1950 Supreme(All) 46

IN THE HIGH COURT OF ALLAHABAD
Mushtaq Ahmad and Desai, JJ.
FIRM MAHESH GLASS WORKS - Appellant
Versus
GOVERNOR GENERAL IN COUNCIL - Respondents
Second Appeal 1466 Of 1945
Decided On : 02/24/1950

A railway administration is not entitled to the protection of Section 75 of the Railways Act, 1890, if the excepted goods are not contained in any parcel or package delivered to it and the value of the goods in the parcel or package does not exceed one hundred rupees.

Headnote:

RAILWAYS ACT, 1890 - SECTION 75 - EXCEPTION - GOODS NOT PACKED IN PARCELS OR PACKAGES - RAILWAY ADMINISTRATION NOT ENTITLED TO PROTECTION - DEVIATION FROM BOOKED ROUTE - RAILWAY ADMINISTRATION LIABLE AS BAILEES UNDER SECTION 72 - NEGLIGENCE IN DEALING WITH CONSIGNMENT - LIABILITY FOR LOSS AND DAMAGE.

Fact of the Case:

The plaintiff booked a consignment of glass bangles from Firozabad to Hajipur on the East Indian and Oudh and Tirhut Railways. The consignment was booked under risk note Y, which exempted the railway administrations from liability for loss, destruction or deterioration of the consignment from any cause whatever, before, during and after transit, over the said railway, or other railway lines. The bangles were not packed in anything; they were made into garlands by passing a string through a number of bangles and tying its two ends together. These garlands were packed into the wagon on floor padded with straw. The consignment was forwarded to Hajipur via FKD and CAA. There was also an endorsement on it "dearer route selected by sender." The wagon reached Kanpur on 6th September 1941. The railway authorities there, instead of sending it on to lucknow and Hajipur, unloaded it themselves and placed the goods in a broad-gauge wagon and despatched it to Mokameh where it arrived on 11th September. There another transhipment was done by the railway authorities and the goods were placed in a meter-gauge wagon on 22nd september and the wagon was dispatched to Hajipur where it reached on 26th September. No information of the transhipments done at Kanpur and Mokameh were given by the railway authorities to the plaintiff. When the appellant went to take delivery of the consignment at hajipur, it was found that many bangles were broken and many were stolen. The appellant took delivery of the consignment and after the necessary formalities instituted this suit against the railway administrations for damages.

Finding of the Court:

The Courts below found that the railway administrations were negligent and guilty of undue delay in delivering the consignment at Hajipur and were not justified in deviating from the route and that they were protected against the appellants claim by the provisions of section 75 and the risk-note Y.

Issues: 1. Whether the bangles were "contained in any parcel or package delivered" to the railway administrations and that the value of the bangles "in the parcel or package" exceeded one hundred rupees? 2. Whether the railway administrations were entitled to the protection of Section 75? 3. Whether the railway administrations were justified in deviating from the booked route? 4. Whether the railway administrations were liable as bailees under Section 72? 5. Whether the railway administrations were guilty of negligence in dealing with the consignment at Kanpur and Mokameh?

Ratio Decidendi: 1. The bangles were not wrapped up in, or covered with, anything. The value of the whole consignment was certainly more than Rs. 100, but it is not known of how many garlands it consisted, how many garlands were broken or stolen and what was the value of each of the garlands broken or stolen. The evidence is of the total quantity of the stolen bangles but not of the number of garlands in which those bangles were contained. As regards the breakage, all we know is the value of the broken bangles; we do not know in how many garlands they were contained and what was the value of those garlands. For the applicability of Section 75, it was necessary for the railway administrations to prove that the bangles were "contained in any parcel or package delivered" to them and that the value of the bangles "in the parcel or package" exceeded one hundred rupees. 2. Each garland was a parcel or package; it is not that all the garlands together formed one parcel or package. The railway administrations have failed to prove that each garland was worth more than Rs. 100. The plaintiff was bound to declare the nature and value of each garland only if its value was more than one hundred rupees. It was not bound to do so merely because the value of all the garlands taken together was worth more than one hundred rupees. The words "parcel or package" do not include plural; Ghulam Albas v. Secretary of State, A. I. R (14) 1927 Nag. 328 : (103 I. C. 766 ). It is the parcel or package that is lost or destroyed which should have contained excepted goods of the value of more than RS. 100. The legislature has avoided using the word "consignment;" so the excepted goods of the value of more than Rs. 100 must be contained not in the whole consignment but in the particular parcel or package chat is lost or destroyed. If several parcels or packages are lost or destroyed, each must have contained excepted goods worth more than Rs. 100. The words "parcel or package" could not have been used for only some parcels or packages included in a consignment. 3. The law that every person who undertakes to carry as a common carrier impliedly undertakes to proceed without deviation from the usual and ordinary course to the place of delivery, is well settled : See Davis v. Carrett, (1830) 6 Bing. 716 : (8 L. J. C. P. 253) ; Sevy. of State v. Kesho prasad, 1932 A. L. J. 788 : (AIR (19) 1932 ALL. 584), Kishan Lal v. B. B. and C. I. Rly, Co. 1933, A. L. J. 855: (A. I. R. (25) 1938 ALL. 561), Hales v. London N. W. Rly. Co. (1863) 8 L. T. (N. S.) 421 : (32 L. J. Q. B. 292), Nac Nameras Law of Carriers, Edn. 2 page 30. If a carrier deviates from the usual route and the goods are lost, even by inevitable accident, he is liable; for under such circumstances the loss is traced back throgh all the intermediate causes to the first departure from duty. 4. The ordinary liability of railway administration is that of a bailee, vide Section 72. It is open to a railway administration to reduce its liability by entering into a special contract with the consignor; the various risk notes which consignors execute are nothing but these special contracts. When owing to deviation, a risk note becomes unavailing, the statutory liability under section 72 is restored. The exemption from liability under Section 75 is a statutory exemption and not a exemption granted under any special contract such as that contained in a risk note. The provisions of Section 72 are subject to Section 75. It follows that even if there be a deviation from the usual or booked route the railway administration, would be entitled to claim the protection of Section 75. 5. The appellant had deliberately chosen the meter-gauge route from Kanpur to Hajipur because it did not involve any transhipment. It had packed the bangles into a wagon at Farrukhabad and that wagon should have gone direct to hajipur. But the railway administrations unloaded it at Kanpur and did another unloading at mokameh without informing the appellant that owing to the breaches, they were unable to send the meter-gauge wagon direct to Hajipur. The consignment was detained for many days at mukameh and also at Kanpur and the railway administrations could have informed the appellant of the proposed deviation and given it an opportunity of sending servants to Kanpur and mokameh to do the transhipment. The appellant might have even preferred waiting for a few days to the proposed deviation and might have informed the railway administrations to wait till the breaches were repaired.

Final Decision: The appeal is allowed and the appellants suit is decreed for Rs. 772-4-3 with proportionate costs of all Courts.