Desai, J. - (1.) This is a second appeal by a plaintiff whose suit for damages against the Governor. General in Council through the East Indian and Oudh and Tirhut Railways, has been dismissed by the Courts below.
(2.) The facts are these: The appellant, which is a registered firm carrying on business at Firozabad, booked on 1st September 1941 a consignment of glass bangles from Firozabad on the E. I. Railway to Hajipur on the O. T. Railway. Kanpur lies on the way from Firozabad to Hajipur, but there are two alternative routes between Firozabad and Kanpur and again two alternative routes between Kanpur and Hajipur. The shorter route between Firozabad and Kanpur is the direct broad-gauge route; the alternative route is via Farrukhabad and longer. There is broad-gauge route between Firozabad and Farrukhabad and meter gauge route between Farrukhabad and Kanpur. The shorter route between Kanpur and Hajipur is via Mokameh; there is broad-gauge between Kanpur and Mokameh and meter, gauge between Mokameh and Hajipur. The alternative route via Lucknow and Sitapur is longer, but is entirely meter-gauge, The glass bangles were not packed in anything; they were made into garlands by passing a string through a number of bangles and tying its two ends together. These garlands were packed into the wagon on floor padded with straw. The consignment was booked under risk note Y. This risk-note is used when the consignor elects to enter into a general agreement for a term not exceeding six months for the despatch of "excepted" articles, that is, the articles specified in schedule II to the Railways Act whose value exceeds RS. 100, without payment of the percentage on value authorised in Section 75 of the Act. It is printed in the risk-note that the consignor was required to pay, or engage to pay, a percentage on the value of consignment by way of compensation for increased risk, that he elected not to pay it and that consequently he agreed to hold all railway administrations "harmless and free from any loss, destruction or deterioration of, or damage to, the said consignments from any cause whatever, before, during and after transit, over the said railway, or other railway lines."
(3.) It contains a special clause, dealing with deviation. It is in these words: "In the event of any interruption of through communication on the booked route due to causes over which the railways have no control, traffic may be carried by the next shortest open route on the conditions applying to the booked route in respect of liability and freight." In the risk note it is mentioned that the consignment would be forwarded to Hajipur via FKD and CAA. There is also an endorsement on it "dearer route selected by sender." In the receipt issued to the consignor also it is mentioned that the consignment would go via FKD, meaning Farrukhabad. The bangles were-loaded by the appellant's servants in a wagon. The wagon reached Farrukhabad on 2nd September 1941 where it was unloaded by the appellant's servants and the goods were loaded again in a meter-gauge wagon on 3rd or 4th September. The appellant had selected this route because it could do the transhipment at Farrukhabad which is nearer Firozabad and the wagon could go direct from Farrukhabad to Hajipur. The wagon reached Kanpur on 6th September 1941. The railway authorities there, instead of sending it on to Lucknow and Hajipur, unloaded it themselves and placed the goods in a broad-gauge wagon and despatched it to Mokameh where it arrived on 11th September. There another transhipment was done by the railway authorities and the goods were placed in a meter-gauge wagon on 22nd September and the wagon was dispatched to Hajipur where it reached on 26th September. No information of the transhipments done at Kanpur and Mokameh were given by the railway authorities to the plaintiff. When the appellant went to take delivery of the consignment at Hajipur, it was found that many bangles were broken and many were stolen. The appellant took delivery of the consignment and after the necessary formalities instituted this suit against the railway administrations for damages. It claimed damages under four heads; Rs. 73-7-0 on account of the shortage, Rs. 689 13 0 on account of breakage of bangles weighing 7 maunds, 13 seers, Rs. 650 on account of the loss of market due to the late delivery of the consignment, and it claimed something on account of interest. The total amount claimed by it was Rs. 1500.;