid by the latter in the two Courts below ;the judgments and decrees of the Courts below refusing the claim of the plaintiff-appellant in respect of 95 maunds 24 seers of masur dal are set aside ; and that the suit will be decreed for Rs. 1,887, being the price of 95 maunds 24 seers at Rs. 19‑9‑9 pies per maund, with damages thereon at six per cent. The application for amendment of the Memorandum of Appeal is not pressed and is rejected.

.‑‑I agree with my lord the Chief Justice.

K. B. A. Appeal allowed.

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