Andhra HC (Pre-Telangana)
The Union Of India And Anr. vs Sri Rama Silk Factory And Ors. on 7 September, 1979
Equivalent citations: AIR 1980 ANDHRA PRADESH 47
JUDGMENT
1. The firm of sree Rama silk Factory delivered a parcel way bill No. F. 491916 of silks to Railways and declared the worth of parcel to be Rupees 900/-. The firm of sree Leela Mahalakshmi Silk Factory delivered a parcel of Silks to Railways under way bill No. F. 491917 and declared the worth of parcel to be Rs. 900/-. The Firm of Boppe Adeyya sons &co. Delivered a parcel of silks to Railway under way bill no. F. 491918 and declared the worth of parcel to be Rs. 1,500/-. The three parcel were delivered at samalkot Railway station on July 15, 1968. The parcels booked by the three Firms were to be delivered to the Consignors at Siligiri Railway station where they reached on Sept. 22, 1968 and on to the consignees but to imposters who presented forget way bills. There upon the consignor firms in a common notice under section 80 of the code of civil procedure on June 23, 1969 claimed for compensation for loss of goods and laid three suits on July 14, 1971 and in that the firms claimed; The value of silks m F. 491916 to be Rs. 10, 108- 47 in F. 491818 to be Rs. 7, 291-65 ps; The Railways inter alia in their written statement disputed the valuation and liability to the amounts claimed. The learned subordinate Judge at Kakinada decreed the suits on March 15, 1975. Hence the three appeals by the Railways.
2. The fact that the firms were not delivered the parcels at Siligiri Railway station is not disputed. The common question raised in the appeals is: What is the amount payable to the consignors? The Railways contend that under sec. 77-B of the Indian Railways Act IX of 1890 ( the Act) on the facts of the case they are liable in law for only such amounts which the consignors had represented at booking Station (Samalkot Railway station and not more. The determination of the issue thus raised requires consideration of some provisions in chapter VII of the Act with the heading "Responsibility of the Railway Administration as carriers". The second schedule was appended to the Act XXXIX of 1961 and section 77-B was substituted.
2-A. When the three parcels were delivered to the Railways as Samalkot, pursuant to the provision in section 77-B of the Act, the consignor declared their value as the parcel were more in value than Rs. 500/-. This declaration was required to be made for collection of tariff for the Railways as carriers are to the contents and to identify whether parcels contained articles particularised in the second schedule both, for collection of tariff and carrying the scheduled goods involved "increased risk" if parcels are lost, destroyed damaged or deteriorated. Therefore the Railways contended the firms are required to declare the value at booking station when parcel delivered to Railways. In other words the Railways argue the consignors of goods if for purpose of tariff payment the value declared by them was less at the booking of the goods. When goods are; lost, destroyed, damaged, deteriorated or misdelivered, the compensation payable to the consignor, it is argued, is the same as declared value of the parcels when declaration under clause (1) of section 77-b of the Act is made. what is argued in opposition against the Railways is: 'In the event of misdelivery of parcels the consignors are not bound by the declaration of valuation made by them and notwithstanding sec. 77-Bthe consignors can claim for the "real value" of the goods.'
3. There is very little direct authority on the point even in case lodged after the Amendment Act XXXIX of 1961. There were some observations made in cases arising prior to the amendment but it is seen they are of not much assistance. The question came to be considered in Lakshmi Bangle stores v. Union of India, (1975) 1 An WR 1 by a Division Bench of this court. The goods in that case were bangles specified in second schedule and were found damaged in transhipment. On the facts of the case the suit was held barred and the parcels were found: "admittedly the value of each of the packages was less than Rs. 500/-" and there fore it was held "section77-B was not attracted". However, the case of Chunilal v. Governor- General - in- council, AIR 1949 Mad 754 was considered by the Division Bench and was not followed and what was observed by Mack J. is shown in the following passage:
"There appears to have been no legal obligation on the plaintiff to declare in Exhibit B-1 (forwarding slip) the value of the goods in the box, nor will such valuation in any way bind the Railway company who are only liable in any event to pay for the actual value of the contents of the box which may well be considerably less than the amount declared. An interesting point for the determination is if plaintiff, though under no legal obligation to value the contents of the box, does so of his own accord, the Railway company is legally liable to pay him compensation in excess of his own valuation at the time of consignment..................I am of the opinion that where a consignor takes it upon him self specifically to value a box and its contents consigned by rail, it is not open to him to claim from the Railway company anything in excess of that valuation and to content that the box contained more valuable things, an averment, which the Railway company may have great difficulty in refuting."
The Division Bench in (1975) 1 An WR 1 observed:
"If it was his view that the consignor was estopped from claiming more than the value mentioned in the declaration we do not see how there can be any estopped unless the railway administration had done something in furtherance of the representation contained in the declaration".
4. The observations were not necessary for the purpose of decision of the case (1) for the parcel were held to be less than Rs. 500/- and in that sense the observations were obiter.
