Ardeshir Bhicaji Tamboli v. Agent, G.I.P. Ry. Co., Bombay, Privy Council, Judgment, Law, casemine.com

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Case Number

Privy Council Appeal No. 17 of 1927

Attorney(S)

Solicitor
India Office
Lattey and Dawe
K. Brown
S. Bevan
E. B. Raikes
G. Lawrence

Judges

Warrington Of Clyffe
Darling
Carson
Buckmaster
Justice Chancellor

Acts

provisions of S. 72, Indian Railways Act, 1890.
S. 72, Indian Railways Act, 1890,
(a), S. 72 (2), Act, 1890,

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Smart Summary

Factual and Procedural Background

The appellant, a commission agent trading as Tamboli Brothers in the Bombay Presidency, delivered 128 bales on 5 February 1920 and 162 bales on 7 February 1920 (total 290 bales) at Amalner Station to the respondent railway company for carriage to Kurla. Of these, 216 bales were loaded and sent to Kurla; 74 bales remained on the station platform awaiting transport. On 25 February a fire broke out among bales at Amalner Station and, due to inadequate fire appliances, the majority of the bales on the platform — including the appellant's 74 bales — were destroyed. The appellant sued the railway company alleging negligence and claiming damages.

At trial the Subordinate Judge of Dhulia found negligence on the part of the railway company's servants and awarded damages of Rs. 10,518 to the appellant. On appeal the High Court of Judicature at Bombay agreed that negligence had been proved but held that the railway company was protected by a "risk-note" dated 3 November 1919. The central issue on further appeal to the Board (Lord Chancellor delivering) was whether the respondent railway company was protected from liability by that risk-note.

Legal Issues Presented

Whether the risk-note signed by "Tamboli Brothers" complied with S. 72 of the Indian Railways Act, 1890, in particular as to (a) being in writing and signed by or on behalf of the sender, and (b) being in a form approved by the Governor-General in Council.
Whether the manner of signature (the signature being the handwriting of the appellant's nephew, Jamsetji Tamboli) invalidated the risk-note because the agent's agency was not expressly disclosed on the face of the document.
Whether attestation by two witnesses (one of whom was Jamsetji, the signatory) was an essential element of the approved form under S. 72 and therefore rendered the note invalid.
Whether the risk-note attached to the 74 bales that remained on the platform (i.e., whether the note applied before goods were loaded on wagons or until a receipt specifying reduced rate was given).
Whether the destruction of the 74 bales fell within the exception in the risk-note for loss caused by "wilful neglect" of the railway administration or its servants.

Arguments of the Parties

Appellant's Arguments

The risk-note did not comply with S. 72, Indian Railways Act, 1890, because: (a) the signature "Tamboli Brothers" was in the handwriting of the appellant's nephew (Jamsetji) and a signature in the firm's name is ineffective unless it appears that it was made by the sender or by an agent whose agency is disclosed on the face of the document; and (b) the document was not in the precise form approved by the Governor-General in Council because the approved form contemplates attestation by two witnesses and one witness (Jamsetji) was the signatory, making him an improper attesting witness.
The risk-note did not attach to the 74 bales that remained on the platform because, it was said, the note applied only to goods "despatched by the sender and charged for ... at special reduced or Owner's risk rates" and thus only took effect when goods were actually loaded on wagons or when the railway gave a receipt specifying carriage at the reduced rate; until such despatch or receipt the railway were mere bailees and the note had no application.
Alternatively, the loss fell within the express exception in the risk-note for loss due to "wilful neglect" of the railway administration or its servants, so the railway remained liable despite the risk-note.

Respondent's Arguments (as accepted by the Court)

