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G.i.P. Ry. Co. Vs. Chakravarti, Sons and Co. and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Cal170
AppellantG.i.P. Ry. Co.
RespondentChakravarti, Sons and Co. and ors.
Cases ReferredKirley v. Great Western Raihvay
- .....these goods for carriage to the defendants' railway. when he did so deliver the goods, the railway company took the view that the cases were damaged ands defective. gangaram punaji agreed and signed the risk note in form, a. as regards the second consignment, risk notes, both in form a and form b were signed by gangaram punaji. so far as the risk note b is concerned, it is clear that the rate of freight would be less; so far a the risk note in form a is concerned, it. does not appear that the rate of freight, would be less, though in such circumstances the consideration for which bisk note a is executed is that it obviates the expense of putting the packages into proper condition before consignment and also that the sender gains in the matter of weight upon which freight has to.....

Rankin, C.J.

1. This is the defendants' appeal in a suit brought by consignees of of goods which were dispatched by the defendants' railway from the Victoria Terminus in Bombay to Kushtea a station on the E.B. Railway. Two consignments of yarn are involved in the case. These goods had been sent out from. England and were consigned from Bombay to Kushtea without being repacked. It appears that the yarn was contained in wooden cases and these wooden cases had gunny coverings as to which there is certain evidence that the coverings were old and torn. On the arrival of the goods, at Kushtea, it was found that, as regards, the first consignment, certain of the goods were damaged and that, as regards the second consignment, certain of the goods-were damaged and certain parts of the contents had been lost.

2. The firm of Mr. P.N. Mehta & Co. were sending these goods to the plaintiffs. P.N. Mehta & Co. had a manager or managing director Mr. Parekh. It is quite clear that when the carters brought the goods to the railway station, some person in charge of the goods employed an individual calledi Gangaram Punaji to act as muccadam,. that is to say, to be the forwarding agent dispatching the goods on the railway. The consignor-defendants say that the muccadam whom they were in the habit of employing was another individual altogether and they say that they gave no authority to anyone to get Gangaram. Punaji to do any work for them. It is no way explained how the carter or foreman came to employ Gangaram Punaji or owing to what circumstances or under what instructions Gangaram Punaji was. employed : but it is quite clear that he was the person who, in fact, delivered these goods for carriage to the defendants' railway. When he did so deliver the goods, the Railway Company took the view that the cases were damaged ands defective. Gangaram Punaji agreed and signed the risk note in form, A. As regards the second consignment, risk notes, both in form A and form B were signed by Gangaram Punaji. So far as the risk note B is concerned, it is clear that the rate of freight would be less; so far a the risk note in form A is concerned, it. does not appear that the rate of freight, would be less, though in such circumstances the consideration for which Bisk note A is executed is that it obviates the expense of putting the packages into proper condition before consignment and also that the sender gains in the matter of weight upon which freight has to be charged. In this case, what happened was that these goods were damaged in the process of carriage and the suit was brought against the several railways Concerned in the carriage. Ultimately, it has been decreed against the appellant Railway, only the C.I.P. By. Co., which was the railway to whom the goods were banded over.

3. The first question which arises is this. It is said that Gangaram Punaji had no authority from the consignor and that 4iis signature does not bind the consignor. It is said, secondly, that he was a man who could, not read English and that it as not shown whether he knew what he was signing. As regards the Bisk note A, it is said that the learned Judge has found as a fact that the goods were in proper packing cases, that there was no defect in the packing, and that the defendant Railway can therefore take no advantage from the risk note in Form A.

4. These questions turn upon Section 72, Indian Railways Act (9 of 1890). By that Act, the reponsibility of a railway company is prima facie the responsibility of a bailee under Sections 152 and 161, Indian Contract Act, but agreement may be made limiting that responsibility and:

an agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and is otherwise in a form approved by the Governor General in Council.

5. The phrase, 'the person sending or delivering to the railway administratioa' is an important phrase in the Indian Railways Act. It appears in more than one section in one form or another. Its equivalent is to be found in Section 58 and also in Sections 73 and 75. As a matter of fact, it would appear that the phrase is taken from Section 7, English Railway and danal Traffic Act 1854 where the words of the last proviso are:

Unless the same be signed by him or by the person delivering such animals, articles, goods or things respectively for carriage.

6. Now, it is quite clear that a railway company, when goods are tendered to it for carriage, cannot hold an inquest as to the right of the person delivering to deal with the goods, the property in the goods, the authority given by the owner to 'the person presenting the articles for carriage; and when one comes across the phrase the person sending or delivering to the railway administration' it is clear that this fact is being recognized by the statute. Under the same words in England, no difficulty has apparently been found. I find in English textbooks that this matter is treated as clear upon the fact of Section 7 of the Act of 1854. I find, for instance in Disney's Law of Carriage by Railway, 6th Edn. at p. 37:

The consignor, therefore, may be bound not only by the signatura of himself or his agent, but also by the signature of the person who delivers the goods to the Company whether, in fact, that person had authority to sign or, not.

