Mootham, C.J. - (1.) This is a second appeal by a plaintiff from a Judgment and decree of the learned Civil Judge of Etawah dated 2-6-1947, which has been referred to a Bench by a learned Single Judge.
(2.) The appeal arises out of a suit filed by the appellant against the Governor General of India-in-Council for the recovery of Rs. 2,691 as damage for loss of part of a consignment of ghee. On 5-5-1944, the appellant sent 319 tins of ghee from Etawah to Bardwan by the East India Railway. The goods were sent under two risk notes, in Forms A and Z respectively. When the train reached Bardwan on 17th May it was found that 7 tins were missing altogether, that 16 tins were empty and that 19 were of short weight. The trial Court gave the appellant a decree for Rs. 2,659-2-0, but on appeal the lower appellate Court modified the decree as it was of opinion that the appellant was only entitled to recover from the respondent the value of the 7 tins which had been wholly lost. It accordingly substituted for the decree of the trial Court a decree for Rs. 514-2-0.
(3.) There has been some discussion before us as to whether the liability of the railway administration was to be determined on the basis of the risk note in Form A or of the risk note in Form Z, and it is the appellant's case that the latter is the risk note which embodied the contract between the parties. I do not propose to say anything about the risk note' in Form A as in my opinion the appeal must fail even if the risk note in Form Z is, as the appellant contends, the risk note which is material.;