The signature by Jamsetji (in the firm's name) was effective because Jamsetji had full authority to sign for the firm; where an agent has authority to sign in the firm's name it is unnecessary that he should purport to sign as agent.
The attestation by two witnesses, although contemplated in the approved form, is not an essential part of the form required by S. 72, since subsection (2)(a) deals with execution and does not require attestation; therefore Jamsetji acting as both signatory and witness did not invalidate the document.
The goods were delivered to and accepted by the railway for carriage on 5 and 7 February (as shown by consignment-notes signed by the appellant requesting receipt and forwarding to Kurla and containing conditions referring to S. 72), so the responsibility of the railway for each parcel accrued on delivery and acceptance and the risk-note attached immediately on such delivery and acceptance.
No special contract had been entered into in relation to these consignments that would exclude them from the general risk-note, so the consignments fell under the risk-note's protection.
Although there was evidence of neglect in the fire-fighting appliances at Amalner (e.g., one hydrant not working and insufficient pressure), that neglect was not "wilful neglect" within the meaning of the risk-note; therefore the risk-note's exception did not apply.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
France v. Dutton [1891] 2 Q. B. 208; 60 L. J. Q. B. 488; 39 W. R. 716; 64 L. T. 793	Authority that where an agent has full authority to sign for a firm, it is unnecessary that he should purport to sign as agent or that his agency be disclosed on the face of the document.	The Court relied on this case to reject the appellant's objection that the signature in the nephew's handwriting was ineffective because the agency was not disclosed; finding Jamsetji had full authority, the signature was valid under S. 72.
R. v. Downes [1875] 1 Q. B. D. 25	Cited for the meaning of "wilful neglect" and related authorities on the element of deliberate or intentional conduct required for "wilful" wrongdoing.	Used, along with R. v. Senior, to support the view that neglect, even if grave or amounting to negligence, is not necessarily "wilful neglect" unless done deliberately with the mind accompanying the act.
R. v. Senior [1899] 1 Q. B. 283; 68 L. J. Q. B. 175; 79 L. T. 562; 63 J. P. 8; 47 W. R. 367; 19 Cox. C. C. 219; 15 T. L. R. 102	Authority (per Lord Russell) that "wilful neglect" means an act done deliberately and intentionally (the mind of the person goes with the act), not by accident or inadvertence.	The Court applied this interpretation to conclude that the railway's deficiencies in fire-fighting were neglect but not "wilful neglect" as legally required to bring the loss within the risk-note exception; therefore the exception did not apply.

Court's Reasoning and Analysis

The Board proceeded by addressing each contention advanced by the appellant, applying statutory text, the evidentiary record (consignment-notes and pleading), and relevant authorities.

On the S. 72 signature point: the Board observed that S. 72 requires an agreement purporting to limit responsibility to be in writing and signed by or on behalf of the person sending or delivering the goods, and in a form approved by the Governor-General in Council. The signature on the risk-note appeared as "Tamboli Brothers" but was in the handwriting of Jamsetji Tamboli (the appellant's nephew). The Board found, on the evidence, that Jamsetji had full authority to sign the firm's name. Citing France v. Dutton, the Board held that where such authority exists there is no necessity for the signatory to indicate on the document that he signs as agent; the signature therefore satisfied the statutory requirement that the agreement be signed by or on behalf of the sender.

On the attestation/form issue: the Board noted that the approved form (form H) contained at its end space for attestation by two witnesses, but that subsection (2)(a) of S. 72 alone deals with execution and does not mandate attestation. Paragraph (b) merely requires that the form be approved but does not delegate to the approving authority the specific duty of prescribing attestation. Consequently, the Board concluded that attestation by two witnesses, though contemplated in the approved form, was not an essential part of the form required by the statute and that Jamsetji acting as both signatory and a witness did not invalidate the risk-note.

On whether the risk-note attached to the 74 bales on the platform: the Board relied on the pleading (which alleged the goods were "given in the possession of the defendant ... for being carried to Bombay" and that the defendant "took them in his charge ... as for being carried to Bombay") and on the consignment-notes signed by the appellant on 5 and 7 February requesting the railway to receive and forward the goods. The consignment-notes also contained conditions referring to the provisions of S. 72. Given these facts, the Board concluded the goods were delivered to and accepted by the railway for carriage on those dates, so the railway's responsibility for each parcel accrued at delivery and acceptance and the risk-note attached immediately upon such delivery and acceptance.

On the "special contract" option in the recital: the risk-note excluded consignments where the sender "shall have entered into a special contract in relation to any particular consignment." The Board found no special contract had been entered into or proposed in respect of these goods; thus, that exclusion did not apply and the consignments fell under the general risk-note.

On the "wilful neglect" exception: the appellant argued that the loss resulted from the railway's wilful neglect. The Board accepted the High Court's view (expressed by Mr. Justice Madgavkar) that although the means of extinguishing fire at Amalner were not as they ought to be (one hydrant not working, insufficient pressure), this amounted to neglect but not "wilful neglect" within the meaning of the risk-note. The Board relied on R. v. Downes and R. v. Senior, the latter defining "wilful neglect" as conduct done deliberately and intentionally with the mind going with the act. Finding no evidence or finding of deliberate or intentional conduct by the railway or its servants, the Board concluded the exception did not apply. As a result, the risk-note protected the railway from liability for the loss.

