Knox, Offg. C.J. and Aikman, J.
1. The Subordinate Judge of Meerut had before him an appeal in which his decree would be final, and entertaining doubt as to the construction of a document, which construction affected the merits of the appeal before him, he has referred a statement of the facts of the case for the decision of this Court, The document regarding the construction of which the Subordinate Judge entertained doubt is what is ordinarily known as a 'risk note,' in other words, it is a document purporting to limit the responsibility of the East Indian Railway Company, for the loss, destruction or deterioration of goods delivered to the said Company to be carried by railway. It is admitted by both the parties to the appeal that the agreement is in writing, signed by the persons sending the goods, and is otherwise in the form approved by the Governor-General in Council. It falls clearly within the provisions of Section 72 of Act No. IX of 1890, and no attempt is made by the learned vakil for the respondents to take the agreement out of the provisions of Section 72 of Act No. IX of 1890. Under this agreement the consignor, who had the option of forwarding his goods at an ordinary rate, in which case the Railway administration would have been responsible for their loss, elected, instead of paying that ordinary rate, to pay a lower charge, and in consideration of such lower charge agreed and undertook to hold the East Indian Railway Company harmless and free from all responsibility for any loss, destruction or deterioration of the said consignment from any cause whatever before, during or after transit over the said Railway. In the present case the goods delivered to the Railway Company for transit over their line were lost, and in spite of the agreement entered into by him, the consignor sued the Railway Company for damages on account of such loss. The doubt entertained by the Subordinate Judge is really a doubt as to whether such an agreement is morally defensible. He seems to consider it wrong on the part of the Railway Company to tempt the public to incur such risk, and he seeks to fortify his opinion by a ruling of this Court in Suntokh Rai v. East India Railway Co. N.W.P.H.C. Rep. 1867, p. 200. The risk note in that case was quite different. The law prevailing at that time was quite different, and the ruling has no bearing on the facts of the case.
2. The provisions of Section 72 of Act No. IX of 1890 are quite clear and free from all ambiguity, and it is not open to any Court to take a case out of the provisions of the Statute when the case clearly falls within those provisions.
3. Our answer to the reference is in the affirmative. The defendant Company is absolved from all liability, under the circumstances set out, for the non delivery of the plaintiff-respondent's goods. A copy of this judgment under the signature of the Registrar will be transmitted to the Court by which the reference has been made.