5. In the instant case silk is an article specified against item (1) in the second schedule and the facts in the cases show the consignors had made declaration as to valuation and based on that valuation tariff was collected by the Railways. Therefore the observations of Mack J., are apposite. The principles of estoppel in my view was correctly elucidated in that case. The case no doubt arose prior to the amendment in Act XXXIX of 1961 but as to the enunciation of the principle there is no error and I follow the same.
6. The view point which is forcefully pressed for acceptance against the Railways decided in Union of India v. Jetmall sukanraj. . Ismail J. of Madras High court considered the expressions ' the loss, destruction, damage and deterioration' not to include a misdelivery or non-delivery and observed:-
"................ non- delivery has been made an independent cause of action by the Amendment Act, 39 of 1961, and non-delivery may be consequence of loss of destruction or it may be a consequence of other cause,. Therefore, section 77-B of the Act, even as it stands is workable and can be given effect to fully and hence there is no compelling necessity to supply the deficiency or omission, even assuming that the omission of the expression "non- delivery" in that section is unintentional."
Whether there is any gap (omission or deficiency)in section 77-B of the Act can not be considered without having regard to the legal consequences of misdelivery. As a question in interpretation, the methods of interpretation in recent past in the British Jurisprudence have experienced far- reaching changes. There is in evidence are- thinking bringing about far- reaching changes as is evident from the following cases and facts.
7. The European convention on "the contract for the International carriage of goods" by road was agreed to by the United Kingdom and several other European countries on May 19, 1956. What came to be agreed at that convention was appended as part of statue under section 1 of the carriage of goods by Road Act, 1965, section 1 of the Act proclaimed the agreement entered in to by the High court in English had " the force of law" though the convention proclaimed the French and English versions of the agreement were authentic. Lord Denning in James Buchanan &Co. v. Babco (1977) 1 All ER 518) found a 'gap' existed in English Text and with that gap in the text it was not possible to interpret the text therefore had recourse to the continental method of interpretation of statute known as "schematic and teleological" interpretation. Roskil and Lowton L. JJ. in the same case found there was a 'gap' but expanded the scope and meaning of the words of the English text by looking at the French text of the convention notwithstanding the fact that the French text was not given the status of force of law under section 1 of the carriage of goods by Road Act, 1965.
On appeal to the House of Lords (James Buchanan v. Babco (1977) 3 All ER 1048 ) Lord Willberforce referred to the general criticism leveled against the principles adopted in interpretation in common wealth countries (what is loosely termed as British jurisprudence) as "narrow, technical and literal" whereas in the "schematic and teleological " interpretation it was generally said the method adopted was " broad , generous and sensible" and ultimately said there is no universal wisdom available across the channel on which 'insular methods' can be drawn, and did not approve/ adopt the European methods of interpretation. Viscount Dilhorne found no gap in the English text and does not feel the necessity to refer to the French text. Lord salmon found "gap" existed nut disapproved the adoption of the teleological method of interpretation for in adopting the European method courts 'graft a provision to a statute" and observed such a practice is entirely foreign to British jurisprudence. However if in a statue based on an international convention expressed in two different languages, so clarified the Law Lord and if there is doubt as to meaning in one language Lord salmon observed it is permissible to seek help form the way in which it was expressed by Roskill and Lawton L.JJ. in the case in having considered the French version was no better than the English version. Lord Edmund Davies found no latent ambiguity and no gap which needed to be "filled" in the English text of the convention. As regards the propriety of adverting to the French text of to convention. As regards the propriety of adverting to the French test of 1956 convention was ambiguous and: 'But where there is no 'gap' or ambiguity in the English text (as I hold the Position to be in the present case.)., The literal approach is preferable to the schematic and teleological approach". Lord Fraser of Tullybelton agreed with Lord Edmund Davies in the reasoning and the conclusion.
It was seen that on the same question there is a French case (Cie L' Helvetia v. Cie Seine et Rhome), (1973) (Bulletin does Transports 195) decided by the court of the Appeal in Paris on 30th march 1973 which seems to be similar to the present in which the interpretation of Article 23 contended for by the present respondents was accepted. Far from there being any uniform corpus of law relating to the convention Megar L. J. pointed out in Ulster swift Ltd. v. Taunton Meat Haulage Ltd. disharmony reigns, twelve different interpretations were product by the courts of different member countries concerning the supposed meaning of various articles, in the convention. On the merits of the case also there was short cleavage of opinion of three to two short cleavage of opinion of three to two (3 : 2) and as to the methods of interpretation to sun up: Lord viscount Dilhorne did not express any opinion. Lord Wilber force considered the question and did not express finally for he was dismissing the appeal. Lord Salmon qualified his opinion to say where the convention represents International agreements, schematic and teleological method is not out of place. Lord Edmund- Davies and Lord Fraster of Tullybelton both have said "the literal approach is preferable to the schematic and teleological approach is preferable to the schematic and teleological approach". This analysis I have presented to show the principles are again melting and happily the European influence is brought to bear on the interpretation of statues and I cannot further continue the discussion without getting away from the appeals in hand but it is true to say "literal interpretation" was holding the field for too long a period and it is better to go to principles in interpretation rather than stick to the words and phrases.