Holding and Implications

The appeal was dismissed.

Direct effect on the parties: the Board upheld the High Court's decision that the respondent railway company was protected by the risk-note and therefore not liable for the loss of the 74 bales; the appellant's recovery (previously awarded by the trial court) was not sustained on appeal. The Board ordered dismissal of the appeal with costs.

The opinion does not articulate broader legal or policy implications beyond the parties' dispute; the decision turned on application of S. 72, the construction of the approved form and execution requirements, facts demonstrating delivery and acceptance, and the interpretation of the phrase "wilful neglect" as requiring deliberate or intentional conduct.

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Ardeshir Bhicaji Tamboli v. Agent, G.I.P. Ry. Co., Bombay

Lord Chancellor.-

The appellant, who is a commission agent carrying on business in the Bombay Presidency, delivered on the 5th February 1920, 128 bales, and on the 7th February 1920, 162 bales of cotton at the Amalner Station of the respondent company for transport to the appellant's business premises at Kurla. Of the 290 bales so delivered, 216 were duly put on board the respondent company's 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 the 25th February 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 company's servants, and claiming damages for his loss.

The suit was tried by the Subordinate Judge of Dhulia, who found that the respondent company's 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 3rd November 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, Ry. Administration quotes both Owner's 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. Ry. Administration at special or reduced Owner's risk rates instead of at ordinary tariff or Railway risk rates, I/we, the undersigned, in consideration of such consignments being charged for at the special reduced or Owner's risk rates, do hereby agree and undrtake to hold the G. I. P. Ry. Administration and all other Railway Administrations working in connexion 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 transit from Amalner Station to Kurla Station harmless and free from all responsibility for any loss, destruction or deterioration of or any damage to all or any of such consignments from any cause whatever (except for the loss of a complete consignment or of one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration, or to theft by or to the wilful eglect of its servants, transport agents or carriers employed by them) before during and after transit over the side Railway or other Railway lines working in connexion therewith or by any other transport agency or agencies employed by them respectively for carriage of the whole or any part of the said consignments : provided the term ''wilful neglect' be not held to include fire, robbery from a running train or any unforeseen event or accident.

The note bore the signature of Tamboli Brothers, which is the name under which the appellant carries on business, and was witnessed by Jamsetji Tamboli and another person.

On the hearing of the appeal before this Board, the finding of negligence, which had been concurred in by both the Courts in India, was not disputed, but it was argued that on several grounds the risk-note did not protect the respondent company from liability.

First, it was said that the note did not comply with the requirements of S. 72, Indian Railways Act, 1890, which requires that an agreement purporting to limit the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods shall in so far as it purports to effect such limitation be void unless (a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and (b) is otherwise in a form approved by the Governor-General in Council. It appeared that the signature of Tamboli Brothers affixed to the risk-note was in the handwriting, not of the appellant himself, but of his nephew, Jamsetji Tamboli, and it was argued that a signature in the name of the firm was ineffective unless it appeared on the face of the document that the signature was affixed either by the sender himself or by the hand of an agent whose agency was disclosed. In their Lordships' opinion this objection has no weight. It was plain on the evidence that Jamsetji had full authority to sign the name of the firm, and if so, it was unnecessary that he should purport to sign it as agent. If authority for this proposition is required, it will be found in the case of France v. Dutton [1891] 2 Q. B. 208 : 60 L. J, Q. B. 488 : 39 W. R. 716 : 64 L. T. 793.

It was further argued that the risk-note was void as not being in a form approved by the Governor-General in Council. It was admitted that the body of the note was in the form H approved by order in Council ; but the form so approved contains at the end of it space for the attestation of the execution of the document by two witnesses, and it was said that as Jamsetji Tamboli, the first witness attesting the risk-note, was the person who executed the risk-note in the name of the firm, he was not a suitable witness to its execution. If it were an essential part of the form approved by the Governor-General in Council that the note should be attested by two witnesses, it would, no doubt, be necessary to consider whether Jamsetji Tamboli could both execute and witness the document ; but in their Lordships' opinion the attestation by two witnesses is not part of the document prescribed. Para, (a), S. 72 (2), Act, 1890, which alone deals with the execution of an agreement of this nature, does not provide that the agreement shall be attested ; and para, (b) of the same sub-section, while it requires that the form shall be approved by the Governor-General in Council, does not entrust that authority with the duty of providing for the attestation of the document.This being so it cannot be held that attestation by two witnesses, although contemplated in the form as approved, was an essential part of the form. This argument, therefore, falls to the ground.

