EAST INDIAN RAILWAY COMPANY Vs. CHANGA KHAN

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiffs against the East Indian Railway Company for the loss of a certain parcel consigned to the Company from conveyance from Bombay to Bankipore, the value of which is stated to be Rs. 416-5-7 1/2 pies. After a prolonged correspondence a bout the claim, the plaintiffs submitted to the defendants a detailed statement of the goods contained in the parcels, and it appears from that statement that fancy silk handkerchiefs of the value of Rs. 138-2 as had been lost with the parcels. The defendants thereupon denied their liability, relying on Section 75 of the Railways Act, IX of 1890, and Schedule II thereto annexed. The Munsif and the Subordinate Judge in concurrence held that the defendants were not liable for the silk, inasmuch it had not been declared or insured. But they held that the plaintiffs can recover the value of the other goods contained in the parcel, which did not appear to have come within Schedule If of the Act.

(2.) The second appeal came before Mr. Justice Teunon sitting alone and he was of opinion, and rightly in our view, that, the whole case of the plaintiffs must fail if scheduled goods of the value of over Rs. 100 were in the parcel, and for this reason, that Section 75 of the present Act, differing in that respect from the former Act, says that the Railway Administration shall not be responsible for the loss, destruction or deterioration of the parcel, and not of the articles mentioned in the II Schedule. It is, therefore, clear that if this parcel contained silk in a manufactured or unmanufactured state and whether brought up or not brought up with other materials of the value of Rs. 100, the Railway Company are not responsible for anything contained in the parcel; and that was the sole ground upon which the Railway Company came before Mr. Justice Teunon in appeal. Mr. Justice Teunon, as we have seen, decided that point in favour of the Railway Company, and there we should have thought would have been an end of the matter, inasmuch as the plaintiffs did not file any cross-objection and did not say anything about the question of silk. But Mr. Justice Teunon appears to have thought that the Company could not recover anything unless there really was silk to the value of over Rs. 100 in the parcel and ho, therefore, remanded the case to the lower Court for a fresh finding as to the particular items of silk handkerchiefs and their respective values, directing that the Subordinate Judge in the first Court of appeal should come to a finding on the following issue, namely, what is the aggregate value of the handkerchiefs in which on the evidence adduced, it may be found that the value of silk exceeds the value of the other materials?

(3.) The learned Subordinate: bulge on remand expressed himself wholly unable on the evidence to decide this issue. But he said that he was satisfied with the statement in the plaint that the silk handkerchiefs were worth Rs. 91 and the other handkerchiefs which were not silk were worth Rs. 42 and odd, and this was a sufficient basis for making a new decree.