S.C. Lahari, J.
1. This appeal arises out of a suit for compensation for damage in respect of goods delivered to the East Indian Railway at Lalgola railway station for carriage to Cossipore Road station. The goods consisted of six consignments of jute comprising a large number of bales. The goods were made over to the railway on different dates between 3-6-1949 and 27-8-1949. When the goods arrived at the destination station, it was found that several bales of jute which formed part of the consignment were damaged by rain water. Short certificates were obtained by the consignee and after serving the usual notices under Section 77 of the Indian Railways Act and Section 80 of the Civil Procedure Code, the consignee brought the suit out of which this appeal arises for recovery of a sum of Rs. 3264-4-9 pies as compensation for the damage caused to the goods by the negligence of the Railway.
2. The defence taken by the railway in its written statement was to the effect that the consignments in question were loaded in wet and damaged condition which the railway could not detect at the time of loading which again was done by the sender, and consequently the defendant was not liable for damage caused thereby. Though that is the only defence taken by the railway on the merits of the plaintiffs claim, the defendant led evidence at the trial to prove that the different consignments were loaded straightway from the plaintiff's carts into watertight wagons and all the consignments were despatched to the destination station without any interference with the wagons. Consequently, the defendant contended before the trial court that there was no negligence on its part and as such the plaintiff's claim was not maintainable. Both the pleas were overruled by the learned trial Judge. The plaintiff's suit was decree-ed for a sum of Rs. 3264-4-9 pies and against that decree the defendant took an appeal. In the appellate court, besides the two points taken in the trial court, the defendant raised a third point, namely, that the liability of the railway would commence only from the dates when the railway receipts were granted to the plaintiff. It appears that the railway receipts were not granted on the same dates which appear on the forwarding notes. The Court of appeal below has given the dates as follows. Dates on forwarding notes: 8-6-49, 9-6-49, 9-6-49, 17-6-49. 25-6-49 and 27-8-49, the corresponding railway receipts bearing the dates: 8-6-49, 9-6-49, 9-6-49, 21-6-49, 25-6-49 and 31-8-49. On a comparison of these different dates, it would appear that railway receipts were granted on the same dates in respect of four consignments and there was a delay of about four days in respect of the remaining two consignments. It was argued on behalf of the railway that the liability really commences on the date on which railway receipts are granted and not on the dates which appear on the Forwarding notes. The court of appeal below rejected this contention and came to the conclusion that the railway administration really accepted the goods for despatch on the dates on which the weights of the different consignments were noted on the respective forwarding notes. The appellate court also found upon the evidence that the consignments lay on an uncovered platform at the Lalgola railway station and as it was the rainy season it was quite likely that the consignments got drenched in rain water between the time when it was accepted by the railway and the time when it was loaded into the wagons. Upon this finding, the court of appeal below dismissed the appeal and affirmed the decision of the trial court. Against this decision, the railway has brought this second appeal to this Court.
3. Mr. Bose appearing in support of the appeal has argued before us that under Rule 2 of the rules framed under Section 47(1)(f) of the Railways Act, goods will, in all cases, be at owner's risk until a receipt in the prescribed form has been granted and duly signed by an authorised railway servant. The argument is that there is no proof and no finding that there was any negligence on the part of the railway after the dates on which the railway receipts were granted in favour of the plaintiff. The difficulty in accepting this argument of Mr. Bose is twofold. In the first place, this plea was not specifically raised in the written statement. I have already said that the only plea raised by the railway in the written statement on the merits of the plaintiffs claim was that at the time when the goods were delivered to the railway, they were in a wet condition. If the railway had taken the plea that its liability commenced only on the dates which appear on the railway receipts, it might have been possible for the plaintiff to adduce evidence to prove the negligence on the part of the railway after those dates. As the point raised by Mr. Bose is not a pure question of law, but a mixed question of law and fact, we are afraid, we shall not be justified in allowing the appellant to raise this point in this Court.
4. The second difficulty in accepting the argument of Mr. Bose is that according to the decisions of this Court, Rule 2 of the rules framed under Section 47 of the Railways Act is inconsistent with Section 72 of the Indian Railways Act which defines the liability of the railway and is, therefore, ultra vires of the Railways Act. The decisions which were placed before us with great fairness by Mr. Bose himself are to be found in the case of Jalim Singh Kotary v. Secretary of State, ILR 31 Cal 951 and followed in the case of Moolji Sicka and Co. v. Bengal Nagpur Rly. Co. Ltd. : AIR1932Cal257 . Both these judgments are judgments by single Judges of this Court but the reasons given by the learned Judge (Stephen J-) in the earlier case are very convincing. In that case, the learned Judge has pointed out that the word, 'delivered', occurring in Section 72 of the Indian Railways Act, refers merely to a physical event and is devoid of any legal significance and any restriction of liability created by Section 72 and by any rule framed under Section 47 cannot be accepted as valid. With great respect, we agree with this view and we have no hesitation in accepting this judgment as correct.
5. Mr. Bose also raised a point to the effect that there is no clear finding as to the time when the consignments were accepted by the railway for carriage to the destination station. On reading that judgment carefully, we have come to the conclusion that there is no substance in this point as well. The learned Judge of the court of appeal below has found upon the oral and documentary evidence that the consignments were really accepted by the railway at the time when the -weights of the different consignments were noted in the forwarding notes, Ex. B series, and there is also a finding to the effect that the consignments in all probability got drenched in rain water when lying on an open platform at the Lalgola Railway station. These are findings of fact and it is not possible for us to interfere with these findings.
6. As all the points raised by Mr. Bose in support of the appeal fail, this appeal must be dismissed with costs.
J.P. Mittkr, J.
7. I agree.