Patna High Court
Bengal And North-Western Railway ... vs Tupan Dass on 10 March, 1926
Equivalent citations: 96IND. CAS.605, AIR 1926 PATNA 384
JUDGMENT Ross, J.
1. This appeal must be allowed. The plaintiff-respondent sent a parcel for transmission from Hyderabad, Sindh to Katihar on the Railway of the defendant Company. The parcel arrived at Katihar but when it was opened it was found that some of the contents had been abstracted. These, were articles of silk and other things falling within the Second Schedule to the Indian Railways Act. The present action was brought for the recovery of the value of these articles. The defence was that the Company was protected by Section 75 of the Indian Railways Act inasmuch as the parcel -sent by the plaintiff contained articles mentioned in the Second Schedule but no declaration of their value was made The finding of the Munsif was that the articles' in question were -abstracted while the parcel was in the custody, of the defendant Company s servants. A decree has been passed in favour of the plaintiff by both the Courts below and the defendant Company has appealed.
2. The learned Advocate for the respondent contends that the case does not fall within the terms of Section 75, because there has been neither loss, destruction nor deterioration' of the parcel; and, secondly, that inasmuch as the goods were lost by theft of the Company's servants, they are not entitled to the protection of this section. Now "deterioration" is not a word of art and it must be taken in its ordinary sense. In the Oxford Dictionary one of the meanings given to the word "deteriorate" is "to become lower or impaired in quality or value", The parcel was impaired in value by the" abstraction of these articles and consequently there was deterioration of the parcel I think, therefore, that the case falls within the language of Section 75. As to the argument that a 75 does not protect the Company because the articles were abstracted by the servants of the Company, the learned Advocate was compelled to admit that he had no Indian authority for this proposition. He relied upon certain decisions of the English. Courts, but these proceeded on the express provision of Section 8 of 11 Geo. IV and 1 Will. IV, Chap. 68 (Carriers' Act, 1830), where a proviso is enacted exempting from the liability for loss of or injury to the articles therein referred to imposed by the first section of that Act. The proviso is that Nothing in this Act shall be deemed to protect any mail contractor, stage coach proprietor, or other common carrier for hire from liability to answer for loss or injury to any goods or articles whatsoever arising from, the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their employ, etc.
3. There is no such proviso in the Indian Act and, therefore, the English decisions have no application. It was also pointed out by the learned Advocate for the appellant Company that there is no evidence that the theft was committed by any of the Company's servants and this argument was not met by the learned Advocate for the respondent.
4. In my opinion, therefore, this case is covered by Section 75 of the Indian Railways Act and the appeal must be decreed with costs and the suit dismissed with costs throughout. The cross-objection is dismissed.
Kulwant Sahay, J.
5. I agree.