Bapna, J. - (1.) THIS is an appeal by the plaintiffs in a suit for recovery of damages from the defendants-respondents.
(2.) A marble statue weighing 108 mds. and 13 seers packed in gunny bags and straw was consigned by Badrinarain Malpani on 9th December 1939 from Makrana on the then Jodhpur Railway for being carried to Palitana on the then Bhavnagar State Railway. The consignee was 'self. It was alleged by the appellants that the Station Master accepted the goods for carriage on 9th December 1939 but gave the Railway Receipt No. 694729 to the consignor on the 11th December 1939. It was also alleged that the statue had been consigned at railway risk and the highest freight payable had been offered to be paid. Badrinarain endorsed the Railway Receipt to Abdul Gani, who in turn transferred it to Varma & Co. Varma & Co., transferred it to their agent Abdul Hakim. It was alleged that the statute was loaded in an open wagon and while the wagon was running between Kuchaman Road and Gudha on the then B.B. & C.I. Rly. the consignment caught fire. The Station Master Gudha detached the wagon and extinguished the fire. But on the morning of 12th December 1939 the Station Master again noticed fire in that wagon and by the time the fire was extinguished the statue had broken into pieces. Abdul Gani had also consigned 84 marble blocks weighing 112 mds. and 37 seers on 10th December 1939 from Makrana under Railway Receipt No. 694730 to Palitana and this railway receipt was also finally endorsed in favour of Abdul Hakim. Both these consignments had been loaded in the same wagon. The two consignments reached Palitana and were offered to the consignee but as the statue had become useless and marble blocks had been spoiled the consignee refused to accept them and the present suit for compensation in the sum of Rs. 10,296/9/- was instituted in the court of District Judge, Jodhpur. Abdul Hakim and two other persons proprietors of Messrs. Varma & Co. are plaintiffs in the case while the Jodhpur Railway, Bhavnagar State Railway and the B.B. & C.I. Rly. are defendants. Owing to the taking over of the Jodhpur and Bhavnagar Railways by the Rajasthan and Saurashtra States and thereafter by the Union of India, the respondent in the case is the Union of India as representing the former Jodhpur Railway, Bhavnagar State Railway and the B.B. & C.I. Rly. The defence of the Bhavnagar State Railway was that the damage to the goods was not caused on that Railway and therefore no cause of action arose against the Bhavnagar State Railway. A plea was also taken that the notice required by sec. 77 of the Indian Railways Act had not been given to that Railway. It was alleged that so far as the marble blocks were concerned no damage had been caused and the plaintiffs had no cause of action for claiming damages for those marble blocks. The defence on behalf of the Jodhpur Railway and the B.B. & C.I. Rly. was that the Railway Receipt had been handed over to the consignor on the same day, i.e. 9th December, 1939, that the statue was not booked at railway risk and that the freight payable for booking of a marble statue at railway risk was much higher than what had been agreed to be paid by the consignor. The plaintiffs' right to sue was denied. A plea was taken that the consignment was covered by Risk Note Forms H and C and absolved the Railway of any liability. A further plea was taken that the consignor was bound to declare the value of the goods consigned under sec. 75 of the Indian Railways Act for the purpose of effecting insurance and as the consignor had failed to make the required declaration the railways were absolved from all liability. It was held by the trial court that the Railway Receipt No. 694729 for the statue was delivered to the consignor on the 9th December, 1939 i.e. on the same day the goods were accepted for booking, that the statue had not been booked at railway risk, that there was no negligence on the part of the Railway which may have led to the fire being caused on the first or second occasion, that the Risk Note under which the consignment was booked was 'H' only and the allegation that it was under Risk Note 'C' had not been proved, that the plaintiffs were transferees for value from the consignor and were entitled to institute the suit, that the suit as framed did not suffer from the defect of multifariousness, that the Bhavnagar State Railway was not responsible for the loss in any case as the damage was not caused when the goods were being carried on that Railway, that the plaintiffs could not claim any compensation for the rough marble blocks which had remained undamaged, that the compensation for the damage caused to the statue was the price paid for it since the damage caused was beyond repair. It was found that Rs. 7,924/14/6 was the price of the statue and Rs. 57/10,6 had been paid on account of Royalty to the Jodhpur Government. On the application of sec. 75 of the Indian Railways Act it was held that the article was one of the excepted articles and being of a value more than Rs. 100/- it was incumbent upon the consignor to declare its value at the time of delivering the same or carriage by Railway and the consignor had failed to declare its value. The suit was accordingly dismissed with costs. The plaintiffs have come up in appeal. Learned counsel for the appellants has argued that the consignor Badrinarain had declared the value of the marble statue to be Rs. 9,000/-to the Station Master of Makrana and has relied on both direct and circumstantial evidence in proof of the above allegation. Four witnesses Badrinarain, P.W. 4; Noor Mohammad P.W. 6, Abdul Gani P.W. 10 and Abdul Hakim P.W. 17 were produced by the plaintiffs in support of the allegation as to the declaration of value. A document Ex. P. 75 purporting to be a copy of the declaration has also been produced. Learned counsel also relied upon the amount of freight mentioned on the Railway Receipt and built up an argument that the figure shown on the Railway Receipt could only have been arrived at after taking into consideration the