- (1.)POLLOCK , A.J.C. 1. The Central Trading Agency, Bombay, plaintiff 1, at the request of Mr. Agashe, a pleader of Wardha, plaintiff 2, despatched two chairs by the G. I. P. Ry. from Bombay to Wardha. On inquiry at the railway station in Bombay the servant of plaintiff 1 was informed that the freight on the chairs by passenger train would be Rs. 2-1-0, and therefore in accordance with his instructions sent them by passenger train. The railway receipt, Ex. P-3, which was sent by plaintiff i to plaintiff 2, shows that the weight of the two chairs was taken as 20 seers, and the freight payable by the consignee was Rs. 2-1-0. On arrival at Wardha the station authorities demanded Rs. 16, though it is now the case for the railway that the correct freight was Rs. 13-9-0. As the value of the chairs was only Rs. 17 Mr. Agashe refused to pay, and instituted the suit, out of which this application arises, for the recovery of Rs. 17 as the price of the chairs, Rs. 3 as the cost of packing, and Rs. 10 as mental and moral damages. The railway sent the chairs back to Bombay and there sold them for Rs. 15 and counter-claimed for Rs. 49 odd. The lower Court awarded Mr. Agashe Rs. 20 as damages and dismissed the counterclaim. The evidence clearly shows that the chairs were the property of plaintiff 2 when they were despatched, and plain-till 1 must therefore be deemed to have despatched them as his agent. Plaintiff 2 is therefore entitled to maintain this suit. The railway relies on Rule 127 at p. 258 of the Guide and Coaching Tariff, Ex. D-4, which provides Parcels will be charged either by weight or by measurement, which ever gives the greater charge, one cubit foot being considered equal to five seers in weight.
(2.)THE railway also relies on Rule 23 at p. 119, which reserves to the railway the right to correct any charges that may have been incorrectly made and to recover undercharges from whatever cause arising, and on Rule 24, which states that the weight of articles as given in the railway receipt is merely inserted for the purpose of estimating the railway charges, and that the railway reserves the right of re-weighment and re-measurement at destination. The substance of those last two rules is reproduced in condition 6, which is on the back of the railway receipt and provides : That the railway have the right of re-measurement, re-weighment, re-classification and re-calculation of rates, terminals and other charges at the place of destination and of collecting before parcels are delivered any amount that may have been omitted or undercharged.
The effect of the contract therefore was, as pointed out in Secy. of State v. Nandlal AIR 1923 Nag 52 that the company would carry the goods for Rs. 2-1-0 or such greater sum as might be found due on reclassification or recalculation according to the rates that should have been charged under the railway rules. The railway clerk, who calculated the freight at Rs. 2-1-0, acted in contravention of Rule 127 cited above, but the lower Court held, following Fazal Ilahi v. E. I. Ry. Co. AIR 1922 All 324, that there was a valid contract with the railway and that it was not open to the railway subsequently to alter it. It has been held in several cases that where a railway enters into a contract at the place of despatch to charge freight on certain goods by the maund, it is not justified in charging freight by the wagon at the destination, and that such a charge does not come within the words "re-measurement, re-weighment, re-classification and re-calculation." Similarly, it seems to me that, where at the place of despatch the railway has agreed to charge by weight, it cannot at the place of destination claim to charge by measurement. That is not a claim to re-weigh or to re-measure. It is a claim to measure for the first time and to calculate in accordance with such measurement. The decision of the lower Court was correct, and the application for revision is therefore dismissed with costs. Pleader's fee Rs. 15.