Patna High Court
Radha Kishan Nathani And Ors. vs Union Of India (Uoi) And Ors. on 18 January, 1957
Equivalent citations: AIR1957PAT231, 1957(5)BLJR183, AIR 1957 PATNA 231, ILR 36 PAT 408
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This appeal Involves the interpretation of Section 76(1) of the Indian Railways Act (IX of 1890). Section 75(1) has been amended twice; the first time in 1947, by the Indian Railways (Amendment) Act (VI of 1947), which came into force on the 21th March, 1947; and the second time in 1949 by the Indian Railways (Amendment) Act, (LVI of 1949), which was brought into force on the 1st day of February, 1950. We are concerned here with the unamended Section 75(1) of the Act, which was in force In 1940. Section 75(1), before its amendment in 1947 and 1949, was in these terms:
"75. (1) 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 one hundred rupees, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared or declared them at the time of the delivery of the parcel or package for carriage by railway, and if so required by the administration, paid or engaged to pay a percentage on the value so declared by way of compensation for increased risk."
The question is what is meant by the words "parcel or package" occurring in Sub-section (1) of Section 75 of the Act?
2. In order to understand the significance of this expression, and, its bearing on the facts of the present case, it is necessary to state a few facts briefly.
3. The plaintiffs, who are the appellants before this Court, brought this suit, out of which this appeal arises, for recovery of Rs. 2,205-6-0 inclusive of interest etc. as damages on account of non-delivery of one out of the three packages entrusted by plaintiff 2 to the custody of the Railway Guard of G. I. P. Railway at Victoria Terminus on the 8th December, 1946, to be carried to Muzaffarpur. Plaintiff 2 had five packages of clothes. He got them weighed, and obtained one luggage ticket for all of them, after paying the charges payable in respect thereof. Out of these five packages, he kept two with himself, and, entrusted the other three to the custody of the Guard in the parcel van.
When he reached Muzaffarpur, he found that one of the three packages entrusted to the Guard was missing. He, thereupon, took open delivery of the remaining two packages on the 9th January, 1947; and brought the present suit on the allegation that the missing package contained articles mentioned in Schedule 1 of the plaint, valued at Rs. 1,984, and, therefore, the plaintiffs, who were members of a joint Mitakshara Hindu family, were entitled to recover the amount with interest as damages on account of non-delivery of one of the three packages.
4. The defendants, the Railway Companies, contested the suit; and, their main defence, with which we are concerned, was that the lost luggage contained excepted articles specified in Schedule 2 of the Act, of the value of more than Rs. 100, and, as its contents, and their value, had not been declared at the time of entrusting the luggage to the Railway Administration, Section 75 (1) of the Act was a bar to the suit, and the defendants were protected thereunder from liability for the loss, and, as such, the plaintiffs were not entitled to get any damage at all.
5. Both the Courts below dismissed the plaintiffs' suit, accepting the defence that the Railway Administration was entitled to the protection afforded by Section 75 (1). of the Act. The Court of appeal below recorded the following finding on this question:
"......that the package that was not delivered to the plaintiffs did not contain any excepted articles, but that the other packages of the parcel did contain silk articles, and as all the packages were booked under one luggage ticket, so they are to be viewed as one parcel, and, therefore, the defendants are entitled to get the protection afforded to them by Section 75 of the Indian Railways Act."
6. The admitted facts, therefore, which emerge from the findings of the Courts below are: (1) that the five packages of clothes were booked under one luggage ticket, (2) that one of these five luggages, which was one of the three packages entrusted to the Railway Guard, was lost, (3) that the package which was lost did not contain any excepted article mentioned in the second schedule of the Act, (4) that -the other four packages which were not lost did contain some excepted goods mentioned in the second schedule of the Act, (5) that the value of the package which was lost was more than Rs. 100, and (6) that the contents and value of the lost package, or as a matter of fact of all the five, or the other four packages, either individually, or collectively, were not declared at the time of the delivery for carriage by railway as required by Section 75 (1) of the Act.
