Judgment

Shah, C.J.I. -On August 28, 1948, the appellants booked a consignment of 176 mds. 6 seers of ghee in 357 tins from railway station Hathras Killah to Kanpur Central on East India Railway under R. R. No. 721200. At the destination station, the consignment was found to be short by 37 mds. 24 seers 4 sh. of ghee. The appellant filed a suit against the railway administration for a decree for Rs. 10,965.50 p. as damages for loss suffered by them on account of short delivery in the consignment. The appellant submitted that the loss was due to the negligence and misconduct of the employees of the railway administration. The suit was defended by the Union of India. It was contended that the goods had not been properly packed and on that account the goods were booked at owner s risk under railway risk note in Form A and that the Railway Administration and its employees were not guilty of negligence or misconduct in dealing with the consignment. The Trial Court decreed the suit holding that the execution of the railway risk note in Form A was not proved, and the railway being a bailee of the goods consigned was liable to make good in loss suffered by the appellants. In appeal against the decree, the High Court of Allahabad reversed the decree and dismissed the appellant s suit. With certificate granted by the High Court, this appeal has been preferred by the appellants.

2. It was enacted by Section 72 of the Indian Railways Act, 1890 as it stood at the relevant time that :

"(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151, 152, and 161 of the Indian Contract Act, 1872.

(2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it-

(a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and

(b) is otherwise in a form approved by the Central Government ."

3. The railway administration being a bailee, it would ordinarily be liable to make good the loss suffered by the bailor unless it shows that it took Such care as a person of ordinary prudance would under similar circumstances take of his own goods of the same bulk, quality and value. It is however, open to the railway administration by agreement with the consignor to limit its responsibility as a bailee, provided the agreement is executed in the manner prescribed by sub-sec. (2) of sec 72. The case of the Railway Administration is that it had by booked the consignment under Risk Note form A i. e. at owner s risk. The appellants denied that the consignment was booked under Risk Note Form A. Witness Lala Ram examined on their behalf deposed that a risk note restricting the liability of the railway administration was even executed. Lala Ram stated that he had taken the forwarding note to the station, that after getting the tins of ghee loaded, he took them to Hathras station & that he had the goods booked, but he did not remember who filled up the risk note form and whether it was filled up or not. He did not see O. R A. (Owner s risk) written on the railway receipt, that the goods were loaded on the day it was booked, that he, got loaded the goods and that he was not told that the goods were sent at the owner s risk.

4. Mr. Gupta for the appellants contended that in fact no risk note was even executed by the appellant and on that account, the liability of the railway administration was under sec. 72 (1) of the Indian Railways Act, 1890 as in force in 1948 that of an ordinary bailee. But the appellants in their plaint have expressly referred to the railway receipt No. 721200 dated August 28, 1948. they have not produced the railway receipt. The railway administration has tendered in evidence a copy of the railway receipt which is printed