TMI Blog1953 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ailway receipts to the plaintiffs in Bombay. ' When the plaintiff made inquiries of the railway authorities as to the bars, he was informed that they had been delivered to one Yogendranath. Thereupon, having served the statutory notice under Section 80, Civil P. C., the plaintiff filed this suit claiming a sum of ₹ 20,496-15-6 as damages for non-delivery of these four silver bars. 2. Now, before consigning these bars the plaintiff had signed a risk note in form 'X', and the question that arises for our consideration is, what is the liability of the railway administration under that risk note, and in order to determine that liability we have in the first instance to consider the effect of Sections 72 and 75, Indian Railways Act. Section 72 defines 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, and that responsibility is in all respects the same as that of a bailee under Sections 151, 152 and 161, Contract Act. Sub-section (2) of section 72 renders any agreement which limits the responsibility of the railway administration defined in Sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to understand why the Legislature should have attempted to make a distinction between an article delivered to the railway administration in a parcel or package an article delivered without its being packed-Mr. Banaji says that the whole principle underlying Section 75 is that when an article is delivered to the railway administration of the nature mentioned in the second schedule, the railway administration takes a greater risk in transporting that article and therefore it is exempted from the liability under Section 72 (1) unless the consignor declares the value of the article and gives an opportunity to the railway administration to decide whether it would carry that article with out charging an additional insurance premium or not. Mr. Banaji further contends that it that is the principle underlying Section 75, that principle should apply whether the articles mentioned in the second schedule are in a parcel or not. We agree with Mr. Banaji that we find it rather difficult to understand why the Legislature should have emphasised the fact that the articles mentioned in the second schedule should be contained in any parcel or package before Section 75 (1) could apply. But it is ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, unless you have a parcel or a package in which the article is contained, Section 75 (1) can have no application. The further words of Section 75(1) also make it clear that this is the only possible construction of Section 75 (1) because Section 75(1) requires the consignor to declare the contents of the parcel or package in order to fix the railway administration with responsibility under Section 72 (1). The contents of a parcel or package can only be declared provided there is a parcel or a package and something is contained in the parcel or package. 4. Two High Courts have taken different views of the proper meaning to be attached to this expression, and Mr. Banaji has strongly relied on the decision of the Lahore High Court which supports his view, and the decision is to be found in - 'Kundan Lal Barn Mal v. Secretary of State AIR 1929 Lah 698 (A). That was also a case of a bar of silver which was consigned under the risk note in form 'X' and the Court held that it was not open to the consignor to challenge the facts mentioned in the risk note 'X' because that constituted the contract between the parties. With respect, we feel difficulty in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Glass Works v. G.-G.-in Council', AIR1950All543 and the Allahabad High Court in a well-considered judgment has found it difficult to accept the decision arrived at by the Lahore High Court. The Allahabad High Court was consider ing a case where bangles were transported and the bangles were tied together so as to constitute, what the learned Judges called, garlands, and they held that where glass bangles are made into garlands by passing a string round a number of bangles and tying its two ends together, the garlands come within the meaning of parcel or package. Therefore here there were two objects; there was a string and there were the bangles which the string kept together; and it was on those facts that the Allahabad High Court took the view that it could be said that the bangles were contained in a parcel or a packet. In discussing this question they referred to a rather striking case reported in -- 'Studebaker Distributors, Ld. v. Charlton Steam Shipping Co.', (1938) 1 KB 459 (D). In that case Studebaker cars were put on board a ship without any covering, and the consignment was governed by a bill of lading which contained a clause to the effect that it was agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the liability of the, railway administration under Section. 72(1), but apart from that statutory limitation further limitations upon the liability of the railway administration can be set up provided they satisfied the two conditions laid down in Sub-section. (2), and what is urged by the railway administration is that risk note 'X' constitutes a further limitation upon the liability of the railway administration under Sub-section. (2) of Section. 72. Risk note 'X' has been approved by the Central Government and the risk note was signed as required by Sub-clause. (a). To that extent both conditions (a) and (b) of Section. 