P.N. Mookerjee, J.
1. This is a second appeal by the defendant Bengal Nagpur Railway and it is directed against a decree for damages or compensation for non-delivery of a certain consignment of biri tobacco. The material facts are as follows:
2. The consignment in question comprising 153 bags of biri tobacco was booked with B. B. & C. I. Railway for delivery to the plaintiff-respondent at Bankura, a station on the Bengal Nagpur Railway. In course of transit the consignment had to pass also through the G. I. P. Railway, There is, however, no dispute now that the consignment was duly made over to Bengal Nagpur Railway. The consignment reached the Bankura Railway Station on the 7th May 1945, and, at the time of delivery to the consignee, two complete bags were found missing and nine bags were found cut, disclosing a shortage of 6 maunds 35 seers. The Railway refused to compensate the consignee for the loss sustained by reason of the shortage and hence the present suit by the consignee.
3. The material defence was that the Railway was not liable as the shortage was due to theft by persons other than the Railway employees and also because the consignment in question was booked under risk notes A, B & C. It was also contended by the defence that at the time of delivery it was not pointed out to the Railway authorities that nine bags had been cut.
4. The suit has been decreed by the Courts below against the Bengal Nagpur Railway upon, inter alia, the following findings, viz.,
1. that there was shortage to the extent of 6 maunds 35 seers at the time of delivery to the plaintiff;
2. that two complete bags were missing and nine other bags were cut and this was duly pointed out to the Railway at the time of delivery;
3. that the loss did not occur by reason of the consignment being carried in open truck;
4. that the story of theft by outsiders had not been substantiated;
5. that the bags were securely-and not defectively-packed;
and the Courts below have refused to hold that the Railway was protected under the risk notes pleaded by it.
5. Mr. Basu, appearing for the Railway-appellant, has contended before me that in view of the existence of the risk notes A, B & C the Railway is protected from liability in the present case.
6. In risk note C, no indemnity is given in I case of loss as distinct from cases of destruction, deterioration or damage. This is clear from a comparison of risk note 'c' with the other risks notes where the word 'loss' is also included. It is also clear from risk- note 'C' that the destruction, deterioration or damage against which indemnity is given there-by must arise 'by reason of the consignment being conveyed in open wagons in transit'. Admittedly, the present case is one of loss and there is also the finding of the Courts below that the said loss did not arise from the goods being carried in open truck, which finding cannot be challenged on the materials on record. In such circumstances, risk note 'C' does not, in my opinion, afford any answer in the present ease to the plaintiffs' claim.
7. The risk note 'A' is also of no assistance to the Railway as the loss in the present case cannot be said to arise from condition at which the goods in question were delivered to the consignee. The condition under risk note 'A' must have been due to the init al con lition of the goods at the time of booking or to 'defective packing'. There is no allegation in the present case that at the time of booking the condition of the goods was bad and the finding of the Courts below is that the goods were securely- and not defectiyely-packed, thus necessarily excluding all questions of loss arising from any such cause as aforesaid. In such circumstances the protection under risk note 'A' is also not available to the Railway vide: 'GANGADHAR RAMCHANDRA, A FIRM v. DOMINION OF INDIA', : AIR1950Cal394 .
8. A question has, however, been raised be-fore me on behalf of the Railway appellant that in view of the existence of Risk Note 'A' in the present case the Plaintiffs are not en-J titled to say that the goods were not defectively packed and in this connection reliance has been placed on the decisions of this Court in 'G I P RY CO., v. CHAKRAVARTY & SONS', 32 Cal W N 53 Rankin C. J., and Mitter J., and 'GOVERNOR GENERAL OF INDIA v. HOSSEN KASSEM DADA', in Civil Revn No. 624 of 1946, decided by our present Chief Justice (Harries C. J.) on the 15th of April 1947. None of these cases, however, is authority for the broad proposition contended for before me as aforesaid and, upon the materials and findings in this case, none of them is of any avail to the appellant. In '32 Cal W N 53', it was pointed out that there was no finding by the Courts below that the packages - as distinct from the 'cases' -were not defective and, in the other case also, the learned Chief Justice commented on the absence of materials to show that the goods in question were properly packed. In my opinion, there is nothing in either of the two cases, cited above, to support any broad plea of estoppel or of exclusion of evidence under Section 92 of the Indian Evidence Act, applicable to all cases and, on the materials before me. I am not inclined to hold that the plea of any such bar is open to the appellant here, Neither principle nor authority does, in the ultimate analysis, support any such plea in the present case and I, accordingly, overrule the same.
9. The view which I have expressed above is not inconsistent with the decision of this Court in 'MAFAT LAL v. B. B. & C. I. RLY' : AIR1931Cal489 where the case fell directly within the mischief of the terms of the risk note, there under consideration, and the general observation, there made, must be read in the light of that special fact. In the present case, the relevant note of defect runs as follows : 'old, weak, contents dropping'. Such defect, even if it existed, cannot explain loss of complete bags or cutting of bags and is, therefore, insufficient to protect the Railway, even on the authority of 'MAFAT LAL'S CASE'.
10. The only other contention that remains to be noticed is that, in view of the existence of risk note 'A' in this case, the plaintiffs were not entitled to the benefit of any of the proviso in risk note 'B' so that under the latter the Railway was fully protected. For this contention reliance has been placed upon the decision of this Court, reported in 'GOVERNOR GENERAL IN COUNCIL v. KISEN GOPAL', AIR (35) 1948 Cal 300, where Lodge, J. took a view, not apparently reconcilable with his own decision reported in 'GOVERNOR GENERAL IN COUNCIL v. DEDRAJ', : AIR1948Cal168 and upon two other decisions, also of this Court, reported in 'DOMINION OF INDIA v. GURUPROSAD RAM GOPAL', AIR (36) 1949 Cal 679 and 'BHUPENDRA KUMAR v. INDIAN UNION', 55 Cal W N 251.
11. In my opinion, however, the concurrent findings by the Courts below that the goods were not defectively packed sufficiently distinguishes this case from those, cited above, and also from the decisions of Mukherjea J., in 'GOVERNOR GENERAL IN COUNCIL v. KISANGOPAL BHARTIA, Civil Revn Case No. 74 of 1946, D/- 22-11-1946. None of the said decisions can. therefore, be of any assistance to the appellant before me. I would also like to add that, in my opinion, the true view seems to be that, as 'defectively packed' does not necessarily mean 'not packed according to the instructions laid down in the tariff', (vide 'ROSHAN UMAR & CO. v. M & S M RLY.', 59 Mad 789 at pp. 795-796, and as the Tariff rules and their existence or non-existence are matters within the special knowledge of the Railway authorities, the mere execution of the risk note 'A' does not necessarily change the onus under the proviso to risk note 'B'. This remaining contention of the appellant must also, therefore, fail and, in this view of the matter, the findings of the Courts below that the Railway administration was guilty of mis-conduct is a good finding on the authority of the Privy Council decision. 'SURAT COTTON SPINNING & WEAVING MILLS LTD. v. SECRETARY OF STATE', 64 Ind App 176 (PC). See also in this connection 'RAIGARH JUTE MILLS LTD v. 'COMMRS FOR THE PORT OF CALCUTTA', : AIR1947Cal98
12. The net conclusion, therefore, is that the Railway is not protected in the present case under any of the risk notes in question and what has been urged on behalf of the appellant must fail.
13. This appeal, therefore, cannot succeed and it is dismissed with costs.
14. Leave to appeal under Cl. 15 of the Letters Patent is asked for and is granted.