P L D 1960 Dacca 42 (PLP)

7. It is true that the liability of a Railway is very much limited if they enter into contract with the members of the public under Risk Note A, otherwise the liability of a Railway is a statutory liability of a bailee as provided by section 72 of the Railways Act, and if any case is not covered by Risk Notes, the Railway is bound to take reasonable care of a bailee, and the liability is determined by the provisions of sections 151, 152 and 161 of the Contract Act. Section 72 of the Railways Act runs as follows :‑

"(1) The responsibility of a Railway Administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee‑under sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 1872). (2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it‑ (a) is in writing signed by or on behalf of the person sending or delivering to the Railway Administration the animals or goods, and Is otherwise in a form approved by the Central Government. (3) Nothing in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of common car riers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway Administration."

8. Sections 151, 152 and 161 of the Contract Act are as follows: "Section 151‑In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152‑The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it as described in section

151. Section 161‑If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deteriora tion of the goods from that time."

9. A contract for the carriage of goods does always mention the place where the goods are booked, the place of destination, and impliedly also the route by which the goods are to be carried. Therefore, if without the knowledge and consent of the party concerned the Railway choose to carry the goods by a route other than the route agreed upon or by the usual route, they do so at their own risk and cannot fall back upon the terms contained in the Risk Note contrary to the terms' of which they carry the goods by a different route, nor can they claim that they are absolved from the general statutory liability of a bailee. There fore, Mr. Das is right in his contention that the Risk Note A does not stand in the way of his claim at all, and all the cases cited by him, except the case of East Indian Railway v. Rahimullah' Ilahi Baksh, support his contentions. In this connection, we may refer to the following observation of Macleod, C. J., in the case of Val! Mahomed Hamed v. G. I. P. Railway Company: "It seems obvious that the contract was to carry the goods by the nearest route, and that if the Railway Company, to suit their convenience, wished to carry the goods by a longer route which offered far more opportunity for the loss to occur, they were bound to give notice to the consignor so as to give him an opportunity of deciding whether he should sign the Risk Note in Form B or not. The evidence also shows that the route via Dhond and Manmad would be the usual route for goods coming from Southern India via Raichur, and that, as a matter of fact, the charges were recovered from the plaintiff as if the goods had travelled via Dhond and Manmad. It seems to us, therefore, that the Company by carrying the goods via Kalyan went outside the terms of the contract, and could no longer rely on the protection afforded by the Risk Note so as to be absolved from the liability for the loss which occurred." This case, we find, has been referred to in the case of Janki Das Gobinda Ram v. The Secretary of State for India in Council. It is not necessary to refer to the other cases, for, we find that the ruling is the same in all these cases, and Mr. Hussain has not been able to lay his hands on any case which gives the contrary ruling. On the facts of the present case, there is no doubt that the Railway is not protected by Risk Note A, and they have failed to take as much care of the goods as required by the pro visions of section 151 of the Contract Act. Besides, it is in evidence that it takes less than a week to carry the goods from Alamdanga to Dacca by the usual route, but the first consignment was not delivered until after one month, and the second until after five months of the date of booking, and even then it is admitted both by the Advocates of the appellant and the respon dents that there was no flood until the latter part of May or beginning of June 1951. We may also point out that section 161 of the Contract Act also provides the liability of the bailee for not delivering the goods at the proper time.

10. Mr. Hussain has pointed out that, in case we allow this appeal, we should not allow the same to the extent of 95 maunds 24 seers, as, just below Ground No. 8 of the Memorandum of Appeal in N. B., the figure given is 94 maunds 24 seers, and not 95 maunds 24 seers. But Mr. Das points out that this is only a typing mistake, for, if 95 maunds 24 seers is multiplied by Rs. 19‑9‑9 pies as stated in N., B., it will be found that the total given therein, i.e., Rs. 1,887, is correct. Mr. Hussain concedes this. 11.The result, therefore; is that this appeal is allowed with costs ; the respondents shall also pay to the appellant the amount of court‑fees paid by the latter in the two Courts below ;the judgments and decrees of the Courts below refusing the claim of the plaintiff-appellant in respect of 95 maunds 24 seers of masur dal are set aside ; and that the suit will be decreed for Rs. 1,887, being the price of 95 maunds 24 seers at Rs. 19‑9‑9 pies per maund, with damages thereon at six per cent. The application for amendment of the Memorandum of Appeal is not pressed and is rejected. NANDI, J.‑‑I agree with my lord the Chief Justice. K. B. A. Appeal allowed.