JUDGMENT
1. This is a second appeal by a plaintiff against concurring decrees of two lower Courts dismissing his suit for damages against the E.I. Ry. Co. and the Secy. of State for India in Council. The point which has been argued before us in appeal is a very short point of law. The lower appellate Court found in the paper-book on p. 16, line 16:
From the evidence on the record and the circumstances and probabilities of the case, I am satisfied that plaintiff's son refused to take delivery of the goods in question because the Station Master was not prepared to reweigh the goods, as desired by plaintiff's son and not because the Station Master wanted plaintiff's son to sign the delivery book before showing the goods to the latter. A railway company is not bound by law either to re-weigh goods or certify shortage at the time of delivery to the consignee. Therefore, the refusal of a railway company to re-weigh goods before delivery does not justify a consignee in refusing to take delivery of the goods: vide, Suraj Mal Marwari v. Agent B.N. Ry. Co. [1919] 58 I.C. 200. and Kokamal v. G.I.P. Ry. Co. [1913] 11 A.L.J. 775.
2. The consignment was booked to the plaintiff as consignee, and it is admitted by the learned Counsel for the respondents that there was no risk-note, and, therefore, the consignments travelled at railway risk. We consider, however, that this factor that there has been no risk-note is not of importance in deciding the general question as to whether the consignee has a right to demand reweighment before taking delivery. The learned Counsel for the respondents relies on a number of rulings which begin with Janki Das v. B.N. Ry. Co. [1912] 15 C.L.J. 211. In that ruling it is noted that the plaintiffs:
refused to take delivery of the goods which were consigned to them except on certain conditions with which the railway company were not required by law to comply demanded a reweighment and a certificate of shortage. The railway is not required by law either to reweigh or to certify shortage.
3. This was in the judgment of the District Judge. The point as to whether the railway company was bound to comply with a demand for reweighment was not discussed at all in the ruling and it will be noted that what the plaintiff demanded was not merely a reweighment but a certificate of shortage. Accordingly this ruling is no authority whatever for the proposition advanced by the lower appellate Court. But this ruling has been treated as authority for this proposition by all subsequent rulings to which reference has been made. Thus in Ramjash Agarwala v. Indian General Navigation and Ry. Co. Ltd. [1917] 22 C.W.N. 310, the decision is based solely on Janki Das v. B.N. Ry. Co. [1912] 15 C.L.J. 211 without any further reason whatever. We may also note that the circumstances in Ramjash Agarwala v. Indian General Navigation and Ry. Co. Ltd. [1917] 22 C.W.N. 310 were different, because it was a case where goods had been conveyed by a steamer and on arrival of the goods at the place of destination the plaintiff's servant paid the freight, signed the bill of lading and gave a clear receipt in the delivery register of the defendant company. It was after this that he asked the booking clerk to reweigh the goods that the refusal was made. The next to which reference has been made is Jagan Nath Marwari v. E.I. Ry. Co. [1918] 22 C.W.N. 902. There is no reason whatever given in the judgment of the "single Judge who decided this case. The above three rulings were of the Calcutta High Court. The next case is of the Patna High Court, Suraj Mal Marwari v. Agent, B.N. Ry. Co. [1919] 58 I.C. 200., In this ruling reference is made to the three decisions of the Calcutta High Court and no reason is given for the decision that:
a railway company is not bound by law either to reweigh goods or certify shortage at the time of delivery to the consignee.
4. The next case to which reference was made was of the Allahabad High Court in Jwala Prasad & Co. v. G.I.P. Ry. [1913] 11 A.L.J. 772. That case was materially different, because the railway company did actually reweigh the consignment before giving delivery and the question was whether the railway company was bound to open the consignment which consisted of wine in boxes and examine it before delivery. That question is materially different from the one before us. There is, however, printed at pp. 775 and 776 a judgment otherwise unreported of this Court in Kokamal v. G.I. Ry. [1913] 11 A.L.J. 775. In that judgment it is noted as follows:
It is quite clear that the real reason why the plaintiff declined to take delivery of the chillies was not that the railway staff refused to reweigh them, but that they refused to reweigh them and allow the plaintiff to make remarks in their books which, according to them were incorrect.
5.That is a materially different proposition from the proposition of the lower Court and so far as the ruling goes, it indicates that the plaintiff would have been within his rights if he had confined his demand to a mere reweighing of the goods.