7. The question, therefore, which arises for consideration, is, whether the words "parcel or package" occurring in Section 75 (1) of the Act contemplate several packages or parcels booked under one luggage ticket, or, they mean each individual parcel or package, even though it is booked under one luggage ticket along with several other parcels or packages? In other words, the question for determination is, if several packages are booked under one luggage ticket, and some contain excepted goods mentioned in the second schedule of the Act, but others do not contain such excepted articles, and, the lost package does not contain any such excepted article, can the Railway Administration be exempted from liability for the lost luggage under Section 75 (1) of the Act, simply because the lost package or parcel, which did not contain any excepted article, was booked with the other packages or parcels which contained excepted articles, the value whereof was not declared as required by Section 75 (1) of the Act?
8. The crucial point for decision, therefore, is, whether for the application of Section 75 (1) of the Act the value of each parcel or package, or, the value of the entire consignment or luggage, consisting of the several parcels or packages, has to be taken into consideration?
9. Mr. Nandlal Untwalia, appearing for the appellants, has contended that the words "parcel or package" in Section 75 (I) of the Act mean each individual parcel or package, and, it does not include the plural. In support of his contention, he has relied on Gulam Abbas v. Secretary of State, AIR 1927 Nag 328 (A), Firm Mahesh Glass Works v. Governor-General-in-Council, AIR 1950 All 543 (B), Governor-General-in-Council for In, dia v. Sakalchand Batchutmal, (1954) 2 Mad LJ 677 (C), and Sorabji Dadabhai v. B. N. Rly Co. Ltd., ILR 15 Pat 394: (AIR 1936 Pat 393) (D).
10. Mr. P.K. Bose, however, has urged on behalf of the Railway Administration, that the word "parcel", or, "package" in Section 75 (1) of the Act must, under Section 13 (2) of the General Clauses Act, 1897, be taken to include the plural as well; and, therefore, his contention is that if several parcels or packages are booked under one luggage receipt, as contemplated by Section 74 of the Act, then the value of the entire consignment or luggage, consisting of the several packages or parcels, has to be declared collectively, and not individually under Section 75 (1) of the Act, and, therefore, if one of such packages booked under one consignment or luggage receipt under Section 74 does not contain any articles mentioned in the second schedule of the Act, but the other parcels or packages contain such scheduled articles, then also the Railway Administration will not be liable "for the loss of the parcel which contained non-scheduled articles only. In support of "his contention, he has relied on E. I. Rly. v. M.K. Boy, ILR 37 All 463: (AIR 1915 All 328) (E), Pundalik Udaji Ja-dhav v: Agents, S. M Rly Co. ILR 33 Bom 703 (F), G. I. P. Rly. Co. v. Sham Manohar, ILR 34 All 422 (G), and, Secretary of State v Gopalmal Purusotham Das, AIR 1932 Cai S: (ILB 58 Cal 989) (H).
11. It is true that Section 13 (2) of the General Clauses Act, 1897, (Act X of 1897), lays down that "words in the singular shall include the plural, and vice versa", but it is preceded by the words "unless there is anything repugnant in the subject or context", which are contained in Section 13. Therefore, to accept the argument of Mr. Bose that the word "parcel" or "package" in Section 75 (1) must be taken to include the plural as well would be to overlook the words "unless there is anything repugnant in the subject or context" contained in Section 13 of the General Clauses Act. If the intention of the Legislature had been, as suggested by Mr. Bose, the word "consignment" would undoubtedly have appeared in Section 75 (1) of the Act.
In my judgment, therefore, in the present case, on the clear language of Section 75 (1), it cannot be said that the word "parcel" or "package" in Section 75 (1) of the Act includes the plural also. This view is supported by the decision of the Nagpur High Court in Gulam Abbas v. Secretary of State (A), (supra), in which Findlay, J. C., held that the word "parcel" or "package'' in Section 75 (1) of the Act does not include the plural under Section 13(2) of the General Clauses Act, 1897. This case was followed by a Division Bench of the Allahabad High Court in Firm Mahesh Glass Works (B), (supra). This view taken by the Allahabad High Court was accepted also by the Madras High Court in Governor-General in Council for India (C), (supra), and, also recently by the Bombay, High.
