Mahabarsha Bankapore v. Secretary Of State For India In Council

Holmwood, J.:— This second appeal arises out of a suit brought by a mohajan of the Bombay Presidency against the Secretary of State for India in Council in respect of certain goods which were lost in transit on one of the connected Bailways which carried the goods from Beldanga to Beraras. The goods were silk goods of the value of Rs. 500, and the principal defence of the Railway Company was that they came under sec. 75 of the Railways Act IX of 1890, and as they were not insured the Railway was free from all liability under the said section. There was a further defence that the sender of the consignment executed a risk-note in Form Y specially absolving the Railway Company from all liability and the package was therefore booked and carried at owner's risk.

The Court of first instance found as a fact on the first point that the value of the contents of the parcel was declared at the time of booking as required by sec. 75 and that no insurance charge was demanded on behalf of the Railway. On these findings of fact no appeal was made as regards sec. 75, but an appeal was preferred as regards the execution of this risk-note Y under sec. 72 of the Act. The Subordinate Judge who first heard the appeal held that the Railway Company could not succeed and, he gave the Plaintiff Rs. 500 compensation. His decision was apparently based on the contention that the Railway Administration must show that not withstanding its proper care the goods were bonâ fide lost or destroyed by causes over which they had no control, that is to say, without any reference to the risk-note Y he appears to have been prepared to treat the Railway Company under the ordinary law of bailment without any exception even by contract. But the matter coming before this Court in second appeal Mr. Justice Chapman remanded the case holding that the Subordinate Judge ought to have come to a definite finding whether the risk-note was genuine or not. He does not appear to have noticed that the risk-note was not signed by anybody, and he appears to have thought that the name of the Marwari the principal who was all the time in Bombay is the signature required by the law.

It was argued before the Subordinate Judge on remand and has been also argued before us, and we think rightly argued, that in the present case the agent Kundan Mul who consigned the goods to the Railway did not sign his own name on the risk note-Ex. C but the Plaintiff's name, hence there was not sufficient compliance with the provisions of sec. 72, cl. (2). We think that this must prevail on the wording of the section. An agreement purporting to limit that responsibility shall in so far as it purports to effect such limitation be void, unless it is in writing signed by or on behalf of the person sending or delivering to the Railway Administration the goods. The Form which has been approved by the Governor-General in Council is a printed form, and therefore there is no binding act of the person sending the goods or his agent except the signature, and when there is no signature it cannot be said that there is a binding agreement to limit the responsibility. In this case it is obvious that there is no signature. The agent Kundan Mul instead of signing his own name and stating that he signed on behalf of Mahabarsha Bankapore his principal simply wrote Mahabarsha. It is not even the correct name of his principal. Supposing the agency had in the meantime determined it would have been impossible for the principal to prove that the agency had ceased inasmuch as the agent's name does not appear and he could only have been held liable because his own name appeared. He could have at once rid himself of the liability by showing that he did not sign the document. In contracts of this nature which derogate from the ordinary law of bailment the parties cannot be too careful to carry out the exact provisions of the law. When the law says “signed” it means the writing of the name of the person who signs it either by his own hand or by the hand of an agent who must be disclosed and have authority. In this case the writing was not executed at all in our opinion, and the result is that the Railway Company's liability cannot be escaped by reason of this alleged risk-note in Form Y.

The decree of the Subordinate Judge must be set aside and the Plaintiff's suit must be decreed for the amount allowed by the first Subordinate Judge, namely, five hundred rupees, with costs in all Courts.

Mullick, J.:— I agree that in the circumstances of this case there was not a sufficient and proper signing of the risk-note.

N.G