P.C. Banerji, J.
1. This and the connected Revision No. 127 of 1916 arise out of a suit brought by the plaintiff against the East Indian Railway Company for damages for the destruction of four Orpington hens which had been consigned to the Railway at the Allahabad Station for despatch to Kasganj. The hens were received by the parcels clerk at Allahabad, but when they reached Kasganj they were found to be dead. The consignee refused to take delivery and thereupon the present suit was brought by the plaintiff, the consignor, for recovery of damages. The suit was resisted on the ground that there was no negligence on the part of the Railway; that there was a risk note, and that it was the duty of the plaintiff to have ascertained what arrangements the Railway could make for the despatch of the birds. The Court below has found that there was negligence on the part of the Railway, but it made a decree for Rs. 8 only on the ground that the plaintiff had not declared the value of the birds which were birds of a delicate kind imported from England, and were of the value, according to the plaintiff, of Rs. 90. The plaintiff has made this application claiming that the Court below ought to have awarded a larger amount of damages. In the connected application, it is contended on behalf of the Railway, that there was contributory negligence on the part of the plaintiff; that it was not the duty of the Railway Ad ministration to point out the most advantageous route for the despatch of the articles and that the risk note obtained by the Railway from the agent of the plaintiff relieved the Railway of liability for the loss of the articles.
2. Section 72 of the Railways Act, 1890 provides that 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 152 and 161 of the Indian Contract Act. This liability is limited if there is what is called a risk note' signed by or on behalf of the person delivering the animals or goods. In the present case it has been found that the risk note which the plaintiff signed had nothing to do with the articles consigned. The clerk of the Railway at Allahabad Station obtained from an illiterate coolie, who had carried the hens to the Railway Station for despatch, a risk note in form B which limited the liability of the Railway. The Court below has held that this note was not properly obtained and not being a note signed by the plaintiff or on his behalf, it could have no effect as egards the liability of the Railway. I think on this point the view taken by the Court below is correct. It is clear from the judgment of that Court that the coolie from whom the note was taken, knew nothing of what it contained. It was in fact filled up by the Railway clerk himself, so that it cannot be said that a note of this description relieved the Railway of the' responsibility which lay on it under the provisions of the section. The position of the Railway was that of a bailee and it was bound, under Section 151 of the Contract Act, to take such care of the goods as a person of ordinary prudence would do in respect of his own property. In the present instance the birds, which were in a crate, were put in a van which was closed on all sides, the result being that at the time of the year when the birds were, being carried the heat from which they suffered in the van caused their death. This clearly indicates that the Railway did not take such care of the birds as a prudent man would have done of his own property under the circumstances. The Railway was, therefore, liable to make compensation to the plaintiff. The omission to declare the value of the goods has this effect that under Section 73 of the Act, the Railway could not be rendered liable for more than Rs. 10 per each head of the animals carried. The omission to declare the value would not disentitle the plaintiff from obtaining substantial compensation not exceeding Rs. 10 per head. If the Railway had no means of safely carrying the birds the consignment should not have been accepted at the time when it was brought to the Railway Station or it should have been kept at the Allahabad Station until it could be sent properly protected in a van such as would not in the ordinary course bring about the destruction of the birds. The Court below was, I think, right in holding that the death of the birds was due to the negligence of the Railway, and it cannot be said that the plaintiff was guilty of any negligence. In view of the provisions of Section 73 of the Act, the Court below would have been justified in making a decree for Rs. 40 for the four hens which died while in the custody of the defendant Company. The value of the hens was higher, but as I have pointed out above, the plaintiff could not get a larger sum than lis. 40 for the four hens.
3. The result is that I allow the application of the plaintiff so far that I vary the decree of the Court below by making a decree in favour of the plaintiff for Rs. 40. I direct that the parties do pay and receive costs in both Courts in proportion to failure and success. The other application which has been filed by the Railway Company will be dismissed.