7. In Alan Leslie's Law of Transport by Railway, the matter is put thus : The section further provides that the contract may bersigned not merely by 'the party' but also by 'the person delivering (the goods) for carriage.' Such person has, therefore, not merely such authority to bind the sender as naturally arises from his position as agent, but an absolute statutory authority to bind him, and it seems that, prima facie, ha has authority to sign any form of contract.

8. The English oases in which this matter has been more specifically dealt with are three in number. Kirby v. G.W. Ry. Co. [1868] 18 L.T. 658, Foreman v. G.W. Ry. Co. [1878] 38 L.T. 851, and Aldridge v. G.W. Ry. Co. [1864] 15 C.B.N.S. 582. There can, therefore, be no doubt that when Gangaram Punaji tendered these goods to the Railway Company he had, so far as any question of contract with the Railway for carriage is concerned, power under the statute to sign the risk notes so as to bind the consignor. If, of course, the question were not a question upon a contract of bailment or affreightment, but this suit were a suit by a person claiming in detinue or trover agaist the railway company for having in possession goods belonging to the plaintiff without his authorization, different principles would apply. That is not the nature of this suit which is a suit on the contract by the consignees.

9. The next question is this : It is said that because Gangaram Punaji signed not merely his own name, but his own name with the addition of 'agent for P.N. Mehta & Co.' that vitiates the contract I am of opinion that there is no reasonable ground for this contention. The risk notes in this case were signed by the person delivering the goods within the 'meaning of the section.

10. So far as regards, risk note A, there is a finding by the learned Judge that 'the cases were in perfect good sound condition When they were booked.' It does not 'seem to me that the learned Judge has found that with regard to the coverings as distinct from the cases, but it must be reasonably clear that if, at the time of booking, the railway company was dissatisfied and the person delivering the I goods for carriage agreed that the condition of the packages was not satisfactory, it cannot afterwards be made matter of objections in a suit upon the contract that the packages were in good condition. A person cannot hold to a part of a contract and reject the rest unless there is statutory authority for so doing. In this particular case what have to be applied are the terms of Clause (b), Sub-section (2), Section 72, Indian Railways Act. The contract has to toe otherwise in a 'form approved by the Governor-General in Council.' In this case, the contract was in such a form. Whether any of the authorized forms are to be used, and if so, which is a matter left by the statute to the parties. In my judgment, it is not open in a suit of this kind to reject the terms of the risk-note in the manner which is contended for.

11. The teamed Judge, in dealing with this case, has committed himself to a certain amount of advice to railway companies and to a statement of the law which cannot in my opinion be accepted. Apart from holding that the railway company have to prove the authority of the person delivering the goods, he has gone on to say that the company must satisfy the Court that the person who signed it knew the terms of the contract and that the contract should be explained to him. He admits that this may be inconvenient, but thinks it necessary in law, when a contract is entered into by an ignorant person. The learned Judge in this respect is entirely mistaken. It is well held in England and the rule is the same in India that, if a person being illiterate signs a contract thinking it to be of a different character altogether from what it is in fact or if any misrepresentation is made to him as to what he is signing then no doubt the signature will not be binding on him but it is quite wrong to suppose that it is the legal duty of a railway company to see whether the person delivering the goods is ignorant or not or to see that he reads and understands before he signs.

12. It has been held in England that, if a consignor who can read sends an illiterate person to deliver goods to a railway administration and that person signs the contract, the contract so signed by that person is binding on the consignor as though he has signed it himself: Kirley v. Great Western Raihvay [1868] 18 L.T. 658. Apart from the question of authority to sign, the ordinary law of the land is applicable to a case of this kind and a very good statement of it can be found in Pollock and Mulla's Contract Act, in the notes to Section 13. Ignorant people are very commonly sent to deliver certain classes of goods and animals for transit by railway, e.g., grooms, drovers, carters. It is for the sender, if he is not satisfied of their competence, to give them instructions or assistance. It is quite wrong to treat a railway company, in a case of this kind, as though it were dealing with a pardanashin woman and taking a transfer of her estate, or as a person in a fiduciary relation to the consignor of the goods. In the present case Gangaram was professing to be a forwarding agent and might well be very familiar with railway forms in the vernacular translation.

13. The only other question that seems to call for observation is whether or not it is open to the defendants now to maintain that the plaintiffs have not proved under risk-note B, that the goods which were not delivered were lost. In my judgment, that is not open in this case because it is evident particularly from the judgment of the trial Court that it was in no way in dispute : indeed it could not well be in dispute that the goods which were short delivered having fallen out of damaged cases were goods lost : and the appellants on this point cannot be allowed to make a new case. In my judgment, the appeal should be allowed and the suit should be dismissed with costs in all the Courts as against the defendants-appellants. As regards the other defendants, the judgment of the learned District Judge will stand.

Mitter, J.

14. I agree.

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