1. The plaintiff in this case sued the G.I.P. Railway Co., for the value of the goods which consisted of goat skins consigned by him at Ahmednagar on the 11th July, 1921, for despatch to Poona, It appears that instead of the bags containing the goat skins some other consignment of 9 bags containing sheepskins reached Poona. These 9 bags were offered to the plaintiff, but he naturally declined to accept them. Ultimately the Railway Co. sold these 9 bags containing sheep-skins and realised Rs. 140.
2. The plaintiff's claim was for Rs. 932-8-0 as representing the value of goods lost through the negligence of the Railway Company. The Company put the plaintiff to the proof of the value of the goods, and also contended that on account of the non-observance by the plaintiff of Rule 34-A the Company was not liable. There was some confusion in the identification and the marking of the goods at Ahmednagar. As a result of these pleadings the following four points were raised for decision:
1. Were plaintiff's bags correctly marked 48?
2. Were bags marked 48 not plaintiff's?
3. What is the value?
4. Whether suit is not tenable as contended by defendant.
3. The learned Judge found that the suit was maintainable. The learned Judge also found that the plaintiff's bags were not marked 48, and he also found that the bags marked 48 were not the plaintiff's bags. In effect it was found that the bags offered to the plaintiff at Poona were not the bags consigned by him at Ahmednagar. The learned Judge also found that this was due to the negligence of the servants of the Railway Company. But the learned Judge found that the plaintiff did not observe the requirements of Rule 34-A, and therefore, he was not entitled to the relief claimed. But he proceeded to award a sum of Rs. 140/-minus freight and tax to the plaintiff, which was the sum realised by the Railway Company from the sale of the 9 bags, which were received at Poona, and which contained sheep-skins.
4. The result reached by the learned Judge is really anomalous, and cannot be accepted as being in accordance with law. If the findings of the learned Judge on the main questions of fact are accepted, it is clear that the defendant Company received the consignment of 9 bags at Ahmednagar, and they never delivered that consignment to the plaintiff at Poona. Therefore it seems to us that the defendant Company was liable to pay to the plaintiff the value of the goods. We do not think that rule 34-A can help the defendant in the present case, because if the sender does not comply with the rules, the consignment will be booked as ' contents unknown', and the Railway will not be responsible for the number, condition and description or contents of such consignment. The learned Judge has found that the noting of the words contents unknown' was not properly done, and the loss of goods was due really to the negligence of the servants of the Railway Company at Ahmednagar.
5. Under these circumstances assuming without deciding that the rule is other wise a valid and binding rule it is difficult to hold that the Company is absolved under that rule from liability under the Risk Note to pay for the value of the goods. It is not contended before us on behalf of the Railway Company that having regard to the terms of the Risk Note A, and the facts as found by the learned Judge, the liability could be disputed. Unfortunately the learned Judge has not found what the value of the goods was. Point No. 3 was raised and the finding is that the value is Rs. 133-2-0. That really does not represent the value of the goods consigned by the plaintiff to the Company. That is only the value of the goods which admittedly were not the goods of the plaintiff.
6. The lower Court should really find what the value of the goods was, and pass a decree for that amount. We make the rule absolute, set aside the decree and send back the case for disposal in accordance with this judgment. Parties to be at liberty to adduce evidence on the question of valuation. The defendant to pay the plaintiff's costs of this application. Costs of the suit to be dealt with by the lower Court.