But the principal argument put forward on behalf of the appellant was, that the risk-note did not attach to the 74 bales in question at all. It was pointed out that the note, by the terms of the recital contained in it, applies to goods despatched by the sender and charged for by the railway administration at reduced rates, and it was said that until goods had been loaded on wagons for transport, or at all events until the railway company had given a receipt for the goods specifying that they were to be carried at the reduced rate, the risk-note had no application to them, and the railway company were mere ordinary bailees of the goods. In their Lordships' opinion this contention cannot be supported. The appellant, in his plaint, pleaded that the 290 bales were

given in the possession of the defendant at the Amalner Station on the 5-2-1920 and 7-2-1920, respectively, for being carried to Bombay, and that

the defendant took them in his charge on or about the aforesaid dates as for being carried to Bombay.

This pleading is fully supported by the consignment-notes signed by the appellant on the dates of the delivery of the goods, namely, on 5th and the 7th February : for by each of these consignment-notes he requested the railway company to receive the goods therein described and forward them by goods train to Kurla. Further, the conditions endorsed on each of the consignment notes provided that, when articles were delivered for conveyance, the responsibility of the railway for the loss, destruction or deterioration of the articles should be subject to the provisions of S. 72, Indian Railways Act, 1890. In these circumstances it appears to their Lordships that the goods were delivered to the railway company for carriage and were so accepted and that consequently the responsibility of the railway company for each parcel of goods accrued forthwith on the delivery of the goods and the acceptance of such delivery - that is to say, on 5th and 7th February - and accordingly that the risk-note attached to them immediately on such delivery and acceptance. Reliance was placed on the provision contained in the risk-note which prevented the note from attaching if the sender

shall have entered into a special contract in relation to any particular consignment,

and it was suggested that in view of this provision, which was referred to as an option to the sender to enter into a special contract, the note did not attach until the goods were actually despatched. The answer is that no such special contract had been entered into, or indeed proposed, as to these particular goods, and accordingly that they fell under the general provisions of the risk-note. This contention, therefore, also fails.

Lastly, it was argued on behalf of the appellant that the loss of 74 bales was due to the wilful neglect of the railway administration or its servants, and accordingly that the case fell within the express exception contained in the risk-note. Upon this point their Lordships find themselves in agreement with the opinion of Mr. Justice Madgavkar, which was expressed as follows :

The remaining question is whether any wilful neglect on the appellant's part was proved. It appears upon the evidence that the means of extinguishing fire ware not as they ought to be in the case of a large cotton exporting station such as Amalner. One hydrant was certainly not working and the water was not at sufficient pressure. Probably, on the whole, this was neglect, but not, I think, wilful neglect within the meaning of risk-note form H, so that the company should be made liable merely on this account.

In support of this view reference may be made to the cases of R. v. Downes [1875] 1 Q. B. D. 25, and R. v. Senior [1899] 1 Q B. 283 : 68 L. J. Q. B. 175 : 79 L. T. 562 : 63 J. P. 8 : 47 W. R. 367 : 19 Cox. C. C. 219 : 15 T. L. R. 102, in the latter of which cases Lord Russell interpreted the expression "wilful neglect" as meaning that the act is done deliberately and intentionally and not by accident or inadvertence but so that the mind of the person who does the act goes with it. In the present case there was ample evidence of neglect, but no evidence or finding of wilful neglect ; and accordingly it is unnecessary to consider the effect of the final proviso to the risk-note which declares that "wilful neglect" shall not include fire. For these reasons their Lord-ships agree with the decision of the High Court of Judicature at Bombay, and they will humbly advise His Majesty that this appeal fails and should be dismissed with costs.

Appeal dismissed.

Ardeshir Bhicaji Tamboli v. Agent, G.I.P. Ry. Co., Bombay

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments (as accepted by the Court)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ardeshir Bhicaji Tamboli v. Agent, G.I.P. Ry. Co., Bombay

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