72(2) are satisfied, but what is urged by the plaintiff is that the particular form is not appropriate to the transaction to which it is sought to be applied. Turning to this risk note, it states in terms that it is approved by the Governor General in Council under Section 72(2) (b), Indian Railways Act, 9 of 1890, and then it gives a direction in what cases this has got to be used and it states to be used when the sender elects to despatch an excepted article or articles specified in schedule 2 to the Indian Railways Act 9 of 1890, whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been drawn, viz., without payment of the percentage on value authorised in Section. 75 of that Act, clearly goes to show that this risk note- only applies in those cases where the railway administration is entitled to require the consignor to pay a percentage on the value of the consignment where it is open to the consignor to elect whether to pay or not to pay, and Mr. Desai says that the only provision under the Railways Act where the railway administration can call upon the consignor to pay additional freight or a percentage on the value of the consignment is where under Section 75 the consignor sends an excepted article in a parcel or package, and as in this case the article was not sent in a parcel or package the railway administration had no right to require the consignor to pay any additional amount, and therefore this particular risk note cannot apply to a case which we are considering in this appeal. In our opinion we must hesitate to give to this risk note a construction which would make it entirely redundant and superfluous, and if it is possible and unless the construction is strained, we should give to the risk note a meaning which would go to show that the ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides that the same percentage on value should be charged in respect of articles which do not fall within Section. 75 as is to be charged with respect to the articles which fall within the ambit of Section 75. The reference to Section 75 is merely to obviate the necessity of setting out in the risk note the very percentage which is authorised under Section 75. Therefore, the risk note in form 'X' constitutes a further limitation upon the liability of the railway administration under Section 72 (1), and this limitation is by reason of an agreement which falls under Section. 72 (2) and the limitation clearly is that the railway administration is free from any responsibility under Section 72 in respect of excepted articles whose value exceeds ₹ 100 unless the consignor pays the additional freight if so required to do by the railway administration, If he pays the additional freight, then the responsibility of the railway administration continues unaffected and is the same as under Section 72 (1). Therefore, inasmuch as we have clearly a case here of an article which is specified in the second schedule whose value admittedly exceeds ₹ 100 and in respect of which no ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person. In this case, at the instance of Sir Jamshedji, we have construed the law and on the law perhaps the plaintiff has no case at all. But turning away from the law and looking to the equities of the case there can be no doubt that the railway administration is responsible for the loss caused to the plaintiff. As I have said before, it was entirely due to the dishonest servant of the railway administration that the plaintiff suffered this heavy loss of over ₹ 20,000, and we are sure that the Dominion of India, although we are dismissing his suit, will consider whether some reasonable compensation should not be paid to the plaintiff for the loss he has suffered. Sir Jamshedji has assured us that he would do his best to put forward this point of view to his client, the Dominion of India, and we have no doubt that the Dominion of India will be persuaded by Sir Jamshedji to take a fair, reasonable and equitable view of this case and do something to meet the justifiable grievance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value could have been legitimately demanded by the railway administration, and since in the case of excepted articles which are not contained in any parcel or package there was no authority in the railway administration to require the consignor to pay a percentage on the value, this form of the risk note cannot be applicable to such cases. The fallacy underlying this argument lies in the fact that when the Central Government has been authorised under Section. 72(2)(b) to approve Of a form and thereby to enable the railway administration to escape part of its normal liability as an ordinary bailee, it is quite obviously open to the Central Government to say to the railway administration that they shall not allow it to obtain a risk note in every case, that they shall approve of a form of risk note only in a limited class of cases, and to indicate what that class of cases will be. The direction contained at the head of the form approved indicates, in my opinion, the class of cases in which this risk note can be used and the Central Government in effect tells the railway administration that if it wishes to protect itself by obtaining a risk note from a consignor of excepted articl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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