value of the consignment at Rs. 9000/- and that the aforesaid fact strongly supported his contention that a declaration for the value of the statue at Rs. 9000/- had been made. Under sec. 75 of the Indian Railways Act when any articles mentioned in the Second Schedule - and the marble statue is one of such articles - are contained in any parcel or package delivered to a Railway Administration for carriage by railway and the value of such articles exceeds Rs. 100/- (according to the law in force in 1939) the Railway Administration is not responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the Railway Administration caused its value or 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. Again according to sec. 55 a railway administration is authorised to impose conditions not inconsistent with the Railway Act or with any general rule thereunder with respect to the receiving, forwarding or delivering of any animals or goods. The General Rules in force from 1st April 1939 (Edition 22nd - published by the Indian Railways Conference Association and applicable to the then Jodhpur Railway) give a notice by Rule 34 in respect of the excepted articles mentioned in sec. 75 of the Act and exceeding Rs: 100/-in value that the Railway Administration shall not be responsible for the loss, destruction or deterioration of a package containing such articles unless the person sending or delivering the package to the Railway caused its value or contents to be declared or declared them at the time of the delivery of package for carriage by Railway and unless an insurance rate over and above the railway charges for carriage for extra risk was paid to and accepted by some person duly authorised to receive the same on behalf of the Railway. This rule only emphasises the provisions of sec. 75 and makes it compulsory for the consignor to pay or agree to pay insurance charges over and above the freight charges. Rule 35 provides for an application for insurance of any consignment of excepted articles valued at Rs. 500/- and over to be made to the District Officer of the Railway. The Jodhpur Railway had notified that the Station Masters at the several stations on the line were authorised to insure any of the excepted articles valued at from Rs. 100/- to Rs. 500/- but that for insurance of any such articles valued at more than Rs. 500/- applications must be made to the Chief Traffic Manager and that no other person except mentioned above were authorised to accept insurance charges. This notice to consignors was in writing and included in the terms and conditions for carriage of goods by the Jodhpur Railway and printed on the back of the Goods Consignment Note. The consignment note itself contained a clause drawing attention of the consignors to the terms and conditions printed on its back, and subject to which the goods were accepted by the Railway. It may be stated at once that the rule as to making application to the District Officer of the Railway under Rule 35 of the General Rules published by the Indian Railways Conference Association, Book No. 22 or the notice given by the Jodhpur Railway that an application should be made to the Chief Traffic Manager, Jodhpur for insurance of an excepted article over and above the value of Rs. 500/- is not consistent with sec. 75 of the Indian Railways Act which only requires the consignor to cause the value or contents of the excepted article in excess of the particular value to be declared or declare them at the time of the delivery of the parcel of package for carriage by the Railway. This can only be done to the officer of the Railway authorised to receive parcels at a particular station and such officer may be either the Station Master or some other officer present at the railway station and authorised to receive the parcels. In the present case it is not denied that the station master was the officer authorised to receive parcels or packages for carriage on behalf of the railway. Sec. 75 provides for declaration of the value to that officer and not to other officers elsewhere. The consignor is not to bother himself! with any superior officer and it may be a matter for internal arrangement for the Station Masters concerned to obtain the authority or receive instructions from the District Officer under the General Rules or the Chief Traffic Manager under the Jodhpur Railway Rules for further action to be taken in the matter. The Only important point therefore in this case is whether the consignor had declared the value of the consignment to be Rs. 9000/- as alleged by the plaintiffs. On the material on record the lower court has held that the evidence is very discrepant and unreliable and we agree with that finding in this case.......According to Mr. Deen Dayal Sharma the declaration of value is usually made on the consignment note and in this case also it could only be expected to be on that form. The Goods Consignment Note filled in by Badrinarain in respect of the statue is Ex. D. 1 and of course does not contain any declaration of value of the goods consigned. It may be mentioned however that there is no column in the printed form of Goods Consignment Note used in this case for declaring the value of the consignment and it seems that there is a separate form for declaration under sec. 75. A sample of that form is given in the commentary on the Indian Railways Act by Hari Rao 1949 Edition at page LXXII Appendix B. There is no positive evidence on behalf of the Jodhpur Railway that no separate form for declaration under sec. 75 was used on the Jodhpur Railway and the evidence of Mr. Deen Dayal is not of great value on this question. Be that as it may, the fact remains that the Jodhpur Railway disclaimed its liability at least sometime in August 1940 on the ground that the consignor had failed to declare the Value of consignment, but it remained unchallenged not only during the course of further correspondence but also while the plaint was drafted in this case. The alleged copy of the declaration Ex. P. 75 was not produced in court with the plaint on 