Court in Firm Kaluram Sitaram v. Dominion of India, AIR 1954 Bom 50 (1), in both of which the contrary view taken in Kundan Lal Baru Mai v.
Secy. of State, AIR 1929 Lah 698 (J), was dissent ed from.
12. Section 75 (1) contemplates two objects: (1) the articles mentioned in the second schedule, and (2) the object which constitutes the container for the article. Therefore, unless there is a parcel or a package in which the article is contained, Section 75 (1) can have no application. The word "package" was construed by Lord Justice Goddard in Studebaker Distributors, Ltd. v. Charlton Steam Shipping Co., (1938) 1 KB 459 (K). The distinguished noble Lord said that: " 'package' must indicate something packed". Desai, J., of the Allahabad High Court, in Firm Mahesh Glass Works (B) (supra), observed, "A bare article like a car or a silver bar or a bangle cannot possibly be described as a parcel or package; in order that an article can be said to be 'contained' in a parcel or package, it is necessary that some other article is used with it in order to protect it, or cover it, or keep it in position or keep it together With another article or articles."
13. Even according to Webster's Dictionary, the meaning of "parcel" is: "a number or quantity of things wrapped up together, a bundle, package, packet"; and also: "a collection of articles, as of merchandise put up in lots for sale". The meaning of "package" is: "a bundle made up for transportation, a packet, a bale parcel"; and also: "that in which anything is packed, a box, case, barrel, crate, etc. in which goods are packed; a container."
14. In the Patna case, Sorabji Dadabhai (D) (supra), on a Letters Patent Appeal from the decision of Fazl All, J., as he then was, Wort, J., construed Section 75 (1) thus:
"In such a case the consignor or the customer must declare the value of parcel or package. It may very well be that the word 'parcel' is used in the technical sense of covering the whole consignment, but it is I think sufficiently clear from the section that the Railway Company could nave called upon the plaintiff to value each of these packages."
Rowland, J., who agreed with him, also stated that:
"It seems to me that the section, strictly interpreted, contemplates a declaration regarding the contents, and their value, of each package."
15. This Patna case was followed by the Madras High Court in the Governor-General in Council for India v. Sakalchand (C) (supra).
16. On a review of the above authorities, therefore, in my judgment, it is plain that the true meaning, and, correct interpretation, of the words "parcel or package" occurring in Section 75 (1) of the Act is that the word "parcel'' or "package" means the singular, and not the plural, and, it contemplates each individual "parcel" or "package", and not the entire "consignment" or "luggage", consisting of several parcels or packages. But in order to form a "parcel" or "package" there should not only be one article, but two articles; and one should play the role of a container to the other. In its primary significance, a "parcel" is a number of quantity of things put up together. A "package" or "parcel" is an entity by itself. The goods may be wrapped up in a single package or parcel, or they may be kept loose, in which case each article, with a container thereto, would be a different parcel or package.
In order, therefore, that Section 75 (1) should apply, there should be a declaration regarding the contents, and their value, both of each parcel or package separately, and not in respect of the entire "consignment" or "luggage", consisting of the different parcels or packages, booked under one luggage receipt under Section 74, collectively or in one lump. It is the parcel or package that is lost or destroyed which should have contained excepted goods of the value of more than Rs. 100, and in respect of which there should have been declaration of its contents and their value, as required by Section 75 (1) of the Act.
17. The principle underlying Section 75 (1) is this: The articles mentioned in the second schedule to the Act are valuable articles. If in respect of them the railway company is to act as a bailee, it should have knowledge that it is carrying valuable articles, and, the bailor has to give to the bailee an additional compensation for the risk that it takes in acting as a bailee. Unless the contents, and their value, are both declared, and unless the increased compensation is paid, if so required by the railway company, no responsibility rests upon the railway company if there is any loss or damage to the article carried by it.
