JUDGMENT 1. The subject-matter of this rule is a decree passed by the Subordinate Judge of Mozufferpore exercising the powers of a Judge of the Small Cause Court against the East Indian Railway Company for compensation on account of short delivery of certain goods that were consigned to that Company at Mozufferpore for despatch to Burdwan and Howrah. The consignor at the time that the said goods were made over to the Railway Company at Mozufferpore signed what is known as a "Risk note" prescribed by the Governor-General in Council under sec. 72 of the Indian Railways Act (IX of 1890). The consignor paid a special reduced rate, instead of the ordinary tariff rate chargeable for such consignment: and he agreed as follows:-- "I, the undersigned, do, in consideration of such lower charge, agree and undertake to hold the said Railway administration and all other Railway administrations working in connection therewith, and also all other transport agents or carriers employed by them respectively over whose Railways or by whose transport agency or agencies the said goods or animals may be carried in transit from--station, to--station, harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever before, during and after transit over the said Railway or other Railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignment." The Railway Company, however, were not in a position to deliver to the consignee the whole of the goods that were consigned to their care and, as we have already indicated, the Plaintiff, the consignor, brought a suit for compensation against the Railway Company for such short delivery of goods. 2. The Judge of the Small Cause Court, viewing the position of the Railway Company as purely one of a bailee under the Indian Contract Act, has held that, in the absence of any evidence on the part of the Railway Company that they had taken in the matter of these goods the ordinary care, which a bailee is bound to take, they are bound to make good to the Plaintiff all loss that he has sustained by reason of the short delivery. The section of the Railway Act which bears upon this matter is sec. The section of the Railway Act which bears upon this matter is sec. 72 which runs as follows :-- (1) "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 secs. 151, 152 and 161 of the Indian Contract Act, 1872. (2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it--(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. (3) "Nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway administration." 3. No doubt, as defined in the first portion of this section, the responsibility of the Railway Company is that of a bailee under the Indian Contract Act, but it is subject to the other provisions of this Act, one of the provisions being found in the latter part of the same section, and this prescribes that an agreement purporting to limit that responsibility, namely, the responsibility as specified in the earlier part of the section, shall be void, unless it is in writing signed by the consignor, and is in the form prescribed by the Governor-General in Council. 4. It appears to us that the Judge of the Small Cause Court hardly appreciated the bearing and relevancy of the second part of sec. 72 which we have just quoted. As already stated, the consignor paid a special reduced rate, instead of the ordinary tariff rate chargeable for the consignment in question ; and it was in consideration of his being allowed to pay such special reduced rate, that he undertook to hold the Railway Company harmless and free from all responsibility for any loss, destruction, deterioration or damage of the said consignment. The Subordinate Judge seems to think that this simply limits the responsibility of the Company and does not altogether do away with their responsibility and that it appears to the case of a partial loss or partial destruction of the goods, but we are enable to take the same view. 5. The question raised in this rule seems to have been considered on several occasions both by this Court, and by the Allahabad and Bombay High Courts. In the case of Moheswar Das v. Carter I. L. R. 10 Cal. 210 (1883) which was a case governed by the old Railway Act (IV of 1879), but which in sec. 10 contained provisions very similar to those that are to be found in sec. 72 of the present Act, this Court held that the Railway Company could not be held liable to account to the consignee for any loss from any course whatever during the whole time that the goods were under their charge, inasmuch as the Plaintiff had entered into a special contract to hold them harmless. This case seems to have been followed in the case of the East Indian Railway Company v. Bunyad Ali I. L. R. 18 All. 42 (1895). The learned Judge there had to consider the provisions of sec. 72 of Act IX of 1890, and they held that the contract embodied in the risk note before them was valid and legal contract, within the terms of sec. 72 of the Act. Similarly in Tippama v. Southern Marhatta Railway Co. I. L. R. 17 Bom. 417 (1892), which was a case of short delivery of goods, the learned Judge held that the contract as embodied in the risk note was such as absolved the Railway Company from all liability to make good to the consignee any loss that might have been occasioned by reason of the short delivery of goods. The same principle was affirmed in the case of Balaram Hari Chand v. The Southern Marhatta Railway Company I. L. R. 19 Bom. 159 (1894). In this view of the matter, we are clearly of opinion that the decree passed by the Judge of the Small Cause Court against the East Indian Railway Company is wrong in law and ought to be set aside. The rule is accordingly made absolute with costs, three gold mohurs.