JUDGMENT Randhir Singh, J.
1. Both these appeals have been heard together as they arise out of two similar suits in which tile parties were common and which were disposed of by a single judgment.
2. The two suits were instituted by Sri S. Bagchi, plaintiff-respondent, for the recovery of damages in respect of two consignments of oranges booked from railway station Kalambha to Lucknow, Both of these consignments were full wagon-loads of oranges. One of them was consigned on the 21st of March, 1946, and the goods were loaded in wagon No. 18182.
The second consignment was also booked from the same railway station Kalambha for Lucknow on the 21st of April, 1946. The first consignment was delivered at Lucknow on the 30th March, 1946 and the second consignment was delivered at Lucknow on the 3rd May, 1946. It was alleged on behalf of the plaintiff in the two suits. that the goods which were oranges were booked to be carried by passenger train but the railway did not carry out the contract of carrying the goods by passenger train and were also negligent on account of which the oranges deteriorated and the plaintiff was put to considerable loss in the two consignments. He claimed Rs. 5,000/- as damages in suit No. 45 of 1947 and Rs. 10,500/-in suit No. 59/5 of 1947.
3. The Union of India contested the suit. It was denied that the defendant had committed any breach of contract or that its servants had been guilty of misconduct or negligence. It was also denied that the plaintiff was the owner of the goods. A plea was also raised that the suit was bad for want of a valid notice under Section 77 of the Indian Railways Act.
4. The lower court found that the plaintiff was entitled to sue and that there was a contract for the carriage of the goods by passenger train. It also found that the defendant was guilty of a breach of the contract and misconduct and as such was liable for damages. The issue in respect of the validity of a notice under Section 77 of the Indian Railwavs Act was also decided in favour of the plaintiff. The two suits were ultimately decreed by the court below for recovery of Rs. 576/9/- & Rs. 6,204/5/- respectively. The defendant has now come up in appeal.
5. Learned Counsel for the appellant has not challenged the findings of the court below on issues Nos. 1, 4 and 5. The amount of damages decreed by the court below has also not been challenged. He has confined his arguments to the question of the liability of the railway for payment of damages.
6. The first point pressed on behalf of the appellant in these two anneals is that the plaintiff-respondent having executed risk-note Form B the railway was absolved from all responsibility for demages arising out of deterioration etc. of the perishable goods which had been bonked on specially reduced rates. and such there had been no breach of contract on behalf of the railway it is in evidence and is not disputed that both the consignments were taken by goods train ever a part of the mute for which they were booked. Railway wagon No. 18182 was carried by goods train from Jhansi to Juhi and again from Juhi to Lucknow. The wagon No. 63130 in the other suit was also similarly carried by a goods train from Juhi to Lucknow.
The point for consideration, therefore, is whether under the terms of the contract it was open to the railway administration to carry the wagons containing oranges by a goods train. It is not disputed that Coaching Tariff rates were charged for both the consignments. The learned Civil Judge has pointed out that the Coaching Tariff contains general rules for the conveyance of passengers and the rules and rates and conditions for the conveyance by trains carrying passengers of other traffic such as luggage, parcels and animals etc. This Tariff is wholly apart and distinct from the Goods Tariff which applies to goods carried by goods trains. Oranges and other fresh fruits are usually booked in parcels to be carried by passenger trains and there is also a provision for booking oranges in full wagon-loads for which special rates have been provided in the Coaching Tariff from Kalambha to Lucknow and to certain other stations also. The railway receipts in these two cases show that oranges were booked in wagon-loads from Kalambha to Lucknow.
There is, therefore, no manner of doubt that the intention of the parties and the contract was that the wagon would be carried by a special train known as COG or by a passenger train. The coaching instructions which are to be found in the Circular Ex. A14 also indicate the manner in which wagon-loads of oranges were to be dealt with when consigned. In paragraph 5 under the heading "Clearance" it is mentioned:--
"To via Itarsi. Tariff to via Itarsi from Nagpur Amla section will be cleared by Coaching Specials which will be run every day." This clearly shows that wagons of oranges booked to be sent via Itarsi were to be sent by Coaching Specials which were to run every day. Learned Counsel for the appellant has not been able to show us any provision in the Coaching Rules under which wagon-loads of oranges or even parcels of oranges booked under the Coaching Tariff Rates could be sent by goods trains. There is, therefore, no doubt that the two consignments which are in dispute in the present two cases could not be sent by goods train during any part of the journey.
7. If a carrier of goods, such as the railways, undertakes to carry goods by passenger trains or by special trains and fails to keep the contract and carries perishable goods by a mode which is much slower, such as a goods train, and loss is occasioned to the consignee the railway would evidently be guilty of a breach of the contract and the risk-note Form B on which much reliance has been placed by the defendant-appellant would not come to its rescue.
It is only when the railways perform their part of the contract in the manner in which it ought to have been done that they are absolved from any liability with regard to any loss or destruction arising out of anv cause whatsoever, but this indemnity would not be available if the railways do not carry the goods in the manner contracted. It cannot be doubted that the goods train is a much slower means of transport than passenerer train or a coaching special.
8. The other point when has been urged is that there was no negligence or misconduct on behalf of the railway employees. The wagon No. 181182 remained detained at Ttarsl for 28 hours and again at Jhansi for 34 hours. It remained in detention at Juhi for a little over 19 hours. The explanation given for this unusual detention is that there was other traffic to be cleared and in some cases power was not available. If the railway is unable to provide locomotives for hauling the goods accepted for transit this cannot be said to be a cause which was not within the control of the railway.
In the other case also the wagon No. 53130 was held up at Jhansi for two days and 11 hours and again at Juhi for four days when it was ultimately despatched by a goods train. The reason given for this inordinate delay in the despatch of the wagon was again want of power. This again cannot be said to be a cause not within the control of the railways. The view taken by the court below that the railway was guilty of misconduct or negligence appears to us, therefore, to be correct in the circumstances of this case and we hold that the railway did not perform its part of the contract in the manner contracted.
Whenever a person despatches fresh fruits, the evident intention is that the goods will be transported without avoidable delay and this will be the essence of the contract. If, however, goods perish or loss is occasioned to the owner of the goods the railway is absolved from responsibility only if the goods have been carried in the manner contracted.
.There is, therefore, no force in either of the two contentions raised on behalf of the appellant and we are of opinion that the defendant-appellant did not perform its part of the contract in the manner contracted and was also guilty of negligence amounting to misconduct and is, therefore, liable to make good the loss caused to the plaintiff. The amount of damages decreed by the court below has not been disputed.
9. No other point has been pressed in arguments.
10. As a result, both the appeals fall and are dismissed with costs to the respondent.