18. The object of Section 75 (1) is to make people do what they ought to do in all cases where they send valuable parcels by a. carrier, that is, notify the contents of the parcel, and their value. In the case of valuable goods, declaratien of value is a matter of importance to the railway administration, as it would put the responsible officers of the railway on the guard, and, they would lake special care to guard the parcel, otherwise it may spell the ruin of the Railway Administration if its servants are negligent. Where, therefore, the plaintiff has omitted to make the requisite declaration, his suit for loss of parcel must fail, as he is hit by Section 75 (1) which is an absolute bar to his suit, and, he cannot escape the effect of the section on the ground that the loss happened by the negligence or connivance of railway servants. Such a declaration must relate to each parcel or package, it must relate to the particular parcel or package which is lost, and lump description or declaration of a consignment or luggage consisting of several parcels or packages will not suffice. After a declaration is made under Section 75 (1), its effect is that the carrier will become subject to the ordinary statutory liability, or the common law obligation, even though he may not demand any increased charge.
19. Section 72 of the Act makes the liability of a Railway Administration for the loss, destruction or deterioration of goods delivered to the Railway Administration to be carried by railway as that of a bailee under Sections 152 and 161 of the Indian Contract Act, "subject to the other provisions of this Act". Section 74 limits the liability of the Railway Administration as a. carrier of luggage by providing that the Railway Administration shall not be responsible for such loss, destruction or deterioration of any luggage belonging to or in charge of a passenger, unless a railway servant has booked and given a receipt therefor. It will thus be seen that the liability of the Railway Administration bailee is not absolute and. unqualified. One of the provisions to which Section 72 is further subject is contained in Section 75 of the Act.
That section is so worded as to absolve the Railway Company from liability if the articles mentioned in the second schedule of the Act be of the value of more than Rs. 100, and declared or insured, and a higher percentage of rate paid. The Railway Administration, therefore, as bailee, is liable for the loss of the parcel entrusted to it for carriage, provided it does not contain any article mentioned in Schedule II exceeding Rs. 100 in value. It will be noticed, therefore, that under the joint operation of Section 74 and Section 75 (1), the Railway Administration will not be liable for the loss of any. luggage, unless the same has been booked, and, a receipt given for the same as required by Section 74, and, that unbooked luggage, whether it contains articles referred to in Section 75 (1) or not, is carried solely at the owner's risk. When a luggage receipt has been obtained as required by Section 74 of the Act, the Railway Administration will be immune from liability for the loss of any package, containing the scheduled articles, booked under one luggage ticket only when the provisions of Section 75 (1) of the Act have not been complied with, otherwise the Railway Administration cannot seek protection of Section 75 (1), and, it will be liable for the loss of the package even though it is booked along with other articles which contained the scheduled articles and in respect of which the provisions of Section 75 (1) have not been complied with.
Under Section 75 (1), it is not the value of the consignment as a whole, but the separate value of the different packages or the items which form the consignment that should be declared, though they form part of a whole consignment. The further words of Section 75 (1) also make it clear that this is the only possible construction of Section 75 (1), because Section 75 (1) requires the consignor to declare the contents of the package or parcel in order to fix the Railway Administration with responsibility under Section 72 (1).
20. In the present case, several parcels or packages were booked under one luggage receipt as required by Section 74 of the Act. One such parcel or package was lost, and. admittedly, it did not contain any of the excepted articles mentioned in Section 75 (1) of the Act. The mere fact that the other parcels or packages booked under one and the same luggage receipt contained such excepted articles will not, in the least, affect the liability of the Railway Administration, simply because the excepted articles required, under Section 75 (1), the consignor to put value of such parcels or packages.
The contention that Section 75 (1) contemplates that the value of all the packages or parcels booked under one luggage receipt should be declared collectively, and not separately, is not borne out by the plain language of Section 75 (1) itself. As I have said, Section 75 (1) requires the value of the different parcels or packages which formed the luggage or consignment to be declared individually and separately, though all of them formed a whole consignment or one luggage. It is not the value of the consignment or the luggage containing the different packages or parcels as a whole, which is the basis of liability of the Railway Administration, and, as such, the Railway Administration cannot claim immunity from responsibility under Section 75 (1) of the Act for the loss of one package or parcel contained under one luggage ticket on the ground that because the other packages contained excepted articles referred to in Section 75 (1) of the Act, and, as their contents, and their value, had not been declared as required by Section 75 (1) of the Act, the lost luggage will also be considered to be a part of those parcels qr packages which contained excepted articles, simply because it was booked along with them.
