S. Barman, J.
1. Does over-carriage of a partway wages containing suit consignment by the ordinary route accord-ing to ordinary train arrangements, amount to deviation on the facts and in the circumstances of this case in the main question involved in this appeal. The plaintiff is the appellant. The plaintiff filed the suit against the South Eastern Railway for recovery of Rs. 2867-6-9 for short delivery ot goods consigned in the circumstan-ces hereinafter stated.
2. On March 13, 1957, 338, tins of (sic) were booked at BanKura Railways Station (West Bengal) to be delivered to the plaintiff at Jaiasow (sic) district in Orissa). On March 19t 1953 the whole wagon, containing the said consignment reached (sic) the wagon, however, was not detached from the goods train. it is said that the driver and the guard refuses to detach the wagon on the plea that their duly, was (sic) and their relievers had not come. Any wan, the (sic) puted fact is that the wagon was carried up to (sic) rak. on March 23, 1957 the wagon returns to (sic) sore. On the same date delivery was made to the plaintiff. The plaintiff's case Is that there was a total shortage of 33 maunds, 33 seers and 12 chhataks vlaued at Rs. 2867/6/-. It is alleged that 39 tins suffered joint bursts and partly emptied; and 57 tins which also suffered joint bursts were entirely emptied with the conse-quence that the plaintiff suffered damages as (sic) The plaintiff filed this suit for recovery of damages. The Railway's defence is mat it was due to want of space at Jalasore on March 19, 1957 that the wagon could not be detached from the goods train; that the consignment was booked at owner's risk; that the packing condition under the Tariff Rules was not complied with in that the tins were 'old and used and weak soldering made to leakage in transit' as endorsed on the back of the ran-way receipts at the time of booking of the goods at (sic) kura Railway Station.
3. The trial court decreed the suit in favour of the plaintiff on the finding to the effect that the wagon-could not be detached at Jalasore as the guard was over driver refused on the plea Wat their duty hour was over that the over-carrying of the suit wagon is as good as deviation from the route; that there was negligent of the part of the Railway. In appeal, trre learned lower appellate Court reversed the decision of the trial court and dismissed the plaintiff's suit on the finding that there was no negligence on the part of the railway. The con-current findings of both the courts are that the passage condition under the Tariff Rules was not property complied with and further that the goods were consigned at owner's risk rate. The plaintiff has filed this second appeal against the decision of the learned lower appellate Court who dismissed the suit.
4. The point is : Was there deviation as alleged the plaintiff appellant's contention is that over-carnage itself amounts to deviation and the railway is liable tor negligence and misconduct. me finding of the learned lower appellate Court, however, after considering the entire evidence is this :-- .. as to why the wagon containing the goods was not detached at jaiasore but .instead was over-carried to Bhadrak and from there it was sent back to Jalesore afterwards, there is evidence of D. W. 4 clerk in the Control Office to the effect that since at Jalesore there are 3 lines only, the goods train in which this consignment was being carried could not be allowed to stay there tor a long time since at that time two passenger trains were to cross each other at laiasore passenger trains were to cross also to come from Knaragpur side towards Bhadrak and was to just pass through Jaiasore without halting there. Therefore, goods train No. 503 in which the suit consignment was carried, was ordered by the Controller, of trains to proceed towards Bhadrak.' Thus, in the present case, it is not that goods were taken across a different route. When, however, the contract is to relieve the railway from liability tor loss, damages, delay or detention of or to such goods during transit, the exemption is only from liability during the transit and when once the goods are diverted from that route, the protection ends; change from the ordinary route, therefore, puts an end to the protection given by law. It cannot be disputed that where the railway deviate from the route by which it proposes to carry the goods any the deviation was not imperative, the railway administration forfeits the protection afforded to them. Every customer dealing with the railway is bound not only by the ordinary route but also by the ordinary train arrangements according to which it professes to carry.
5. in the present case, for the reason stated by the learned lower appellate court quoted above, the over-carriage, -- which was unavoidable, -- by direct line of the wagon containing the suit consignment from Jalesore to Bhadrak in the circumstances, could not amount to 'deviation' in the sense in which the word is used for fixing the responsibility of the railway. The carrying of wagon from the station of destination Jaiasore up to Bhadrak was due to operational reasons as the clerk in control office deposed. Such carrying was imperative as it became necessary in due course of ordinary train arrangements. That apart, in this particular case, no particular route was contracted tor under the contract. The station of destination (Jaiasore) and the station up to which the wagon was carried (Bhadrak) are both in the same route. It is not that the wagon was over-carried by a different route.
6. The plaintiff appellant relied on certain decisions on deviation. Those cases are all distinguishable tram the present case on facts. In the cases, cited on behalf of the plaintiff, the route on which the consignment was to be carried was expressly or impiiedly mentioned in the contract itself. in common parlance, deviation means change of line and not over-carnage. Where the contract itself indicates the route expressly of at least impiiedly, the Company would go outside we terms of the contract and cannot find a claim for exemption on the terms of that contract, if the railway takes the goods off the ordinary route and damage results due to departure therefrom.
7. On the tacts and in the circumstances of the present case, I am of opinion that there was no deviation as alleged.
8. under Section 74-C of the Railway Act, the goods having been tendered to the railway administration tor carrying by railway at owner's risk rate, the railway is not responsible tor the alleged loss or damages to such goods, because the plaintiff tailed to prove that such loss or damages was due to negligence or misconduct on the part of the railway administration or any of its servants. It it evident that the goods were not propeny packed as required by the Tariff Rules. That apart, the tins were old and used and they were liable to leakage in transit because of weak soldering. These defects in packing were noted on the back of the Railway receipts at me time of booking the goods at Bankuro Railway Station. It is evident that the loss or damage' to the goods was due to defective packing of the goods. The loss or damage was not due to the carrying of the wagon from Jale-sore to Bhadrak Station and back.
9. In this view of the case, I find no reason to Interfere with the finding of the learned lower appellate Court on facts.
10. The decision of the learned lower appenata Court is upheld. This appeal is dismissed with costs.