Judgement

Appeal (No. 17 of 1927) from a decree of the High Court (October 5, 1925) reversing a decree of the Subordinate Judge of Dhulia (September 18, 1922).

Law Rep. 55 Ind. App. 67 ( 1927- 1928) Tamboli V. Great Indian Peninsular Railway C ompany 259

The appellant, who traded as Tamboli Brothers, brought a suit against the respondent to recover the value of 74 bales of cotton which he had delivered to the railway-company at Amalner station for carriage to Bombay, and which had been destroyed by fire while awaiting despatch.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree for the plaintiff, but the decree was reversed upon appeal to the High Court (Fawcett and Madgavkar JJ.). The appeal is reported at I. L.

R. 50 B. 284,

There were concurrent findings that the cotton had been destroyed owing to the negligence of the railway company, and the only issue upon the appeal was whether the risk note afforded a defence to the suit.

1927. Oct. 31. Hon. Geoffrey Lawrence K.G. and E. B. Raikes for the appellant.

Stuart Bevan K.C. and Kenworthy Brown for the respondent company.

The arguments on behalf of the appellant appear from the judgment. Counsel for the respondent were not called upon.

Nov. 28. The judgment of their Lordships was delivered by

VISCOUNT CAVE L.C. The appellant, who is a commission agent carrying on business in the Bombay Presidency, delivered, on February 5, 1920, 128 bales, and on February 7, 1920, 162 bales of cotton at the Amalner station of the respondent company for transport to the appellants business premises at Kurla. Of the 290 bales so delivered, 216 were duly put on board the respondent companys wagons and carried to Kurla, but the remaining 74 bales, together with a large number of bales belonging to other consignors, remained on the station platform at Amalner awaiting transport. On February 25 a fire broke out in some of these bales, and, the appliances available in case of fire being inadequate, the greater part of the bales at Amalner station, including the 74 bales belonging to the appellant, were destroyed. Thereupon the appellant brought this suit against the respondent company, alleging that the destruction of the 74 bales was due to the negligence of the companys servants, and claiming damages for his loss.

The suit was tried by the Subordinate Judge of Dhulia, who found that the respondent companys servants had been guilty of negligence, and gave judgment for the appellant for Rs. 10,518 as damages; but on appeal by the respondents to the High Court of Judicature at Bombay, that Court, while agreeing with the trial judge as to the finding of negligence, held that the respondent company was protected from liability by a document dated November 3, 1919, and referred to in the proceedings as a " risk-note.” The question to be determined on this appeal is whether the respondent company is so protected.

The risk note was in the following terms—

" Whereas all consignments of goods or animals for which the G.I.P. railway administration quotes both owners risk or special reduced rates and railway risk or ordinary rates are (unless I/we shall have entered into a special contract in relation to any particular consignment) despatched by me/us at my our own risk and are charged for by the G.I.P. railway administration at special or reduced owners risk rates instead of at ordinary tariff or railway risk rates, I/we, the undersigned, in

Law Rep. 55 Ind. App. 67 ( 1927- 1928) Tamboli V. Great Indian Peninsular Railway C ompany

260

consideration of such consignments being charged for at the special reduced or owners risk rates, do hereby agree and undertake to hold the G.I.P. railway administration and all other railway administrations working in connection therewith, and also all other transport agents or carriers employed by them respectively over whose railways or by or through whose transport agency or agencies the said goods or animals may be carried in t