Siddaya Mudaliar vs M.N. Muthayanna Chettiar and Another

Krishnaswami Nayudu, J.—The short point in this appeal is Whether the plaintiff appellant, who despatched the goods by rail to the

defendants and which goods had been lost in transit, is entitled to recover the value thereof from the defendants. Reliance is placed on Section 39

Clause (1) of the Sale of Goods Act, that delivery of the goods to a carrier whether named by the buyer or not, for the purpose of transmission to

the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. But under

Clause 2:--

Unless otherwise authorised by the buyer, the seller shall make such contract with the carrier or wharfinger on behalf of the buyer as may be

reasonable having regard to the nature or the goods and the other circumstances of the case. If the seller omits so to do, and the goods are lost or

damaged in the course or transit or whilst in the custody of the wharfinger, the buyer may decline to treat the delivery to the carrier or wharfinger,

as a delivery to himself, or may hold the seller responsible in damages.

Here the ordinary precaution which the plaintiff should take viz, to declare to the railway about the goods in question which came under the

excepted articles enumerated in the IInd schedule to the Indian Railways Act, IX of 1890, and the value of which exceeded Rs. 300, has not been

taken with the result that the plaintiff is not entitled to any damages in respect of loss of such goods from the railway company; The liability of the

buyer is therefore exempted by reason of the plaintiff not having taken the reasonable care to declare the goods as per the requirements of the

Indian Railways Act, which resulted in the plaintiff not realising the value of the goods from the railway company.

In these circumstances it is not open to the plaintiff to claim the value of the goods which did not reach the defendants and which the defendants

had not the benefit of. The result is, this second appeal falls and is dismissed. But there will be no order as to costs in this second appeal. No leave.