JUDGEMENT
Devadoss, J -
(1.)The plaintiff's suit is for damages for non-delivery of the goods consigned from Ahmadabad under Ex. B. The two defendants are Railway companies; and to the 2nd defendant the goods were consigned and the 1 defendant was to deliver the goods at Tinnevelly. The District Munsif dismissed the plaintiff's suit. On appeal, the Additional Subordinate Judge, Tinnevelly, framed two issues and called for findings on them. After the findings were received, the Subordinate Judge considered the whole case and gave a decree to the plaintiff. The defendant Railway Companies have preferred this second appeal.
(2.)The first point urged by Mr. V. Viswanatha Sastri for the appellants is that the Subordinate Judge was not justified in raising additional issues and calling for findings on them, inasmuch as the points raised in the additional issues were not specifically raised in the plaint. I cannot say that the appellants were prejudiced by the Subordinate Judge raising additional issues and calling for findings on them, inasmuch as an opportunity was given to both sides to adduce evidence on the issues raised. The next contention is that the plaintiff is bound by the terms of Ex. B, the railway receipt granted by the Bombay Baroda and Central India Railway Co., when they accepted the goods for despatch to Tinnevelly. In Ex. B, there are letters "O. R. H.". The letters "O. R. H." mean "owner's risk as per H. form". The consignment was by the sender to self. Ex. 1 is the agreement or contract entered into between Subodh Chandra Bhopatlal Shah and the Bombay Baroda and the Central India Railway Company. It is signed by one Mohan Lal for Subodh Chandra Bhopatlal Shah. The Subordinate Judge has on consideration of the evidence found that Mohan Lal had no authority to execute the risk note, Ex. 1. The main contention of the defendants was that Ex. 1 was an agreement entered into between the 2nd defendant and the consignor and that the goods, though sent in May, were sent as per terms of the risk note, Ex, 1. On the finding of the Subordinate Judge that Mohan Lal had no authority to execute the risk note, the consignor cannot be said to be bound by its terms.
(3.)What is urged before me is that the man who delivered the goods to the Railway Co. for transmission to Tinnevelly, consigned it under the terms of Ex. 1. Under Section 72 of the Railway's Act the Railway Administration can enter into an agreement restricting its liability but that agreement, under Clause (2) of the section, will be void unless it is in writing signed by or on behalf of the person sending or delivering to the Railway Administration the animals or goods.
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