8. Where there was omission of the expression of 'non-delivery' in section 77-B of the Act: whether the omission is material, is relevant in this regard. What are the consequences follow when there is misdelivery of goods by the Railways, what consequences follow when carrier is unable to deliver the goods, what difference in law does it make where goods are lost, destroyed, damage or the goods are not delivered due to misdelivery! In all the contingencies goods are not received by the lawful owners and give rise to claims for compensation against the carrier. The question in the case where goods are damaged or deteriorated is what is the compensation . If goods are lost and are not delivered in what amount the owner can be reimbursed and these questions do arise in chapter XI of the Railways Act. The Freight Structure Enquiry committee of Railways considered in their report these aspects on April 14, 1957 as to the liability of Railways from out of the existing provision in the Act as bailee and recommended:-
"In the Act, as originally framed, a railway administration was permitted to limit its responsibility as bailee under special contract with the consignors special contract in accordance with section 72 (2) had to be in writing and in a form approved by the central Government. The special contracts, which were in force until 1950, were known as Risk Notes, and their main effect was to make the consignor assume a greater portion of the risk in the carriage of consignments. Under such contracts, the responsibility of the railway was extremely limited though not completely eliminated. For instance, by signing Risk Note "B" in consideration for the special reduced of owner's risk rated charged, the consignors undertook to hold the railway administration...............
"Harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever expect for the loss of a complete consignment or of one or more complete packages forming part of a consignment due either to the willful neglect of the railway administration or to theft by or to the willful neglect of its servants provided the term willful neglect be not held to include fire, robbery from a running train or any other unforeseen event or accident."
Thus, when risk Note 'B' was executed the railways were, for all practical purposes, absolved of all responsibilities. Any apparent protection given to the trader was illusory, because the onus of proving willful neglect was on him, while the explanation of the loss of injury was within the exclusive knowledge of the railway".
9. The Railways were ultimately recommended as carriers of animals and goods should accept the responsibilities of a common carrier. The Government of India accepted the recommendation and in the statement of object and reasons of Act XXXIX of 1961 expressed in the following manner;
"(b) that parcel or packages containing articles of special value be carried at Railway risk without payments of any additional charge when the value of such articles in a parcel; or a package does not exceed Rs. 500/- instead of Rs. 300/- as at present."
10. The parliament thus converted the liability of Railways under section 77-B of the Act as that of a carrier under Amendment Act XXXIX of 1061:
The liability of carrier (curiously even after more than a quarter of a century) in India is the same as in United kingdom notwithstanding the provisions in sections 151 and 152 of the Indian contract Act IX of 1872. It is nor necessary to digress on the law applicable to carriers under Indian contract Act for under the Railways Act after the amendment Act XXXIX of 1961, the liability is that of a carriers is not disputed. A carrier In United kingdom and his liability is stated in Halsbury's Laws of England (4th edition, volume 5) as under: "if the consignor declares that the goods are of a certain value or if he acts in such a way as to represent them to be of a certain value, in order to secure a lower rate of carriage, he cannot allege subsequently that the goods were in fact of higher value." (Tyly. v. Morrice (1699) carth 485: Riley v. Horne (1828) 5 Bing 217 at 222: Bradly v. waterhouse (1828) 3 C& P 318; M' cance v. London and north western Rly. co. (1864) 3 H & C 343. The case in M' cance v. London and north western Rly, co., (1864) 3 H & C 343: 159 ER 563 was decided on June 20, 1864. In that case, the plaintiff delivered to the defendants horses to be carried and a declaration was signed that each horse did not exceed the value of ten shillings and in the course of journey horses were injured. In an action against the Railway company it was contended the horses were worth more than forty shillings per horse. The Exchequer chamber Judge held the consignor was not competent to deny the truth of the statement and prove that the real value of the horses exceeded ten shillings and the decision was confirmed on appeal in the Exchequer chamber by Williams J. in G. N. Ry. Co. v. L. E. P. Transport & Depository Ltd. (1922) 2 KB 742 at P. 771 some of the old cases were referred and it was observed by Lord Atkin J. "A common carrier who gives no notice limiting his responsibility, is an insurer; but if he gives notice that he will contract only to a limited extent, and with respect to articles of a given value, he ceases to be an insurer beyond that, though in all other respects he remains a common carrier."
11. To sum up: The consignors at Samalkot declared the valuation of the goods and paid tariff under section 77-B of the Act. The consignors in view of the declaration cannot mulct the Railways with 'real value' of the goods having regard to the declaration made even if the silks in the parcel were worth more than the declared value. In the result the suit of Sree Rama Silk Factory (O. S. No. 168 of 1971) is decreed for Rs. 900/-. The suit of Sree Leela Mahalakshmi Silk Factory ( O. S. No. 162 of 1971 ) is decreed for Rs. 900/-. The suit of Boppe Adeyya sons & Co. (O. S. No. 15 of 1971) is decreed for Rs. 1.500/-. The decretal amounts in each case are to be paid by Railways carrying interest at six per cent per annum from July 14, 1971 (the date of suits) till realisation. The appeals are allowed as indicated. No costs in the appeals.
12. Appeals allowed.