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East Indian Railway v. Makhan Lal
Summary of Opinion — Revision Application: Short Delivery of Consignment
Factual and Procedural Background
This is an application in revision arising from a suit for damages for non-delivery of part of a consignment handed to the Railway at Howrah for transport to Allahabad. Three casks of cocoanut oil were alleged to have been sent; only two were delivered at Allahabad and one cask was not delivered. The plaintiffs sued for the missing cask. The Railway Company's defence invoked Section 77 of the Railways Act, IX of 1890, and relied on a risk-note in form B to bar the suit. The case was tried in the Small Cause Court, and the learned Judge held for the plaintiffs on the basis that the plaintiffs had pleaded non-delivery and the Railway had not proved any exceptional cause (such as theft from a running train) that would allow reliance on the risk-note.
Legal Issues Presented
- Whether Section 77 of the Railways Act, IX of 1890 and the risk-note in form B bar a suit for short delivery of part of a consignment.
- Whether the Railway may rely on the risk-note in cases of short delivery without first proving that the loss arose from causes such as theft from a running train or similar events.
Arguments of the Parties
Defendant (Railway Company's) Arguments
- The Railway Company pleaded that Section 77 of the Railways Act, IX of 1890, together with the risk-note in form B, barred the plaintiffs' suit for the missing cask.
The opinion does not contain a detailed account of the plaintiffs' specific legal arguments beyond the pleading that the cause of action was non-delivery of one cask.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Secretary of State for India in Council v. Jiwan (1923) I.L.R. 45 All. 380 | Holds that in cases of short delivery the Railway cannot set up the risk-note unless it is shown that the loss was due to theft from a running train or a similar cause. | The court stated it was in full accord with this decision and applied the principle to the present case to reject the Railway's reliance on the risk-note where no such cause had been proved. |
| Civil Revision No. 23 of 1923, decided 13 April 1923 by Mr. Justice Daniels (1923) I.L.R. 45 All. 530 (unreported) | Same principle as above: risk-note cannot be relied on for short delivery absent proof that the loss resulted from theft from a running train or similar causes. | The court endorsed this decision as supporting the view taken by the Small Cause Court and relied upon it in dismissing the revision application. |
Court's Reasoning and Analysis
The court reviewed the nature of the claim (non-delivery of one cask out of three) and the defence (reliance on Section 77 of the Railways Act and a risk-note in form B). The court noted prior decisions of the same court establishing that, for short delivery, the Railway may not rely on the risk-note unless it first shows that the loss occurred from causes such as theft from a running train or similar events.
Applying that principle, the court observed that in the present case the Railway did not attempt to prove that the missing cask had been lost by theft from a running train or any like cause. The court agreed with the learned Judge of the Small Cause Court, who had held that because the plaintiffs had pleaded non-delivery and the Railway had not established an exceptional cause excusing liability, the plaintiffs should not be required to prove fault on the part of the Railway. The court expressly stated its accord with the two cited decisions and found it unnecessary to consider other authorities.
Holding and Implications
HOLDING: The application in revision is dismissed with costs.
Implications: The dismissal upholds the Small Cause Court's view that where there is short delivery and the Railway does not prove that the loss arose from theft from a running train or a similar cause, the Railway cannot successfully set up the risk-note under Section 77 to bar the suit. The decision directly results in the revision being dismissed and the lower court's judgment standing. The opinion does not purport to create a new legal precedent beyond endorsing the two earlier decisions it cites.
1. This is an application in revision, arising out of a suit for damages for non-delivery of part of a consignment made over to the Railway at Howrah for transport to Allahabad. Three casks of cocoanut oil were alleged to have been sent. Out of these only two were delivered at Allahabad and one cask was not delivered. Hence the present suit.
2. The defence pleaded by the Railway Company was that Section 77 of tire Railways Act, IX of 1890, and the risk-note, which was in form B, barred the suit.
3. In two cases of this Court it has been held that in case, of short delivery like this the Railway are not entitled to set up the risk-note unless it was shown that the loss of the cask was duo to a theft from a running train or some such cause. This case was tried in. the Small Cause Court, and the view taken by the learned. Judge of the court below was that the plaintiffs had distinctly stated that their case was one of non-delivery. The defendant Railway Company did not, in the present case, even attempt to prove that the goods had been lost as aforesaid, and it is only after they had done so that the plaintiffs could be asked to prove that the loss was due to any fault of the Railway Company which would make them liable. The learned Judge has referred to several cases. This -view, however, was taken in the case of The, Secretary of State for India in Council v. Jiwan (1923) I.L.R. 45 All. 380 and in the unreported case in Civil, Revision No. 23 of 1923, decided so recently as the 13th of April, 1923, by Mr. Justice Daniels (1923) I.L.R. 45 All. 530. I am in full accord with these two decisions. It is not necessary to go into the cases decided by other courts. I dismiss this application in revision with costs.
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