The Railway was not protected from liability for the shortage of goods despite the existence of risk notes A, B, and C, as the loss did not fall within the terms of the risk notes and the goods were not defectively packed.

( 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. and 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 and 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 and 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',.

( 8 ) A question has, however, been raised before me on behalf of the Railway appellant that in view of the existence of