FIRM MAHESH GLASS WORKS Vs. GOVERNOR GENERAL IN COUNCIL

JUDGEMENT

(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: