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Allahabad High Court
The Rohilkhand And Kumaun Railway … vs Ismail Khan on 5 March, 1915
Equivalent citations: 29 Ind Cas 207
Author: Piggott
Bench: Piggott


Piggott, J.

1. This is an application in revision on the part of the Rohilkhand and Kumaun Railway Company, against whom the opposite party, who was the plaintiff in the Court below, has obtained a decree for a sum of Rs. 311 from the Court of Small Causes at Bareilly. The case has been brought before this Court, because the defendant Company desires to obtain an authoritative decision as to the respective rights and liabilities of the parties in respect of goods consigned under what is known as a risk note, form A. The essential facts are simple. The plaintiff was the consignee of eleven tins containing ghi which were made over to the defendant Company at Tanakpur Railway Station for delivery to the plaintiff at Bareilly. When the consignment was tendered, it appeared to the Railway Company that the goods were so defectively packed as to be liable, to damage, leakage or wastage in transit. Accordingly the sender was required to sign the risk note above referred to. This document is in effect an indemnity bond, whereby the sender covenants that lie will hold the Railway Company harmless and free from all responsibility for the condition in which the aforesaid goods may Ice delivered to the consignee at destination, and for any loss arising from the same. When the consignment reached Bareilly, the consignee was of opinion that the five out of the eleven tins had suffered damage in transit. He refused to take delivery except on certain conditions. A lengthy correspondence followed, and finally the defendant Company sold the ghi at auction. The ghi had clearly deteriorated in value and the price realised was a small one. The Court below has held that the plaintiff was entitled to compensation, which has been assessed at the sum already stated Witl regard to the position of the parties at the moment the the gads at Bareilly per cot rse for the con-wed ur ler the circums that the principles obvious and have been down by this Court in consignee inspected Station and the pr signee, to have foil stances it seems to the involved are fairly very correctly laid down by this Court in the case of Jwala Pershad v. Great Indian Peninsular Railway 21 Ind. Cas. 448 : 11 A.L.J. 772 and in another case which is printed as a foot-note to the report above-mentioned. The consignee was entitled to have the goods weighed then and there before he surrendered the railway receipt. When this had been done, he was entitled to endorse on the back of the railway receipt a statement that he accepted delivery of the consignment as it stood, while taking note of the fact that its actual weight was only so much and not the full weight as given in the railway receipt itself. He would probably also have been entitled to add to his endorsement any rwmarks which he might think proper to take for his own protection regarding the appearance of the consignment at the moment of his accepting delivery. The Station Master or other local officials of the Railway Company at the delivery Station were bound to offer to the consignee reasonable facilities for weighing the goods on the spot, and would, in my opinion, be going beyond their legal rights if they insisted on the surrender of the railway receipt, with a mere endorsement to the effect that the goods therein specified had been duly received, before allowing the consignee access to the goods for the purpose of verifying the weight. It being obvious, on the other hand, that the Railway Company were bound in self-protection, and would be perfectly entitled, to maintain effective custody of the goods through their servants and agents until the railway receipt was delivered up to them, the practical result is that the plaintiff’s rights were to have this consigment weighed all the spot in the presence of some respectable servant of the Railway Company and that it was the duty of the Railway servants responsible for the delivery of the goods to offer reasonable facilities for this operation, Now it is quite certain that the consignee in this particular case was not allowed to do what I have above suggested. The case for the defendant Company is that the only reason why he was not allowed to do so was that he did not content himself with asking merely for this, but he required the Station Master or some other official of the Company to certify by his signature, either on the endorsement proposed to be made on the railway receipt, or on some other document, that the consignment in question was in fact being delivered short weight and perhaps also in a damaged condition. This is really a simple issue of fact, and the utmost that could be said in support of this application for revision would be that the position has not been fully appreciated in the Court below and the mind of that Court not directed with sufficient clearness to the investigation of the precise question of fact on which the rights or liabilities of the parties should have been made to depend. I think there is a certain amount of force in this argument; but I am not disposed to allow it to prevail. For one thing I am of opinion that, if there was any misapprehension of the essential issues of the case in the Court below, that was largely due to the attitude taken up by the defendant Company in their pleadings before that Court, a point as to which I have a few words to add presently. I am further of opinion that, from any possible point of view, the Company in this particular instance must be held to have made themselves liable to the payment of some damages at any rate to the plaintiff by reason of the delay which took place before the claim of the plaintiff consignee to take delivery, either of a portion only of the consignment or of the entire consignment subject to conditions, was either accepted or definitely rejected on behalf of the Company. It seems to me that those responsible for the action taken on behalf of the defendant Company in this matter were not only under some misapprehension as to the extent of their legal rights, but were at the same time using their advantageous position, as being the party in possession of goods of a peculiarly perishable nature, in order to put pressure on the consignee to accept delivery on their own terms. The Company was in no hurry, being under the impression that any loss which might result from the deterioration of the ghi lying in their godown would inevitably be borne by the consignee. There was always the possibility in their favour that the latter might become nervous as to the extent of this loss and the soundness of his legal position, and might close the transaction by accepting delivery on a railway receipt endorsed with a mere acceptance of the goods as despatched. From the arguments that have been addressed to me in support of this application, I think there is some misapprehension on the side of the Railway Company with regard to the legal effect of a risk note in form A. That document is simply an indemnity bond by the sender for the benefit of the Company. It cannot in itself affect the rights of the consignee. The latter is obviously entitled to receive the consignment as ordered by him and to claim compensation in the event of the consignment suffering loss or damage. The question whether, in this particular case, if delivery had been made on the railway receipt endorsed as already suggested, the consignee would have been entitled to claim damages in the first instance from the Railway Company, leaving the Company to enforce their legal remedy against the sender under the risk note, is one which does not arise on the facts as they stand. As a matter of fact I have a little doubt that and consignee, claiming damages under the cricumstances suggested, would, in his own interests, have implead-ed both the Railway Company and the sender and would ordinarily, at any rate, have obtained a decree against the sender alone, the latter having accepted all responsibility for the condition of the consignment when placed in the hands of the Railway Company. As the case stands, I am clearly of opinion that the defendant Company have made themselves liable in damages to the plaintiff by their conduct, when delivery was asked for by the latter. Even supposing that there was some misunderstanding bet weer; the parties at Bareilly, and that neither the plaintiff consignee nor the local officials of the Railway Company in charge of the consigment, clearly appreciated their respective rights and liabilities, I think the defendant Company should definitely have offered the plaintiff facilities for weighing the consignment on the spot before requiring him to part with the railway receipt. I hold them liable in damages partly for this reason, partly for their long delay in returning a definite answer to the plaintiff’s claim and partly for having sold the consignment at auction under circumstances which did not warrant the adoption of that courss. The application before me raises no serious question as to the amount of the damages awarded and consequently I do not discuss this point. The result is that the application fails and I dismiss it with costs.

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