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East Indian Railway Vs. Firm Makhanlal-bindesri Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All605; 74Ind.Cas.814
AppellantEast Indian Railway
RespondentFirm Makhanlal-bindesri Prasad
Cases ReferredEast Indian Railway Co. v. Kishen Lal Tikhanmal
Excerpt:
railways act (ix of 1890), section 77 - short delivery--risk note, form b--'loss', proof of. - - 3. in two cases of this court it has been held that in cases of short deliveries like this the railway are not entitled to setup the risk. this case was tried in the small cause court, and the view taken by the learned judge of the court below was that the plaintiffs had distinctly stated that their case was one of non-delivery......sent. out of these only two were delivered at allahabad and one cask was not delivered. hence: the present suit.2. the defence pleaded by; the railway company was that section 77 of the railways act, ix of 1890, and the risk note which was in form b barred the suit.3. in two cases of this court it has been held that in cases of short deliveries like this the railway are not entitled to setup the risk. note unless it was shown that the less or the cask was due to a theft from a running train or some such cause. this case was tried in the small cause court, and the view taken by the learned judge of the court below was that the plaintiffs had distinctly stated that their case was one of non-delivery. the defendant railway company did not in the present case even attempt to prove that the.....
Judgment:

Gokul Prasad, J.

1. This is an application in revision, arising out of a suit for damages for non-delivery of part of a consignment made over to the Railway at Howrah for transport to Allahabad. Three casks of coconut oil were alleged to have been sent. Out of these only two were delivered at Allahabad and one cask was not delivered. Hence: the present suit.

2. The defence pleaded by; the Railway Company was that Section 77 of the Railways Act, IX of 1890, and the Risk Note which was in Form B barred the suit.

3. In two cases of this Court it has been held that in cases of short deliveries like this the Railway are not entitled to setup the Risk. Note unless it was shown that the less or the cask was due to a theft from a running train or some such cause. This case was tried in the Small Cause Court, and the view taken by the learned Judge of the Court below was that the plaintiffs had distinctly stated that their case was one of non-delivery. The defendant Railway Company did not in the present case even attempt to prove that the goods had been lost as, aforesaid, and it is only after they had done so that the plaintiffs could be asked to prove that the loss was due to any fault of the Railway Company which would make them liable. The learned Judge has referred to several cases. This view, however, was taken in the case of Secretary of State for India in Council v. Jiwan and Abdullah 71 Ind. Cas. 609 : 21 A.L.J. 220 : 45 A. 380 : (1923), A.I.R. (A.) 426 and in the unreported case in Civil Revision No. 23 of 1923 Now Published as East Indian Railway Co. v. Kishen Lal Tikhanmal, 73 Ind. Cas. 986 : 21 A.L.J. 438 : 9 O. & A.L.R. 531 : 45 A. 530--[Ed.] decided so recently as the 13th of April 1933 by Mr. Justice Daniels. I am in full accord with these two decisions. It is not necessary to go into the cases decided by other Courts. I dismiss this application in revision with costs.


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