1. This is an application for revision of a decree passed by the Court of Small Causes at Farrukhabad. The facts found are that on March 26, 1913, the plaintiffs delivered 75 bags of potatoes to the Bombay, Baroda and Central India Railway at Farrukhabad, to be carried to Hinganghat on the Great Indian Peninsula Railway and there delivered to the consignors or to their order. The bags were duly carried to Khandwa Junction, where they were put into an empty waggon belonging to the Great Indian Peninsula Railway. They should have been taken out of this waggon or the waggon taken off the train at the Wardha Junction. But this was not done and the bags were carried on to Nagpur where they remained unno iced by the Railway Authorities from April 8 to April 25. When the bags were discovered they were despatched from Nagpur and reached their destination at Hinganghat on April 28. On examination at. Hinganghat they were found by the Railway Authorities to be in a stinking condition. They were sold by public auction on April 29 for Rs. 30. No previous notice was given to the plaintiffs or their agents or to any person in possession of the railway receipt by the Railway Authorities. The goods were carried under what is called risk note form H, under which in consideration of the consignment being charged at a special reduced or owner's risk rate the consignors undertook to hold the Bombay, Baroda and Central India Railway Administration, and all other Railway Administrations working in connection therewith over whose Railways the goods might be carried in transit from Farrukhabad to Hinganghat, harmless and free from all responsibility for any loss, destruction or deterioration of or damage to the consignment from any cause whatever except for the loss of the complete consignment or of one or more complete packages forming part of the consignment due either to the wilful neglect of the Railway Administration or to theft by or due to the wilful neglect of its servants.' The remainder of the risk-note is not material for our present purpose. The Judge of the Small Cause Court, as I read his judgment, was of opinion that there had been a loss of the complete consignment within the meaning of the risk-note; but that such loss was not shown to be due to the wilful neglect of the Railway Administration or its servants within the meaning of the risk-note, and that even if the damage to or deterioration of the goods could be held to have been due to their wilful neglect, the loss of the complete consignment was not due to such neglect but was due to the sale of the goods without notice to the plaintiffs. The learned Judge gave the plaintiffs a decree for Rs. 170-10-0, the amount paid by them to the railway on account of freight, being of opinion that there had been a total failure of consideration and he also gave them a decree for Rs. 30, the amount realized by the sale of the goods. In support of this application for revision it is contended that there was a loss of the complete consignment within the meaning of the risk-note and that that loss was dueto the wilful neglect of the Railway Administration or its servants. On behalf of the Railway it is contended that the word loss in the passage underlined above means disappearance and not damage of any kind. If this contention is sound it is clear that the claim against the railway was rightly dismissed, for the goods did not disappear owing to the neglect, wilful or otherwise, of the Railway Administration or its servants.
2. Assuming, however, in favour of the plaintiffs that the word loss bears the meaning attributed to it by the Court below, I am still of opinion that the Railway Administration is protected by the risk-note. It has been found by the Court below, and I think rightly found, that the failure of the Railway Authorities to tranship the bags at the Wardha Junction was due to a mere mistake. There is nothing to show that the Railway Authorities intentionally or purposely omitted to tranship the bags and, therefore, it is impossible to hold that the Railway Authorities were guilty of wilful neglect within the meaning of the risk-note. It would be a misuse of language to describe the action of the Railway Authorities in selling the goods without notice as wilful neglect. They committed a wrong for which they might, no doubt, be held responsible, but it is impossible to hold that in selling the goods they were guilty of wilful neglect. I am, therefore, of opinion that the Railway Authorities are protected by the risknote. This application is dismissed with costs.