The liability of a carrier for loss of luggage during domestic air carriage is limited to Rs. 80/- per kilogram under Rule 22(2) of the Indian Carriage by Air Act, 1934, unless a special declaration of value is made and a supplementary sum is paid.

LALIT MOHAN SHARMA, J.

1. The respondent has filed the suit out of which this appeal arises for damages on account of loss of a suit-case. He travelled from Delhi to Patna by Flight No. 411 on the 30th May, 1966 with two pieces of luggage deposited, with the Corporation and was issued ticket Nos. 593450 and 593451. On reaching Patna, only one item of the luggage booked under ticket No. 593450 was delivered to him. He obtained a certificate from the Corporation about the non-delivery of the other item which was an attache-case. 4 kilograms in weight. He received a letter from the defendants informing him about the discovery of an unclaimed luggage at Bombay and requesting him to submit a detailed description of the contents of his luggage which he did. According to the defence case, it was found that the luggage at Bombay did not belong to the plaintiff and the same could not be given to him. The defendant offered a sum of Rs. 320.00 (calculated on the basis of the weight of the attache-case at the rate of Rs. 80/-per kilogram) by way of final settlement of the plaintiffs claim on account of the loss which was refused. After serving a notice, the plaintiff filed the present suit claiming a sum of Rs.3330.00 as the value of the lost luggage with interest thereon.

2. In reply to the plaintiffs claim that the defendants wrongly refused to deliver the luggage found at Bombay, they pleaded that the description given by the plaintiff of the attache-case and its contents clearly indicated that the Bombay luggage did not belong to him. It was also suggested that they did not make any commitment in this regard, as wrongly interpreted by the plaintiff. Besides taking several technical defence, the defendants pleaded that their liability was governed by the provisions of the Indian Carriage by Air Act, 1934 and the rules thereunder and they cannot be saddled with a decree based on the assumption that the law relating to the common carrier is applicable in the suit. It was alternatively stated that in one of the conditions mentioned in the ticket issued, it was indicated that the Corporation could not be liable for damages beyond the statutory limit.

3. The trial Court overruled the plea of estoppel, waiver and acquiescence, but held that the suit was barred by limitation. The learned Munsif also recorded a finding that the plaintiff had failed to prove his case of loss on merits.

4. The plaintiff appealed. The learned Subordinate Judge, Patna, who heard the appeal, reversed the finding of the trial Court on the question of limitation and the merits of the case with respect to the loss sustained. These findings have not been challenged before us. I need not, therefore, state the detailed facts relevant to these issues. On the question as to whether the liability of the corporation was statutorily limited, the learned Subordinate Judge referred to The Carriage by Air Act, 1972 and decided the point against the defendants and decreed the suit. The Indian Airlines Corporation and its officers have challenged the decree in the present second appeal.

5. Mr. Samir Kumar Ghose, appearing in support of the appeal contended that the Court below seriously erred in considering the provisions of the 1972 Act which has no application whatsoever to the present case. The loss of the attache-case took place in 1966 and the suit was filed in 1969, that is, before the coming into force of the said Act. He placed before us para 14 of the written statement which clearly mentioned The Indian Carriage by Air Act, 1934 and the rules thereunder and contended that in view of S. 4 thereof read with R. 22(2), the defendants liability was limited to Rs. 320/-. The argument appears to be well founded.

6. The Indian Carriage by Air Act, 1934 was enacted in the wake of the Convention for the unification of the rules relating to the international carriage by air signed on the 12th Oct. 1929 at Warsaw and the preamble expressly mentions that the Convention was in