In my judgment, therefore, on this construction of Section 75 (1) of the Act, the Railway Administration must be held liable for the loss of the package which admittedly did not contain any of the scheduled articles mentioned in Section 75 (1) of the Act.
21. In AIR 1915 All 328: (ILR 37 All 463) (E) relied upon by Mr. Bose, it was rightly held, if I may say so with respect, that the luggage of a passenger which is booked is a "package" within the meaning of Section 75 (1) of the Act. In this case, their Lordships dismissed the action of the plaintiff on the ground that the value of the steel trunk, which was lost, and, which contained some of the excepted articles mentioned in Section 75 (1) of the Act, came to over Rs. 300 no doubt, but the value was never declared as required by Section 75 (1) of the Act. In my opinion, therefore, this case can have no application to the present case, where the lost article admittedly did not contain any of the excepted articles.
22. In the Bombay case, ILR 33 Bora 703 (F) it was held that the protection given by Section 75 (1) of the Act extends, to the whole parcel in which silk goods such as are mentioned in Clause (1) of the 2nd Schedule are contained, whether the rest of the parcel is composed of articles mentioned in the second Schedule or not because the section, their Lordships said, draws a distinction between the articles mentioned in the Schedule and the parcel or package in which they are contained, and provides that the Railway Administration shall not be responsible for the loss destruction or deterioration of the parcel or package. In this case, the package was a mixed parcel, and, it contained cotton as well as silk goods which only are among the excepted articles mentioned in Section 75 (1) of the Act.
In such a case, where the package contained articles of special value along with others, Section 75 (1) would apply to the goods or special value packed in a parcel or package: and, in the case of the other goods packed in other parcels or packages although all booked under one luggage receipt. Section 72 would apply. Section 75 applies only to goods mentioned in the second schedule while with respect to the other goods contained in the package, the Railway Administration would be responsible for the loss under Section 72. Their Lordships have not given reasons why the protection given by Section 75 (1) of the Act sho ild extend to the whole parcel which is a mixed parcel and not to a single package or parcel.
I am, therefore, unable to accept the decision of their Lordships as laying down the correct interpretation of Section 75 (1) of the Act. For the same reasons. I am unable to accept as correct the decision of a single Judge of the Allahabad High Court in ILR 34 All 422 (G). in which Mr. Justice Banerji held that if goods, the insurance of which Is obligatory, are packed uninsured with other goods, the insurance of which is not obligatory, no compensation is obtainable for the loss of either class of goods, because, in view of Section 75 (1), no compensation could be allowed in respect of any of the articles contained in the lost packages inasmuch as a part of the goods contained in those packages were articles. which, under the second schedule of the Act. ought to have been insured.
The Calcutta case, AIR 1932 Cal 3 (H), is of no assistance to the respondents because the only point considered in that case was regarding the onus of proof in a suit for damages as price of goods lost, and in which it was held that the claimant must prove that the parcel was entrusted to the Railway Administration, and, that it did not contain articles excepted under schedule II and above Rs. 100 in value. The question which arises here did not arise there at all.
23. For the reasons I have attempted to give, I hold that the Union of India-respondent is liable for the loss of the luggage under Section 72 read with Section 74 of the Act.
24. The next question is; for what amount a decree should be passed in favour of the plaintiffs-appellants? On this question the parties are agreed that the finding of the first Court should be accepted, and, therefore, the plaintiffs should get a decree for Rs. 1,994-3-0 only, besides pendente lite interest.
25. In the result, the appeal is allowed, and, the judgments and decrees of the Courts below are set aside, and, the plaintiffs suit is decreed for Rs. 1,994-3-0 together with pendente lite interest and cost of this Court as also of the two Courts below.
Ramaswami, C.J.
26. I agree.