1. This is an appeal by the East Indian Railway Company, defendant No. 2, arising out of a suit for compensation for loss of sugar and for damages. It appears that on the 15th of May 1919, 125 bags of sugar No. 6713, invoice No. 2 were despatched from Kantapukar station on the East Indian Railway to Gwalior station on the Great Indian Peninsula Railway. A person said to be named Chhote Lal, purporting to act on behalf of the consignor, despatched these goods at Kantapukar station. The wagon containing the consignment was transferred at Manikpur and arrived at Gwalior on the 28th of May 1919. It is the case of both the parties that when the wagon arrived at Gwalior the seals were found intact, indicating that there had been no pilfering in transit. The goods were unloaded and placed in the goods shod for some 2 days before they were delivered to the plaintiff. At the time of delivery, however, it was found that many of the bags were out and a good part of the sugar had disappeared and there was a shortage of about 83 maunds and odd in quantity.
2. The plaintiff claimed Rs. 1,841-6-0 as compensation for the sugar lost and Rs. 240 as interest and damages on the said amount.
3. The pleas taken by the two Companies in substance were that the goods despatched had been defectively packed so as to be liable to damage, leakage or wastage in transit, and the Risk Note Form A had been taken. They had also been despatched at a reduced rate under Risk Note Form B. It was, therefore, pleaded that under no circumstances the plaintiff was entitled to any damages for the loss inasmuch as no complete package had disappeared, and that there was no wilful negligence on the part of any of the Railway Companies.
4. At the trial the plaintiff appears to have disputed the genuineness of the Risk Note Form A, Risk Note Form B as well as the forwarding note, which were relied upon by the Railway Companies.
5. The learned District Judge, the Resident of Gwalior, came to the conclusion that it was not satisfactorily established that Risk Note Form A had been actually executed to the knowledge of the consignor, or with his authority, but that having regard to the fact that lower rates were charged it should be presumed that the goods were despatched under Risk Note Form B. As to the forwarding note he was rather suspicious as to whether some entries in it had not been made subsequently. He further came to the conclusion that there was wilful negligence, or theft, or both, on the part of the servants of both the defendant Companies. He found it difficult to attribute how much of the loss was due to the wilful negligence or how much to theft on the part of the servants of the two Railways or to apportion the liability for the negligence and theft between them. Holding that under the circumstances the defendant Companies were not at all protected, he finally passed a decree in these terms:
I give a decree in favour of the plaintiff against the two Railway Companies jointly i.e. in equal shares for a sum of Rs. 1,675 interest on the sum at 6 1/2 per cent. from the 20th May 1919 to date with costs.
6. The East Indian Railway Company has filed an appeal impleading the G.I.P. Railway Company as one of the respondents. The latter Company has filed cross-objections against the decree.
7. The first point which we have to consider in appeal is the terms of the contract under which the goods were despatched from Kantapukar station.
8. We are of opinion that the learned District Judge is not quite correct in thinking that it is not established that the goods were despatched under Risk Note Form A. As a matter of fact we find that in the notice which was sent on behalf of the plaintiff on the 19th August 1919 to the Agent, G.I.P. Railway it was clearly admitted that 'the execution of the Risk Note Form A could not be denied.' This original document had been produced and was admitted at the trial by the plaintiff's Vakil. It was also further admitted in that notice that there was a remark made on the Railway Receipt that bags were 'slack in condition'. Risk Note Form A is only executed when the articles tendered for carriage are either already in a bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit. It is clear to our mind, therefore, that it must have been noticed at the place of despatch that the goods were either in a bad condition or defectively packed and it was on that account that the Risk Note Form A was taken. In order to prove the Risk Note Form A the plaintiff has produced one of the Railway clerks at the station of despatch who attested this document on the date it bears. He proves that he signed it on that date. It is true that no attempt was made on behalf of the defendant Companies to summon Chhote Lal who purports to have signed it on behalf of the consignor. At the same time no attempt was made on behalf of the plaintiff also to produce this person, who must be the agent of his consignor, to deny his signature on this document. The plaintiff is a consignee. He had to admit that the goods were consigned by Messrs Bhagat Ram Shiva Pratap and must have been despatched either by the proprietors or by some one acting as their agent. Great reliance, however, is placed on the circumstance that the railway receipt which must have been returned to the G.I.P. Railway on delivery has not been produced. At the trial it was suggested that it must have been destroyed after the expiry of six months. Whether this is or is not a true explanation we are unable to say. The fact however, remains that the railway receipt which was a very important document in the case in dispute is not forthcoming. In spite of this, however, we are of opinion that having regard to the admission of the plaintiff himself in his previous notice it must be accepted that the goods were despatched under risk note Form A and that the Form which has been produced in this case and which was attested by the witness Serish Chandra Biswas is the document which was signed by the person who gave his name as Chhote Lal and who really tendered the goods for despatch to Gwalior.
9. The other disputed document is risk note Form B. It also purports to bear the signature of the same person Chhote Lal. We have compared the signatures on Forms A & B as permitted by Section 73 of the Indian Evidence Act and we are satisfied that both these documents bear the signatures of one and the same person. Furthermore form B also is proved by the witness Biswas in the same way i.e., that it was attested by him on the date it purports to boar and was written at Kantapukar station.
10. As regards the forwarding note the main point urged against its genuineness is the entry under the column 'Condition of goods' which is as follows:
Gunny packing weak and strained at several bags also liable to sweat in transit due to inherent moisture. Several bags torn, resewn and badly slack condition.
