Judgment

MUDHOLKAR, J. (For himself and on behalf of Sarkar J.) : The common question which arises in this group of appeals from 9 judgments of the High Court of Punjab which were disposed of along with 5 other appeals by a common judgment is whether the Union of India is liable to the consignees of different commodities or goods which were consigned to them by rail from various places in the country on account of their non-delivery. The appellants consignments were admittedly being carried by a goods train. No. 35 down, assembled at Agra on or about August 28, 1949, and stabled at Asaoti, a railway station about half was between Mathura and Delhi.

2. There is no dispute that the appellants consignments were to be delivered at Delhi and that they were in fact not delivered. According to the respondent these consignments were looted from the stabled train between the 4th and 11th September, 1947. Further according to it there being congestion in the yard at Agra the wagons in which these goods were being carried, along with other wagons carrying goods, were formed into a separate goods train at Agra which was taken to Asaoti and stabled there at the siding. In the normal course this train would have gone a head up to Delhi but as there also the yards were heavily congested, not only this goods train but several other goods trains were stabled at different wayside stations between Agra and Delhi. This, it was said, was due to the fact that owing to communal disturbances raging in this part of the country at that time, the section of the railway between Agra and Delhi was being operated under conditions of the utmost difficulty and, therefore, the normal movement of trains was impeded.

3. The Court of first instance decreed all these suits upon the ground that the respondent had not established that the goods had been looted by lawless elements and so it was liable to make good the value of the consignments which were not delivered by the railway administration to the respective appellants. In appeal the High Court of Punjab found, on the other hand, that the defence had been fully established and dismissed the claims.

4. We are here concerned with the Indian Railways Act, 1890 as it stood before its amendment first by Act 56 of 1949 and then by Act 39 of 1961. The measure of the responsibility of the railway administration as a carrier of animals and goods is set out in S. 72 Sub-section (1) of that section provided that subject to the other provisions of the Act the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by rail shall be that of a bailee under Ss. 151, 152 and 161 of the Indian Contract Act. 1872.Sub-section (2) provides that the railway administration could, by entering into a special contract in a form approved by the Governor General limit its liability. Sub-section (3) provides that nothing in the common law of England or the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility of a railway administration as defined in that section. In pursuance of the provisions of sub-s. (2) of S. 72 certain types of risk notes to be executed by consignor which had been duly approved by the Governor General were in vague. One such risk note is in Form B. This risk note is to be executed by the consignor who wants his consignment to be carried by the railway administration at a specially reduced rate instead of at the ordinary tariff rate chargeable for such a consignment. The consignments with which we are concerned in these appeals had been despatched under risk notes in this form. It would, therefore, be useful to reproduce the relevant portion of risk note form "B

"I/We the undersigned, do in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for a