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Judgment
Krishnaswami Nayudu, J.—This appeal arises in a suit against the railway administration for recovering the cost price of 85 baskets of glass bangles consigned from Unao Railway Station to Vizianagaram. The consignment was not received at the place of destination. At a station in the C.I.P. Railway, Bandarpur, there was a fire and these baskets which were loaded in a wagon, which caught fire, got damaged. 65 baskets were completely destroyed and though 20 baskets were not damaged and could have been delivered, they were not delivered to the consignee. The trial Court passed a decree only in respect of the value of 20 baskets which were lost and which were not sent to the plaintiff, but held that the Railway administration was not liable in respect of the loss by fire of the remaining 65 baskets. The responsibility of a railway administration for loss, destruction or deterioration of goods delivered for being carried by railway is contained in S.72 of the Indian Railways Act and it is stated that such responsibility was subject to the other provisions of the Act being that of a bailee under Ss.151, 152 and 161 of the Indian Contract Act, IX of 1872. Under S.152 of the Indian Contract Act, it is provided that in the absence of any special contract, the bailee is not responsible for the loss, destruction or deterioration of the things bailed if he has taken the amount of care it required and stipulated in S.151. S.151 provided that in all cases of bailments, the bailee is bound to take as much care of goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. The view taken by the learned District Munsif was that such care as is expected by a bailee was taken by the railway administration and as such, no liability could be imposed on them. In appeal, however, the learned District Judge relying on the evidence of D.W.7 and the report which he made, Ex.D.19 took a different view. From the evidence in the case on behalf of the defence it is found that the wagon in which the goods were loaded was sixth from the engine that there were no inflammable goods in the wagon, that fire could not have been caused by hot axle and that the cause of fire was not known. But from Ex.D.19, a report made by D.W.7, Commercial Inspector of the C.I.P. railway in the course of his enquiry as to the cause of the fire and the resultant loss, stated that from the evidence of the Station Master of Bandarpur, who is D.W.10, it will be seen that after the fire was completely extinguished it was seen that the roof of the wagon had several small holes and one big hole and a gap of about 4" between the roofing sheets towards the end. And this report is stated to have been the result of an enquiry made by D.W.7, and the Traffic Inspector. Since these holes and the gap in the roofing were found in that wagon and it not having been shown by the railway administration that these holes and gaps did not exist in the wagon itself before the fire, it has to be presumed that the roofing of the wagon had these holes and the gap referred in the report, Ex.D.19 and as the learned District Judge observed that if they were there in existence before the fire, particularly the gap of 4" it cannot be said that the railway had taken such prudent care of the goods entrusted as was required of a bailee under S.151 of the Indian Contract Act. There was every likelihood of the fire from the sparks of the engine getting into the wagon through those holes and gaps and the result of the fire might possibly be due to that source. That possibility not being excluded, the view taken by the learned District Judge that the railway administration could not have bestowed that care as was required of a bailee is, in my view, correct and the finding of the learned Judge need not therefore be disturbed.
But it is argued by learned Counsel for the appellants that this aspect of the case was not put to either D.W.7 or D.W.10 in cross-examination. It is true that no questions are elicited from either of the witnesses as to the state of the wagons as appearing from the report, Ex. D-19, but it is not for the plaintiff to elicit those questions. It is for the defence to explain through the witnesses D.Ws.7 and 10 and their other railway servants as to the existence or otherwise of the holes and gaps on the roof of the engine, whether such holes were the result of the fire, or they could have been there prior to the fire. There was no duty cast on the plaintiff to elicit this information from those witnesses, as the report, Ex.D.19 was entirely in their favour.
Another argument urged is as to the plaintiff''s ineligibility to claim any damages by reason of non-compliance of the requirements of S.75 of the Indian Railways Act. S.75 (1) is in the following terms:
When any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds three hundred rupees, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless.
On the dale of the fire the limit as to value of the articles in S.75 was not Rs.300 but only Rs.100. Rs. 300 has been introduced instead of Rs. 100 by the Indian Railways (Amendment) Act VI of 1947. The contention is that these goods which are glass bangles were one of those articles mentioned in the second schedule and no declaration in writing was made by the consignee or consignor stating its value and contents, as it is stated that value of the entire consignment is more than Rs. 100 as the total value of the 85 baskets is put at Rs. 2900 by the plaintiff.
