1. A wagan-load of biris weighing 353 bags and 4 baskets was booked by the petitioners from Gondia to Shalimar on the B.N. By and delivery was taken. 16 bags and 2 baskets were found damaged by water. The claim in the suit to which this rule relates was for recovery of compensation for the damage aforesaid. The trial Judge dismissed the suit holding that as the consignment was covered by Risk Notes A and B the Ry. Co. were protected from liability. The petitioners have then obtained this rule.
2. In support of the rule several grounds have been urged. In the first place it has been contended that as the petitioners took delivery after the damages had been assessed and a certificate of such assessments showing the amount of it as Rs. 334-8-0 had been given to the petitioners and after the Chief Station Master at Shalimar had promised to make good the amount the railway Co. are under a disability to plead the Risk Notes. In answer to this contention it is enough to say that nothing has been proved which would go to raise an estoppel of this nature against the Co. Nextly, it has been urged that the goods were not carried in the proper vehicles enjoined by the rules and so there was misconduct on the part of the Co.'s servants which would deprive the Co. of their protection under the Risk Notes. The finding on this point as recorded by the Subordinate Judge is against the petitioner. Thirdly, it has been urged that the conditions under which the Risk Notes could be taken were nonexistent and so the Risk Notes are not operative. What is said under this head is that Risk Note form A is to be used when Articles are tendered for carriage in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit, but that, in point of fact, no packing conditions were in existence at the date of dispatch of the goods, and that Risk Note Form B is to be used only when there is an alternative rate quoted for the goods in the tariff and the consignor avails himself of the lower rate while at the date of the dispatch biris had only one rate. Neither of these matters appears to have been specifically raised in the Court below. In view, however, of the importance of the ease we have allowed the parties to go into these matters.. We find that the arguments so far as these matters are concerned are based on some erroneous supposition. The Forwarding Note itself bears the endorsement
Packed in bags and baskets instead of boxes as required by the packing conditions prescribed.
showing that such rules did exist at the time. The tariff rates produced before us show that there were alternative rates and the petitioners availed themselves of the lower rate.
3. The Risk Notes, therefore, were taken on the basis of existing conditions and in our opinion were operative. Nextly, it has been contended that the agreement to limit the liability of the Co. was void as the Risk Notes were not duly executed within the meaning of Section 72, Sub-section (2) Clause (a), Railway Act. We find ourselves unable to agree in this contention, because the Risk Notes have been proved to have been signed by the plaintiff' agent at Gondia who delivered the goods to the Ry. Administration. Lastly, it has been urged that the agreement is void in that it was not in a from approved by the Governor-General-in-Council, as it must be, under Section 72, Sub-section (2), Clause (b). The defect that is pointed out is that whereas in the approved Forms of Risk Notes A and B it is stated that the Risk Notes, the Forwarding Order and the Ry. Receipt must bear one and 'the same date', here the Risk Notes bere date 13th July 1926 and the Ry. Receipt, 15th July 1926. Reliance for this contention has been placed upon a decision of Tek Chand, J., in the case of E.I. Ry. v. Jot Ram Chandra Bhan  20 C.W.N. : A.I.R. 1928 Lahore 162. With all respect to the learned Judge we must say we are unable to agree with him in the view that he has taken with regard to a discrepancy of this character. The case of Mahabasha Bankapur v. Secy. of State  20 C.W.N. 685 upon which he has relied is, in our opinion, widely different. We are of opinion that so long as it is established that the Risk Notes, the Forwarding Note and Railway Receipt refer to the consignment in question the Co. is amply protected.
4. As all the contentions urged in support of the Rule fail, the rule must be discharged with costs 2 gold mothers.