- (1.) THIS is a plaintiffs appeal and arises out of a suit for recovery of Rs. 1880-5-0 as damages for loss of goods on the railway. The case of the plaintiff was that on 30th December 1948 he booked three packages containing Chappals from Rawatpur, a station on B, B. and C. I. Railway; for carriage to Barhanpur, a station on G. I. P. Railway, and to be delivered there to M/s Raja Brothers. The consignment reached Barhanpur but M/s Raja Brothers did not take delivery whereupon the plaintiff got it rebooked on 20th April 1949 for being carried to Kanpur and delivered there to the plaintiff. On 24th May 1949 the plaintiff presented the railway receipt for taking delivery but when he saw the packages he found them in a broken condition. He therefore, took open delivery on 26th May 1949 and it was then discovered that the packages contained grass and bricks instead of Chappals. The plaintiff claimed to have suffered a loss of Rs. 1880-5-0 and he brought this suit on 20th December 1949 for recovering it from the Dominion of India. The main defence was that the plaintiff had in reality booked only grass and bricks and the packages never contained Chappals, that Raja Brothers was only a fictitious concern and that the plaintiff had indulged in a fraudulent contrivance to cheat the railway. The suit was dismissed by the trial court and its decision was confirmed by the lower appellate court.
(2.) IT has been found by both the courts below that the packages booked by the plaintiff did really contain chappals and that the same goods arrived at Kanpur on 3rd May 1949. The reasons why the suit of the plaintiff has been dismissed is that as the plaintiff did not take delivery of the goods until the expiry of 21 days after the arrival of the goods at Kanpur the railway was protected under rule 29 of the Goods Tariff Rules and the plaintiff was not entitled to claim any damages. It may be mentioned that the bar of Rule 29 to the claim of the plaintiff was not pleaded in the written statement and it was only at the stage of arguments before the trial court that the rule was pressed into service on behalf of the defendant. The plea was, however, allowed to be raised and was accepted. Before the lower appellate court it was urged for the plaintiff that in the absence of a specific defence based on Rule 29 and an issue in regard to it the defendant could not claim the protection of the rule. The court below, however, thought that as the facts on which determination of the applicability of the rule depended were covered by the issue framed in the case and what was stated by the plaintiff himself attracted the operation of Rule 29 the defendant could claim exemption from liability under the said rule even without a plea to that effect. The only point involved in the appeal is whether Rule 29 of the Goods Tariff Rules saves the defendant from the claim in suit. The contention of Mr. Seth learned counsel for the plaintiff is that the rule is ultra vires and that even if the rule is regarded as valid the protection of the rule is not available to the defendant inasmuch as it has failed to prove the conditions requisite for its application.
(3.) THE relevant portions of Rule 29 of the Goods Tariff Rules are as follows : "(1) That they are not accountable for any articles unless the same are booked and a receipt for them given by their clerk or agent, and that when the articles are so accepted for conveyance, the responsibility of the Railway for the loss, destruction or deterioration of the articles is subject to the provisions of S. 72 of the Indian Railways Act IX of 1890. (2) That in respect of goods not removed from Railway premises at station of destination within the time allowed free of demurrage and wharfage the Railway is not liable in any respect of any loss, destruction, deterioration of or damage to such goods arising from whatever cause notwithstanding that the Railway may have warehoused or otherwise kept the goods and notwithstanding that the Railway shall be entitled to be paid the authorised "charges for goods so left on their premises." ;