6. On behalf of the appellant reliance is placed on a judgment of this Court in The Rohilkhand and Kumaun Ry. v. Ismail Khan [1915] 13 A.L.J. 417. This was no doubt the judgment of a single Judge of this Court, but we consider that it is of weight. It was held that the railway company was bound to offer the consignee reasonable facilities for weighing the goods on the spot. In this ruling the consignment was under a risk-note. In the present case there was no risk-note, and, therefore, the case for the consignee is still stronger. At p. 421 it is laid down:
The consignee was entitled to have the goods weighed then and there before he surrendered the railway receipt. When this had been done he was entitled to endorse on the back of the railway receipt a statement that he accepted delivery of the consignment as it stood, while taking note of the fact that its actual weight was only so much and not the full weight as given in the railway receipt itself. He would probably also have been entitled to add to his endorsement any remarks which he might think proper to make for his own protection regarding the appearance of the consignment at the moment of his accepting delivery. The Station Master, or other local officials of the railway company at the delivery station were bound to offer to the consignee reasonable facilities for weighing the goods on the spot, ant would in my opinion be going beyond their legal rights if they insisted on the surrender of the railway receipt with a mere endorsement to the affect that the goods therein specified had been duly received, before allowing the consignee access to the goods for the purpose of verifying the weight.
7. We consider that is a sound exposition of law on the subject. As none of the rulings in question deal with the fundamental laws on the subject, we consider that a brief reference may be made to these provisions of law. Section 72, Railways Act, lays down as follows:
The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 Contract Act, 1872.
8. It will be noted that this subsection deals with the responsibility of the railway company for loss, destruction or deterioration only. It does not exclude other sections of the Indian Contract Act in regard to bailment. If Section 72 had Intended to exclude those other sections, then there would have been a reference to those other sections in Section 72(3) which says:
Nothing in the common law of England or in the Carriers Act, 1865, regarding responsibility of common carriers with respect to the carriage of animals or goods shall affect the responsibility as in this section defined of railway administration.
9. It is only liability of common carriers under the common law of England and under the Carriers Act of 1865 that is declared not to be applicable to railway companies-Accordingly we hold that the sections of the Contract Act dealing with bailment do apply to a railway company, except so far as they may be excluded by the Railways Act or rules made under that Act. One of these sections of the Contract Act is Section 160, which runs as follows:
It is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed had expired, or the purpose for which they were bailed had been accomplished.
10. Accordingly under this section it was the duty of the railway company to deliver the goods in accordance with the directions of the consignor, provided of course that those directions were reasonable. When the consignor eaters on a railway receipt that another person is to be the consignee, we consider that Section 167 also applies to reasonable directions for delivery given by the consignee. The Indian Railways Act, Section 54, states that rules may be made by the railway administration subject to the control of the Governor-General in Council for the delivery of goods. A printed book of such rules for the East Indian Railway has been produced by the counsel for the company and placed before us. It is styled as "Bast Indian Railway Traffic Code, part 2, Goods Traffic." It would no doubt be open to the railway company to make a rule on this subject directing that there should be no reweighment on delivery, but we find no such rule as contained in this Manual. Rule 73 deals with the subject and it provides that a proportion of not less than 20 per cent of all goods should be reweighed at the destination.
11. It also provides that packages showing signs of pilferage or from any cause whatever suspected of underweight, must in all cases be separately reweighed in the presence of the Station Master, in addition to those cases provided for in the traffic rules. That rule shows that at the request of a consignee a Station Master is bound to reweigh if from any cause whatever the consignee suspects that there may be underweight. It is not necessary that the package should show signs of pilferage or damage. In addition to this case there is also the general provision laid down that no less than 20 per cent of the consignment must be reweighed. Accordingly we consider that the spirit of rules intends that under request of a consignee reweighment should be made. It is entirely a reasonable request, for if a consignee takes delivery of a consignment and removes that consignment from the station premises, it is very difficult for him to get it reweighed elsewhere with reliable evidence which would be accepted by a Court that the whole consignment as delivered to him by the railway company had been reweighed. In fact the only chance that a consignee has of proving to the satisfaction of a Court that there was shortage of weight in the consignment on arrival at the destination is by having that consignment reweighed by the servant of the railway company before it is removed from the railway company's premises. If we were to uphold the contention of the railway company, it would be almost impossible for any consignee to prove a claim for shortage in weight against the company. No doubt it may be a habit of consignors to exaggerate the weight of a consignment, but in order that they should do so there must be dishonest connivance on the part of the railway company's staff.
12. We consider that the correct proposition of law is that a railway company is bound to reweigh a consignment before delivery is taken at the request of the consignor. We lay down this proposition in a case in which there is no risk-note. As risk-notes vary in their terms, we do not apply the proposition generally to cases of risk-notes.
13. Accordingly we remand this case to the lower appellate Court for disposal on issue i which is: "what relief if any is the plaintiff entitled to?" We have held that the plaintiff is entitled to relief on account of the railway company wrongfully refusing reweighment of the goods on his request. The lower appellate Court will arrive at a decision as to what is the amount of damages to which the plaintiff is entitled, and will grant him a decree for that amount.
14. Costs hitherto incurred will be costs in the case.