P.N.Mookerjee, J. - (1.) This is a second appeal by the defendant Bengal Nagpur Railway and it is directed against a decree for damages or compensation for non-delivery of a certain consignment of biri tobacco. The material facts are as follows:
(2.) The consignment in question comprising 153 bags of biri tobacco was booked with B. B. & C. I. Railway for delivery to the plaintiff-respondent at Bankura, a station on the Bengal Nagpur Railway. In course of transit the consignment had to pass also through the G. I. P. Railway, There is, however, no dispute now that the consignment was duly made over to Bengal Nagpur Railway. The consignment reached the Bankura Railway Station on the 7th May 1945, and, at the time of delivery to the consignee, two complete bags were found missing and nine bags were found cut, disclosing a shortage of 6 maunds 35 seers. The Railway refused to compensate the consignee for the loss sustained by reason of the shortage and hence the present suit by the consignee.
(3.) The material defence was that the Railway was not liable as the shortage was due to theft by persons other than the Railway employees and also because the consignment in question was booked under risk notes A, B & C. It was also contended by the defence that at the time of delivery it was not pointed out to the Railway authorities that nine bags had been cut.;