The responsibility of the Railway Administration as a carrier of articles of special value is the same as that of the common carrier of goods, and the responsibility of the railway as a carrier is absolute in certain cases.

This appeal suit is directed against the judgment and decree dated 30-4-1985 rendered in O.S. No. 386 of 1981 by the Court of Principal Judge, City Civil Court, Madras thereby decreeing the suit filed by the respondents herein for recovery of a sum of Rs. 44, 300/- together with interest thereon at 9% per annum from the date of suit and for costs, as prayed for.

2. The plaint averments are that the first plaintiff sent a consignment of seven cases of textile goods, valued at Rs. 44, 330/- inclusive of packing and forwarding charged to M/s. Mahaveer Das and Brothers, Sahara Bazaar, Calcutta, as evidenced by bill dated 30-8-1977; that the consignment was insured with the second plaintiff as per the Insurance policy dated 31-8-1977 and the same was entrusted to the first defendant Southern Railway on 31-8-1977 for safe carriage by passenger train and delivery at Sahara Bazaar Railway Station of South Eastern Railways; that the parcel Way Bills have been sent through the Syndicate Bank, Madras for clearance, booking the consignment as "self" at the railway risk rate; that since the documents were not retired by the consignee, the first plaintiff's Special representative visited Sahara Bazaar and learnt that the consignment was not available at the destination and therefore, the first plaintiff issued notice under S. 78-B of the Indian Railways Act dated 10-10-1977 to the defendants; that the second plaintiff made good the loss sustained by the first plaintiff and got a letter of subrogation dated 16-2-1978 from the first plaintiff with a special power of attorney; that after issuing notice under S. 80, CPC to the defendants on 8-7-1980, the plaintiffs have come forward to file the suit for the recovery of the said sum being the loss occasioned on account of the non-delivery of the consignment.

3. In the written statement filed by the first defendant which had been adopted by the second defendant, they allege that the consignment reached its destination on 3-9-1977, and on the basis of the parcel way bill, in good gaith, they delivered the goods to Sri Bijoy Dose for Mahaveer Doss and as such the defendants are not responsible that the first plaintiff has not paid percentage charges for textile goods, which falls under the group of excepted article, and as such, the defendants are not responsible for any loss. The defendants would also dispute the quantum of loss suffered by the plaintiffs and the issuance of notices under S. 78-B and 140 of Indian Railways Act.

4. On the above pleadings, the trial Court would frame six issues which are :

1. Did the defendant deliver the suit consignment against the document of title, viz., Railway Receipt to the owner of the consignment?

2. Is the defendant absolved from liability under S. 78-B of the Indian Railways Act?

3. What is the value of the suit consignment non-relivered? 4. Was there compliance of provisions of S. 78-B of the Indian Railways Act?

5. Was there valid suit notice under S. 80, CPC duly served on the defendant?

6. To what relief is the plaintiff entitled?

5. Having framed the above issues, the lower Court would conduct a trial in which three witnesses have been examined on the part of the plaintiffs as P.Ws. 1 to 3 and the defendants would examine two witnesses for oral evidence as D.Ws. 1 and 2. So far as the documentary evidence is concerned, 41 documents would be marked as Ex. A1 to Ex. A. 41 on the side of the pliantiffs and 11 documents would be marked on the part of the defendants as Ex. B1 to Ex. B11. The Court below, in appreciation of these evidence placed on record in the context of the pleadings, would ultimately decree the suit as prayed for with costs. It is only challenging the decree as passed by the lower Court, the defendants have come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal.

6. During arguments, the learned counsel appearing on behalf of the appellants/Railways would submit that textile goods wer