- (1.) In this second appeal the question raised is whether the defendant-appellant is entitled to the benefit of Section 77B, Indian Railways Act for short 'Act'.
(2.) On April 10, 1968, Kailash Chand Jain - a partner of the plaintiff-respondent firm, delivered two bars of silver to the railway administration at the Agra Fort Railway Station for being carried by the 84 Up Passenger Train to PDGR Bombay station and delivered to their commission agent, namely, M/s. Jain Brothers. The consignment was accepted by the railway administration and the Parcel Way Bill was issued to the consignor. Ordinarily the consignment ought to have reached the destination within two or three days. One of the bars of silver arrived at the Bombay Station, however, on June 21, 1968, and was delivered to the consignee. The other bar did not reach and it did not come to be delivered. The plaintiff gave notice under S.78B of the Act on May 30, 1968; the notice under S.80 Code of Civil Procedure was given on June 29, 1968. The suit was instituted on Sept. 25, 1968, for the recovery of a sum of Rs. 15,500/- as damages for the non-delivery of the goods.
(3.) In defence the contention raised, chiefly, was that S.77B of the Act precludes the plaintiff from claiming damages since the plaintiff neither paid nor engaged to pay the required percentage on the value declared of the goods by way of compensation for the increased risk.;