Sudha Krishna Mukerji vs East Indian Railway Co.

Adami, J.—The plaintiff-appellants are merchants in Giridih. They ordered a consignment of rice from Burma and this consignment duly arrived at the Kidderpur docks in Calcutta. Their agent in Calcutta delivered this rice, which on weighment was found to amount to 2,473 maunds, to the East Indian Railway at the Kidderpur Dock. The Railway Company seeing that the bags in which the rice was contained were unsound and had holes in them and that the seams were weak, refused to take the consignment unless the consignor agreed to sign a Risk Note in Form A. The Risk Note was signed by the consignor and showed that the weight of the rice delivered to the Railway Company was 2,473 maunds. The consignment was received on the 3rd November and was delivered at Giridih. On arrival at Giridih and on weighment of the consignment it was found that there were 2,268 maunds in the bags. The plain tiffs, thereafter instituted the suit out of which the second appeal arises claiming damages for the shortage of the consignment delivered. The Munsif decreed the plaintiff''s suit but the Subordinate Judge has reversed the finding on appeal and has dismissed the suit except as regards the freight paid by the plaintiff for 108 maunds of the rice.

The line of argument taken up before us is that though it has been found that no loss can have happened during the time that the rice was actually in the train since the seals on the wagon were found to be intact, the defendant Railway Company would have to show that the loss did not occur after the rice was received on the 3rd November and before it was put into the Railway wagon. It is argued that the Risk Note in Form A does not cover this period.

Now, in the first place, there is no evidence to show that the Railway Company stored the rice for any time before putting in into the train. It appears that it was taken from the steamer in the dock and put into the railway wagon as soon as possible. In the second place there can be no doubt from th.3 time when the rice was delivered to the Railway Company up to the time it was delivered at Giridih the consignment was in transit and was covered by the Bisk Note in Form A.

The material portion of the Risk Note in Form A is as follows:

Whereas the consignment ... is in bad condition and liable to damage, leakage or wastage in transit, I the undersigned do hereby agree and undertake to hold the said Railway administration, harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same.

It is clear in my mind that this Risk Note would absolve the Company from any responsibility for loss owing to the bad condition of the bags throughout the period of transit, and the period of transit would commence from the time that the bags were received and were carried to the train. It may be true that it was not found that any grain escaped while the rice was in the wagon, but it is quite possible that while the bags were being taken to the train the loss occurred owing to their bad condition. The Risk Note frees the Railway Company from responsibility for any loss arising from the condition in which the goods packed in these unsound bags might be delivered to the consignee. The learned Subordinate Judge has come to a definite finding that the loss was due to the defective condition of the packing and I think that that finding is sufficient to absolve the Company from responsibility.

It has been argued that the onus would fall on the defendant Company in the first place to show that the loss was one such as is contemplated by the Risk Note and, I think, that the admission of the plaintiffs that the bags were in poor condition was sufficient to save the defendant from discharging such onus if such discharge was necessary. The question of onus will not be the same in regard to the Risk Note in Form A as it is in regard to the Risk Note in Form B. The two indemnities are quite different. It is not necessary for the defendant Company to prove that there has been such loss or damage as is contemplated in the Risk Note because it is clear from the admissions that there was such loss and damage.

There is no reason, I think, to interfere with the finding of the learned Subordinate Judge and I would, therefore, dismiss the appeal with costs.

Kulwant Sahay, J.

I agree.