25.11.40 but was so done as late as 9th May 1941 after the objection as to omission to make a declaration had been taken by Jodhpur Railway in their written statement on 28th January 1941. It seems to us that if a declaration had been made and its copy Ex.P.75 retained by the plaintiffs it would have been promptly put up in reply to the objection during the correspondence prior to institution of suit or at any rate with the plaint on 25th November 1940 in this case Learned counsel tried to support his oral and documentary evidence by what he calls a strong piece of circumstantial evidence. He argued that the charges of Rs. 331/2/- mentioned in the R/R as chargeable for this consignment include freight charges plus insurance charges. In the first place according to General Rule 36 the insurance charges are to be shown separately on invoices. This has not been done in this case. Secondly on going through the calculations as suggested by learned counsel it was discovered that the amount of charges made would not tally with the figure if the consignor had been charged correctly and learned counsel then argued that the Station Master may have made a mistake in the calculation. In this connection Ex. P. 28, letter written by counsel for the plaintiff referred to earlier, shows that it was never the case of the plaintiffs that an extra sum for insurance had been charged from the consignor. In our opinion the finding of the lower court is correct that no declaration was made by the consignor at the time of tendering the article for carriage by the Railway to the Station Master Makrana and as this was an excepted article above the value of Rs. 100/-the Railway is exempted from liability under sec. 75 of the Indian Railways Act. On this ground the plaintiffs' suit for compensation for damage to the statue must fail. Learned counsel however addressed us on other points in the case and our decision on them may also be recorded.
(3.) LEARNED counsel for the respondent urged that the Railway Receipt Ex. P. 3 was the contract between the parties for carnage of goods and on that Railway Receipt there was an endorsement by a seal in big letters that the consignment was being carried at owner's risk and therefore on the fact of the contract the railway was not responsible for damage caused by fire. The plaintiffs' reply to this argument is that the Railway Receipt had not been delivered to the consignor till the 11th December and the consignor had therefore no occasion to object to such an endorsement having been made on the Railway Receipt. It may be mentioned that this reply is not correct, although it had been set up even during the correspondence prior to the institution of the suit. In connection with the proof of the price of the statue the plaintiffs have produced two documents Ex. P. 1 and Ex. P. 2. Ex. P. 1 is a receipt by Abdul Gani passed in favour of Varma & Co. for Rs. 7511/- as the price of the statue and is dated 7th December 1939. It is mentioned in this document that Abdul Gani would receive a further sum of Rs. 401/- on account of customs duty and loading charges on delivery of the railway receipt. Ex. P.2 is dated 9th December 1939 and purports to be a receipt for Rs. 401/-executed by Abdul Gani in favour of Varma & Co. and it is specifically mentioned that this money had been received by Abdul Gani after delivery of the Railway Receipt to Varma & Co. This document proves beyond any doubt that the railway receipt had been given to the consignor on the 9th December 1939 and he gave it to Abdul Gani who passed it on to Varma & Co and received Rs. 401/- as agreed to by document Ex. P. 1. The other argument advanced on behalf of the plaintiffs is that such an endorsement if unaccompanied by a proper risk form executed by the consignor is inoperative and invalid. This argument is not without force. The relevant portion of sec. 72 of the Railways Act provides that the responsibility of a Railway Administration for loss, destruction and deterioration of goods delivered to the Administration to be carried by railway, shall, subject to the special provisions of the Act, be that of a bailee under secs. 151,152 and 161 of the Indian Contract Act and that an agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void unless it is in writing signed by or on behalf of the person sending or delivering the goods to the Railway Administration and is otherwise in a form approved by the Government. The affixation of the seal on the railway receipt is of no value whatsoever unless that seal is in pursuance of an agreement entered into by the consignor in a form approved by the Government. In the present case the consignment was wrapped in grass and gunny bags and it is questionable whether the bailee had acted with prudence in loading such a consignment packed in combustible articles in an open wagon. Learned counsel for the respondent argued that the consignment had been loaded in an open wagon at the request of sender who had executed a Risk Note Form 'C' Ex. D. 1. The finding of the lower court is that the execution of this Risk Note Form 'C by the consignor had not been proved. It may be mentioned that while on the original Goods Consignment Note it has been mentioned that the consignment is at owner's risk under forms H & C, the original Railway Receipt Ex. P. 3 only mentions that it is at owner's risk under form H. In blank column against Risk Note Form the words inscribed are 'ORH'. The carbon copies of the Railway Receipt Ex. P. 3 sent to the Railway over which the wagon had to pass mention in the column against Risk Note Form the words 'ORH & C' The words '& C appear to have been subsequently inserted as their position with respect to the words 'ORH' is not the same on the two carbon copies. The finding of the lower court on this point is correct. The finding of the lower court as to the amount of loss sustained by the plaintiff by the damage and the plaintiffs being the transferees from the consignor has not been challenged by counsel for the respondent and no other point was argued before us. ;