The Railway Administration is liable for damages for unreasonable delay in transit notwithstanding risk note A in the absence of special conditions to the contrary or satisfactory explanation for the delay.

1. This is an appeal by the Railway Administration against the decree for Rs. 6875-0-0 for damages.

2. The facts are: On 23-9-1944, 469 baskets of potato seeds were booked from Behar-Sharif, a railway station on B.B. Light Railway to Bordehi, a station on the G.I.P. Railway, in the district of Betul. This consignment reached the junction Bukhtiarpur on the same day, but was not loaded in the broad guage wagons till 29-9-1944. The loaded wagons were moved from Bukhtiarpur on 29-9-1944 reaching Naini on 1-10-1944. The wagons were moved forward the same day, reaching Itarsi on 5-10-1944 and were lying there till 12th.

On the 12th they were moved, reaching the destination on 14-10-1944. Delivery was taken the same day in the morning and on removing the goods to a place beyond the railway compound to sell and deliver them to the intending purchasers it was found that the goods were rotten and stinking and the purchasers would not buy them. It was then noticed that 50 per cent of the goods were anfit for use. Plaintiff therefore claimed the price of 200 maunds and the loss of profit at Rs. 5-0-0 per maund, total Rs. 7025-0-0.

3. The lower Court found that the usual time for transit between Behar-Sharif and Bordehi is about 9 or 10 days, and that the 200 maunds out of the whole consignment of potato seeds were found on 14-10-1944 at Bordehi to have been stinking and unfit for any purpose. The lower Court further found that before the consignee was allowed to examine the goods he was asked to pay the railway freight and sign the delivery register and the station-master did not condescend to listen to his protest after he took delivery and to examine the goods. The lower Court also found that the prevailing rate of good potato-seeds at Bordehi was Rs. 35-0-0 per maund and that the railway company was not protected by the risk notes A and B as the damage caused to the potato seeds was due to the misconduct on the part of the employees of the Defendant.

4. Having regard to the evidence of D.W. 6 that the usual time for transit between the two stations Behar-Sharif and Bordehi is about 9 or 10 days, the learned Counsel did not seriously attack the finding that there was unusual delay in this case. We affirm the finding.

5. (Their Lordships considered the evidence regarding the condition and rate of potato-seeds and proceeded:) Agreeing with the lower Court we hold that when the potato-seeds were received by the Plaintiff on 14-10-1944, they were stinking and that 50 per cent of them were unserviceable. Relying on the Plaintiff's witnesses P.W. 1 to P.W. 5 we further hold that the rate of potato-seeds prevailing on that date at Bordehi was Rs. 35/- per maund as found by the lower Court.

6. The learned Counsel next contended that the rate at Behar-Sharif on 23-9-1944 was the measure of damages for the loss alleged to have been suffered by the Plaintiff. We do not agree. On 23-9-1944 the Plaintiff did not suffer any loss. The loss occurred at Bordehi where the goods ought to have been delivered. It occurred on 14-10-1944 consequent on the alleged wrongful acts of the employees of the Defendant. The price of the goods at Bordehi on 14-10-1944 should be the measure of damages. We are in respectful agreement with this view taken in - Dominion of India v. Firm Chhaganlal Premji, 1951 AIR(Nag) 357(A). See also Halsbury's Laws of England, Volume IV, pages 22-23.

7. Now remains the questions whether the damage caused to the consignment was due to the misconduct on the part of the employees of the contracting Railway Administration or of the Railway Administrations over whose lines the consignment passed and whether they are protected from the liability under risk notes A and B. The Defendant does not rely on risk note B. By risk note A the consignor holds the Railway Administration harmless and free from all responsibility for the condition in which the goods may be delivered to the consignee at destination and for any loss arising from the same e