11. This purports to be in an ink different from the ink with which the entries above referred to were filled up. But the ink, as pointed out by the learned judge, is similar to the ink used in the marginal notes as to the condition contained in form A. We are of opinion that this entry is by no means suspicious. When the plaintiff admitted that the form A was executed and when we are satisfied that form A could never have been executed unless the goods were in a bad condition or defectively packed, there is really no suspicion in finding an entry to that effect in the forwarding note. The forwarding note also purports to have been signed by the same person Chhote Lal whose signature tallies with the signatures on forms A & B. Although the defendant Companies; have not produced better evidence which they could have produced, yet we are satisfied that no good ground is shown for rejecting the genuineness of the three documents. We may point out that the learned District Judge himself presumed that the form B was a genuine document.
12. A Railway Company, when entrusted to carry goods from one station to another, has, under Section 72 of the Railways Act the liability of a bailee. The Company can however contract itself out of that liability by a special contract in one of the forms recognised by Government. Risk Note B is one of those forms. Under this risk note the consignor holds the Company harmless and free from all responsibility for any loss, (destruction or deterioration of, or damage to the said consignment, from any cause) whatever, except for the loss of a complete consignment, (or of one or more complete packages forming part of a consignment) due either to the wilful neglect of the Railway Administration, or to theft by or to the wilful neglect of its servants, transport agents or carriers employed by them before, during and after transit, over the said Railway or other Railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignment, provided the term 'wilful neglect' be not held to include fire, robbery from a running train or any other unforeseen event or accident.
13. The plaintiff had suggested that some of the bags were found missing. The finding of the Court below is against the plaintiff and no serious attempt has been made before us to challenge that finding. 'We must therefore accept that 125 bags did arrive at Gwalior, although some of them had been cut or were broken and their contents had been partially removed or had disappeared. All the same it is to be conceded that under the risk note form B the Company was held free from all responsibility for any loss, destruction or deterioration or damage to the consignment except when there was a loss of a complete consignment or one or more complete packages forming part of the consignment. It follows therefore that when all the bags did arrive and none of the bags were missing the company cannot be held liable even though it be found that the bags had been damaged owing to the wilful neglect of the Railway Company. It is, therefore, unnecessary for us to go into the question in what way the damage was caused to the sugar. We are satisfied that under the terms of the contract which were entered into between the parties in consideration for accepting lower rates the defendant companies were free from responsiblity unless a whole package had been lost.
14. The learned Counsel for the defendant--appellant has however urged that the risk note was merely an indemnity bond signed by the consignor for the benefit of the Company and could not affect the rights of the consignee, who was entitled to receive the consignment. The contention is that he must have a decree against the Railway Companies, which however, may have their remedy against the consignor. He relies in support of his contention on the case of The Rohilkhand and Kumaun Railway Co. v. Ismail Khan, 29 Ind. Cas. 207 : 19 A.L.J. 417. We are unable to accept this contention. The case relied upon was quite different inasmuch as there the loss had been caused to the plaintiff by refusal of delivery after the consignment had arrived and a subsequent unjustified sale.
15. It is next contended that the position of the Railway Companies was that of a warehouseman and they were liable for the loss occasioned after the consignment had arrived at Gwalior. In support of this contention reliance is placed on the case of Bengal & North Western Railway Co. v. Mulchand 68 Ind. Cas. 1000 : 42 A. 655 : 18 A.L.J. 764 : 2 U.P.L.R. (A.) 268. We are tumble to accept this contention either. The contract of the Railway Companies as pointed out in that case at p. 660, was not only to carry the goods but also to deliver them. It follows that the custody of the goods with the carriers must extend beyond the period of their transit. Risk Note form B also uses the expression 'during and after transit'. We are satisfied that the position of the Railway Companies as carriers continued till the date of the delivery to the plaintiff. After the arrival of the goods at Gwalior and before delivery they never either expressly or impliedly agreed to hold the custody of the goods as wareshousemen. Their liability therefore cannot be extended.
16. In this view of the matter the suit was wrongly decreed in favour of the plaintiff and against the Railway Companies.
17. The G.I.P. Railway has not filed an appeal against the decree but has preferred a cross-objection under Order XLI, Rule 22, Civil Procedure Code. A preliminary point is taken on behalf of the plaintiff--respondent that such a cross-objection does not lie. It is strongly urged that the decree having been against the G.I.P. Railway Company it was their duty to appeal from it against the plaintiff and not merly file a cross-objection against the co-defendant appellant. It is not necessary for us to consider whether under the provisions of Order XLI, Rule 22, which differs slightly from the old Section 567, a co-respondent can file cross-objections against another co-respondent. The decree passed by the learned District Judge in favour of the plaintiff against the two Railway Companies proceeds on a common ground, and the G.I.P. Railway Company can be transposed from the array of the respondents to that of the appellant, as suggested by the Counsel for the two Companies.
18. The position then is this. There was a decree for Rs. 1675 with costs passed jointly against both the defendants, who were to be liable in equal shares. One of the defendant companies, namely the East Indian Railway, appeals from that decree and the relief claimed by it is that this Court be pleased to reverse the decree of the lower Court so far as it is against the appellant with costs, or grant such further relief as it deems fit. This appeal, as originally laid, was directed against the decree so far as it affects the East Indian Railway Company and was valued at Rs. 837-8-0 i.e., half the amount decreed. The G.I.P. Railway challenges the decree on the same ground. It has paid the Court-fee on its half share of the total liability imposed by the decree. The East Indian Railway has paid the Court-fee on the remaining half share. We direct that the G.I.P. Railway Company be transposed from the array of respondents to that of the appellant, and proceed to determine the appeal on the ground common to both. The necessary alteration will also be made in the valuation given in the memorandum of appeal. The whole case is thus before us.
19. We allow the appeal and set aside the decree of the Court below against both the defendants, but considering the unsatisfactory way in which the case has been conducted, the omission of the Railway Companies to produce the Railway receipts and the faulty manner in which the consignor had packed his goods, we direct the parties to bear their own costs throughout.