GOVERNOR-GENERAL IN COUNCIL Vs. THAKURSI DASS

JUDGEMENT

(1.) This is a defendant's application under Section 25, Provincial Small Cause Courts Act.

(2.) The plaintiff opposite party consigned certain hales of cloth from Ahmedabad station on the B.B. & C.I. Railway to Darbhanga station on the C. & T. Railway, executing risk notes, A and Z. The consignment arrived in a suspicious condition, and, therefore, open delivery was taken, on which it was found that there was a shortage of cloth Worth Rs. 66. The plaintiff then after the necessary notices brought a Small Cause Court suit to recover that sum. The learned Small Cause Court Judge has decreed the claim, holding that the loss was due to the misconduct, of the railway servants, and this finding seems to be based merely on an inference which is drawn from another finding that the defendant's case that the packing was defective was not correct. That finding in turn he based on a statement of defendant's witness 2 that the bales in question were ill-pressed packed with iron bands.

(3.) It is necessary to consider the nature of the two risk notes and the legal position in cases of this kind. Risk note Z, which is for Our purposes the same as risk note B, is a special form to be used when the sender elects to dispatch at a special reduced or "owner's risk" rate, and, in view of the reduced rates, charged it exempts the Railway Administration from responsibility for loss and damage except under certain conditions. The consignor in consideration of such lower charge agrees to hold the Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the consignment from any cause whatever upon proof that such loss, destruction, deterioration or damage arose from the misconduct of the Railway Administration's servants.