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Judgment
Ross, J.—This is as appeal by the plaintiff in a suit against the respondent the E.I. Ry. Co., for damagas on account of deterioration in condition of 72 bags of potatoes that were consigned from Hardwani on the Oudh and Rohilkhand Railway to Gay a on the East Indian Railway. The consignment was covered by risk-notes in forms A and H, and one of the conditions of these risk-notes was that the goods should be carried from Hardwani to Gaya.
The risk-notes contemplate the ordinary route, as was held in Vali Mahomed Hamad v. G.I.P. Ry. Co. AIR 1922 Bom. 74 and, if the goods were not carried by the proper route, then it must be taken that the contract went outside the risk notes altogether and the position of the railway company became that of an ordinary bailee. Now it has been found that the goods came by the proper route as far as Mogulsarai. From there instead of being sent by the Grand-chord line to Gaya they were sent by the main-line as far as Jhajha and were then returned to Gaya. The result was that the transit from Mogulsarai to Gaya instead o� taking two days which, according to the evidence, is the ordinary time, took nine days. This is sufficient to deprive the railway company of the protection of their risk-notes, and then the question is simply whether the goods were delivered at the the proper time within the meaning of Section 161, Contract Act.
Now in no view can it be held that the delivery of goods, which were received at Mogulsarai on the 21st of September, at Gaya on the 1st of October, when the ordinary time of transit is two days, was delivery within the proper time, and the finding of the district judge is that there was negligence on the part of the railway company in this respect. The railway company must, therefore, be held liable for the deterioration in condition of the potatoes.
In this view I would allow the appeal, set aside the decree of the learned district judge and restore the decree of the munsif. The appellant is entitled to his costs in this Court and in the Court of the district judge also.
Allanson, J.
I agree.