1. This was an action by the plaintiffs to recover a sum of Rs. 40,000 odd as damages from the defendants, the G.I.P. Railway Company. As the case comes before us there is no dispute on those facts which are necessary for our decision. On December 13, 1921, 119 cases of machinery were consigned from Wadi Bunder goods station to Amalner. In the course of the journey a portion of those goods was damaged by fire and rendered useless. The goods were consigned under a risk note in Form B. The question is whether in the circumstances the plaintiffs can recover damages from the railway company. It is unnecessary for us to consider here the various grounds which were raised in the Court below and which have been decided against the plaintiffs, and though it is true as pointed out by the learned Advocate General that the plaintiffs' case has from time to time varied, that appears to be due to the fact that the plaintiffs or their legal advisers were not precisely aware of the true legal position and they put their claim to damages from time to time upon different grounds, and as the case now comes before us, we have one point and one point only to decide, which, though it has not been hitherto raised in the course of these proceedings, is purely a point of law and therefore can be taken in this appeal. It turns upon the construction of the risk note in this case and the effect of Section 72 of the Indian Railways Act, It may be said before coming to this that it is conceded that for some five years the railway companies in Bombay have consistently refused to take goods of the description with which we are now concerned except at owner's risk, and the consignors, the plaintiffs in the present case, have forwarded by this railway many cases of machinery at owner's risk. It is also not disputed before us that there is no obligation upon the railway company to convey goods of any class if they are not desirous of doing so. Under Section 42 they are bound according to their powers to afford reasonable facilities, but that clearly cannot bo construed as imposing on them the duty to take any particular class of goods at railway risk, if they do not think fit to do so. There is nothing intrinsically unreasonable in a railway company refusing to accept heavy cases of machinery except at owner's risk. It was faintly suggested that there was some defect in the risk note in this case in point of signature, but when the true facts were ascertained, that point was abandoned. What is argued with reference to this risk note is this, that the form means that it shall only be employed in those cases whore there are two rates quoted, an ordinary rate and an owner's risk rate and where the consignor has liberty to elect at which rate he will send his goods. Upon that argument was based the proposition that this contract is void under Section 72 of the Indian Raliways Act. Now the scope of Section 72 is shortly this. The first sub-clause lays down that the liability of a railway administration is that of a bailee under the Indian Contract Act. The second clause says that an agreement purporting to limit that responsibility shall in so far as it purports to effect such limitation be void unless it
(a) is immaterial for the purposes of this case,
(b) is otherwise in a form approved by the Governor-General in Council.
That the form used in the present case is that approved by the Governor-General is not denied, but it is argued that the form really conveys by implication the meaning which I have already stated, and inasmuch as the freedom of election between two rates was not allowed to the consignor, the contract in this case is not in accordance with the form and is therefore void. Support is sought for this proposition from a note which forms part of the heading of the form, which runs as follows :To be used when the sender elects to despatch at 'Special Reduced' or 'Owner's risk' rate articles or animals for which an alternative 'Ordinary' or 'Risk Acceptance' rate is quoted in the tariff.
2. Now taken literally the case is clearly within those words. There is an ordinary rate quoted in the tariff for these articles, and the sender elected to despatch them at 'Owner's risk' but the point of the argument is that there can be no election because of the practice of the railway company which has already been described, Now there is a fallacy in this argument, and it is this. This note which forms a portion of the heading is not intended to be any part of the contract between the parties, but it is merely a recital for guidance of those who have to use the form pointing out in what cases the form should be employed. The note refers to what may be called the typical case, viz., where there are two rates and the owner prefers to send his goods at owner's risk. It is not intended to lay down as a condition of the contract that there must be two rates and that there must be a freedom of election between them. Any such construction is harsh and unnatural and it would be impossible to impute to the Governor-General in Council the intention of making any condition of that kind a condition precedent to the execution of the risk note. But further the question arises whether there would be any power in the Governor-General in Council to attach any such condition to a risk note by making a form of this kind in accordance with the power given by Section 72(2)(b). As I have said there is no obligation on the railway company expressed in the Act to carry any particular class of goods at any particular rate, and it would be quite beyond the powers of the Governor-General in Council, as I understand them, to impose by means of a recital in a form for the purpose of Section 72 an obligation which is not contained in the Act itself. Therefore on that ground the point which is sought to be made good before us must in my judgment fail, Put shortly the risk note which has been signed in this case is a risk note in a form approved by the Governor-General in Council. And not only is it literally in that form, but there is nothing, as I understand the matter, which can be urged to show that it sins in any way against the spirit of that form. That being so, the judgment of the lower Court must be confirmed and the appeal dismissed with costs.
3. I agree. I only wish to say that the Indian Railways Act does not lay down that the railway company should be compelled to carry goods at its own risk and no such liability can, in my opinion, be imposed upon it by the wording of the risk note itself. The risk note of course is designed to cover goods of all classes and the reference to alternative rates applies to those classes for which alternative rates exist at railway risk and goods are accepted at those rates, The mere fact that these words occur in the risk note would not operate to impose a liability on the railway company which is not imposed by the statute itself.