An attempt was made on behalf of the plaintiff to show that glass bangles do not come within the category of articles specified in the second schedule. But it will be seen that Cl. (k) of the second schedule refers to "art pottery and all articles made of glass, china or marble." Though it is suggested that bangles are not made of glass but made of material called bangle stone, it may noted that even glass may be made of practically stone and chemicals. The distinction that is sought to be drawn by the plaintiff between glass bangles and glass and the contention that glass bangles could not be made of glass does not appeal to me and I have no hesitation in holding that it is one of the articles that comes with in the description of the articles specified in Cl. (k) to the second schedule.
But the question still remains to be considered as to whether for the application of S.75 of the Act the value of each package or parcel of each basket, or the value of the entire consignment has to be taken into consideration. The reference to the value of the articles in S.75 is only in regard to a parcel or package. The word " consignment " does not anywhere appear in S.75. A package or a parcel is an entity by itself. The goods may be wrapped up in a single package or they may be kept loose. Then each article would be a different parcel. In the Law Lexicon by P. Ramanatha Iyer it is said " parcel " signifies a part of the whole taken separately and has for one of its meanings "a small bundle.'''' In its primary signification "a parcel is a number of quantity of things put together; a bundle or package; a quantity pressed or packed together; a small bundle." There is no dispute about this fact, namely, that each basket was separately packed and each was a covered package and there were 85 such packages which were consigned. The purpose behind this provision is apparently that the railway administration must be made known of the value of the contents of a package in order to ascertain about their liability in case of a loss. There may be several packages sent in a single consignment. One of them may be more valuable than the others. But it is the separate value of the packages as required to be declared and not the value of the entire consignment. Apart from the fact that the word " consignment " is not used and that a declaration is required to be made in respect of the value of each parcel or package, even the reason behind the rule supports the view taken by the learned District Judge that what was intended in S.75 is not the consignment as a whole, but the different packages or the items which form the consignment. In Firm Mahesh Glass Works Vs. Governor General in Council, , an identical question arising out of the interpretation of S. 75 of the Indian Railways Act was under consideration and there also the consignment consisted of several garlands of glass bangles and it was held that each garland of glass bangles though not covered or packed constituted a parcel or package. It was held that,
Where glass bangles are made into garlands, by passing a string through a number of bangles and tying its two ends together, the garlands come within the meaning of parcel or package. Each garland is a parcel or package; it is not that all the garlands together form one parcel or package. Therefore, each garland must be of the value of more than Rs. 100 in order to be governed by the provisions of S.75 as it stood before amendment.
The learned Judges referred to the decision in Sarju Singh and Another Vs. Bhagwat Prasad, , and the observations of Rowland, J., who said that,
the section strictly interpreted, contemplates a declaration regarding the contents and their value of each package.
In the English case Herschell and Meyer v. G.E. Railway Co., (1906) 96 L.T. 147, which was also referred to in that decision where some bales of skin were consigned, a declaration of their value was made but only for customs purposes. Kennedy. J., observed at page 154 with reference to "whether it was a sufficient declaration under S.1 of the Carriers Act that it would never be within the meaning of the section to give a lump description of two or more parcels any one of which might contain the whole value, and certainly any one which might be under the value of the 10 which must be the value to bring that section into play. I think it must be a declaration with regard to the contents of the particular parcel according to the words of the Act." There can therefore be no doubt that the value of each particular package or parcel, though they form part of a whole consignment, is what is required to be declared under S.75 of the Act and such a declaration becomes necessary only when the value of such package exceeds Rs. 100. In this case each package does not exceed the value of Rs. 100. It is not therefore open to the defendants to rely on S.75 to disentitle the plaintiff to claim the cost of the consignment and the damages.
Learned Counsel also raised the contention that the third defendant Bengal Nagpur Railway is not liable in any event. It was not raised or argued in any of the lower Courts and I do not see any purpose is served by allowing the appellant to argue this question for the first time in second appeal. In the result the second appeal fails and is dismissed with costs, but with this modification. There is apparently an omission in the decree of the lower appellate Court as regards interest, which was claimed by the plaintiff and granted by it. This omission will be supplied by modifying the decree of that Court by adding a clause "with interest at six per cent per annum from the date of plaint till date of payment." No leave.