The liability of Railway Companies as bailees is limited to the care expected of a prudent owner, and they cannot be held liable for damage caused by unforeseen and unavoidable events.

Padhye, J—This revision is filed by the plaintiff against the dismissal of his suit for damages filed against the Governor-General in Council (owning the G.I.P. Railway) and the B.N. Railway Company, Limited, which, during the pendency of the suit, also came to be owned by the Government. The relevant facts are as follows.

2. On 20-7-1942, bags of gramdal (pulse) were delivered by the consignor to the defendant at its Railway Station, Cawnpur Central, to be carried to and delivered to the plaintiff at Saoner Railway Station of the B.N. Railway Company within the district of Nagpur. The goods reached their destination of Saoner on or, about 2-8-1942 but, according to the plaintiff, in a damaged condition due to moisture and unfit for human consumption. The plaintiff insisted on the goods being delivered to him after weighing and after ascertaining the extent of damage and noting the same.

3. This was refused by the Railway Officer in charge with the result that the goods remained undelivered till 19-11-1942, when the goods were taken delivery of by the plaintiff after the Railway Officer estimated and noted the damage and shortage at 60 per cent. The plaintiff thereafter served notices of his claim and ultimately instituted a suit claiming Rs. 395-8 as damages.

4. The defendant denied liability on the grounds inter alia that the goods were not damaged during transit, that the plaintiff acted illegally and without jurisdiction in refusing to take delivery and in insisting on what is said to be open delivery after noting the extent of damage and shortage and that the damage was in fact caused on 15-8-1942 by a riotous mob in the course of 1942 disturbances which it was beyond the control of the defendant to avoid.

5. The learned Judge of the lower Court held that the plaintiff was at fault in refusing to take delivery on 2-8-1942 and the goods were thereafter lying with the defendant as unclaimed property. It was during this period that the goods were damaged by riotous mob which was beyond the reasonable apprehension of the defendant and in spite of the exercise of a reasonable care which the defendant as bailee was expected to take in those circumstances.

6. Before Section 72, Railways Act 9 [ix] of 1890 was framed there was much divergence as to the liability of the Railway Companies in India and it was held in a series of cases by the Calcutta High Court that the Railway Companies, just as common carriers, were not only liable for negligence but also as, insurers of goods delivered to them.

7. The Bombay High Court in its Full Bench case reported in Kuverji Tulsidar v. G.I.P. Ry. Co. 3 Bom. 109 had however held that the English Common law rule under which common carriers are held liable as insurers of goods had no application to the Railways in India and subject to special provisions and contracts the liability of the Railways in respect of goods entrusted to them is governed by Sections 151 and 152, Contract Act.

8. It is now well settled that after the Act 9 [ix] of 1890 was enacted the Railways in India are merely bailees in respect of goods entrusted to them for carriage and are governed by the provisions of the Indian Contract Act on bailment: Fagan v. Green and Edwards Ltd., 1926 1 KB 102, B.N. Ry. Co. Ltd. v. Sobrati Miya, 1944 AIR(Cal) 50 and Ralliaram v. Governor-General of India in Council,1946 AIR(Cal) 397. Section 72 of Act 9 [IX] of 1890 declared the law in conformity with the aforesaid Bombay decision.

9. The llearned Counsel for the applicant relied mainly on two points, firstly that the goods were damaged in transit and reached Saoner in damaged condition, and secondly that, the Railway Officers acted illegally or at any rate improperly in refusing to give delivery after examining the contents of the consignment and endorsing the shortage in weight and damage. According to him the defendant is liable for the damage in transit and he is liable for further damage on account of wrongful refusal to give delivery.

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