Misra, J. - (1.) This appeal arises out of a suit for recovery of the Rs. 1100 in respect of a loss of a consignment of dal sent by one of the partners of the plff. firm, Messrs Manohar Lal Gokul Prasad, from Bhagalpur Katchery to Lucknow, on 4-8-1942. Bhagalpur Katchery was a station on the B. N. W. Railway which is now a part of the Oudh & Tirhut Eailway. The plff firm wrote several letters to the Railway administration, & gave legal notices of the loss in compliance with Section 77, Railways Act & Section 80, Civ. P. C. They eventually filed this suit for 'recovery of Rs. 901/8/ price of the dal, & Rs. 198/8 damages for non-delivery of the goods.
(2.) It would appear that in view of the paucity of wagons the consignment of dal had to be despatched from Bhagalpur Katahery station to Bhagalpur junction on 11-8-1942, for being reloaded there for Lucknow. Bhigalpur junction is the terminus of a branch line, the starting point of which is Thana Bihpur on the direct route from Samastipur to Kathihar. The goods were reloaded & despatched from Bhagalpur in wagan No. 7070. In order to get to Thana Bihpur the wagon had to pass Bhagalpur Katchery station & cross the river Ganges at Bararigbat where the Railway provides a barge for transhipping it to the station on the other side of the river, Moba-deopur Ghat. After reaching that place, wagon No. 7070 proceeded on its journey, but could not go beyond 2 or 3 miles & had to return to Mahadeopur forthwith because the track between the Ghat & the next station Lattipur (four miles) was found uprooted by a riotous mob.
(3.) The case set up by the Railway Company in defence was that the consignment was looted on 17 8-1942, at Mahadeepur where the wagon was stabled, that all reasonable care was taken to prevent the loss & that since the Railway was not an insurer of the goods & its liability was not greater than that which is placed on a bailee in similar circumstances it was not liable for nondelivery of the goods. The other defences are nut relevant at this stage & need not be specified.;