Takru, J. -
(1.)THIS appeal by the plaintiff is directed against the judgment and decree of the learned Additional Civil Judge, Allahabad, dismissing his suit.
(2.)THE facts involved in this appeal lie within a narrow compass and for the most part are not in dispute. It appears that on the 4th of September 1948 Tugun Ram, proprietor of Tugun Rarn Shriniwas purchased 79 bags of betel nuts from a place known as Bhola in East Pakistan and booked the same with the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd,, defendants 2 and 3, at Bhola for carriage to, and delivery to him, at Allahabad. When the consignment was delivered to the plaintiff at Allahabad, it was found that 37 bags of betel nuts, weighing 74 maunds were missing, and of the remaining bags one had been cut and restitched and on weighing was found to be short by 1 maund and 4 seers for which the necessary short certificate was issued to the plaintiff. Thus the plaintiff received 75 maunds 4 seers less of betel nuts which he alleged caused him a loss of Rs. 9169/3/- at the prevailing market rate of Rs. 122/- per maund. As the consignment passed over routes operated upon by the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd., i. e. defendants 2 and 3, and the E. I. R. administration, i.e. defendant No. 1 in addition to the East Bengal Railway, Pakistan, the plaintiff after giving the requisite statutory notices to defendants 1 to 3 brought the suit giving rise to this appeal for the recovery of Rupees 9169/3/- from them.
All the defendants contested the suit, but as in' this appeal the plaintiff pressed his claim against defendants 2 and 3 only, it is unnecessary to set out the defence filed on behalf of defendant 1, i.e. the A. I. R. administration. Defendants 2 and 3 filed a joint written statement and their case was that under their agreement with the plaintiff they were liable for the consignment only so long as it was in their custody and as they had handed it over intact to the East Bengal Railway, they were not liable for any loss which might have occurred subsequently. It was also pleaded that as under the same agreement the plaintiff had undertaken to deal with the East Bengal and the East Indian Railways as Principals and the said defendants as their agents had further expressly agreed to absolve the defendants of all liability for loss etc. to the consignment whilst in the custody of the railways and as the loss took place when the consignment was in the custody of one or other of the railways referred to above, the said defendants were not liable for the same.
The trial Judge found (1) that the loss occurred during the carriage of the consignment over the East Bengal Railway, (2) that none of the defendants was liable for that loss and (3) that as the East Bengal Railway could not be sued, the suit had to fail. Feeling aggrieved by that decision, the plaintiff preferred the aforesaid appeal to this Court.
(3.)THE appeal first came up for hearing before Gyaneridra Kumar, J., and it was contended before him that the trial Judge's view regarding the liability of defendants 2 and 3 for the loss caused to the consignment whilst in the custody of the East Bengal Railway was erroneous. THE contention found favour with the learned Judge -- as is apparent from his Referring Order -- but finding himself faced with the decision of Dwivedl, J. in First Appeal No. 166 of 1955 (All), in which on similar facts a contrary view was taken, he had So option but to refer the appeal to a larger Bench and it is in these circumstances that this appeal has come up before us for hearing.
For the proper appreciation of the rival contentions canvassed before us one more fact requires to be mentioned. It appears that at the time the plaintiff booked the consignment at Bhola, he executed a Goods Forwarding Note, which, inter alia, contained the following condition:-- Condition No. 11. "The Company undertake to carry goods over their own transport system only. Where goods are accepted by the company for carriage beyond their own transport system, and where goods are either wholly or partly carried by other carrying administration, in the matter of carriage beyond the company's own transport system, the company act merely as agents for such carrying administrations. The contract of carriage shall be deemed to have been entered into between the consignor (and the consignee) on the one hand and the one or other of the various carrying administrations, including the Company, on the other hand, that may at any material time be in control or possession of the goods for carriage to destination and/or delivery to the consignee, and that any liability for loss, damages, destruction, partial or total deterioration, detention and delivery of the goods shall solely rest on the respective carrying administrations in whose charge the goods may have been placed at the time such loss, damage, etc., is found to have arisen. In case of goods accepted by the Company for carriage beyond their own system of transport the consignor (and the consignee) shall be deemed to have agreed that the Company has accepted such goods on the footing that the consignor (and the consignee) has entered Into a series of contracts with the different carrying administrations, and that the Company' will not be liable for any loss, damage, etc. which may happen when the transit over the Company's system of transport is over and when the goods are not directly under their control."