Failure to declare the value and contents of an article falling under Schedule 2, Railways Act, as required under Section 75, renders a suit for compensation non-tenable.

Puranik, J—This revision arises out of a suit instituted by the plaintiff-non-applicant against the defendant-applicant for recovery of Rupees 512-7-3 on the ground that the defendant failed to deliver to the plaintiff a radio set which he ordered from Calcutta and which was consigned to the defendant-railway for carriage and for being delivered to the plaintiff at Raipur.

2. The defendant admitted that a radio set was booked from Calcutta. His main defence was that the parcel in suit being one containing an article mentioned in Schedule 2, Railways Act, and its value being Rs. 324 as stated by the plaintiff it was obligatory on the consignor to have caused its price declared at the time of tendering the parcel for carriage under Section 75, Railways Act, and as this condition precedent was not fulfilled the plaintiff who claims to be the owner of the radio set is not entitled to claim any relief by way of compensation for non-delivery.

3. Under Section 75, Railways Act, regarding loss of articles of special value exceeding Rs. 100 and falling under Schedule 2 the railway administration is not liable unless the consignor has declared the value and contents of the parcel and unless the same is insured. The railway administration, however, in its correspondence with the plaintiff and in its arguments before the Court below claimed that a radio set fell under Schedule 2, Clause (r), viz., 'musical and scientific instrument'.

4. The plaintiff asserted that it did not fall under that category and, therefore, it was not necessary for him to have declared its value and contents and get the parcel insured. The Court below came to the conclusion that it was not a scientific instrument and, therefore, did not fall under Schedule 2, Clause (r). It, therefore, decreed the plaintiff's claim for Rs. 335-15-3 and costs, that being the original price of that set together with certain incidental costs.

5. The learned Counsel for the railway who appeared in revision, however, has brought to my notice that the statement made on behalf of the railway in the Court below that it fell under Schedule 2, Clause (r), is not correct. His contention is that in the year 1942 when this parcel was delivered to the railway administration under the Goods Tariff that was then, prevalent a radio (wireless apparatus) is included specifically as an article under Schedule 2, which mentions the excepted articles which cannot be consigned to the railway administration without a declaration of value and contents and insurance. He referred me to Rule 34 at pp. 7 and 8. This Tariff is in force from 1-1-1942.

6. It was argued that under Section 75, Railways Act, the railway administration could not be held responsible inasmuch as the plaintiff or his agent in Calcutta admittedly failed to declare its value and contents and did not insure as required by the rule. As the Goods Tarrif did not indicate under what authority it was prepared I adjourned the case and called upon the counsel for the defendant-applicant to satisfy me that this was done under authority. He now refers me to Notification No. 801 published in the Gazette of India, 25-3-1905, under which the Indian Railway Board was authorized to make changes in Schedule 2 and to add such other articles as it considered necessary to that schedule. He then referred me to Gazette of India, 21-8-1937, Notification No. 4388-T whereby the Railway Board added 'Radio (wireless apparatus)' to the list of excepted articles under Schedule 2.

7. I am satisfied that the rule contained in the Goods Tariff is a rule which has been made under authority and has the force of law. A radio set is thus an article regarding which a declaration under Section 75, Railways Act, was necessary. It was not disputed that that kind of declaration was not made though the value of the article was above Rs. 100. In the absence of that declaration the plaintiff is not entitled to maintain the suit for compensation for loss of the article during tra