CHUNILAL Vs. THE GOVERNOR-GENERAL IN COUNCIL AS REPRESENTING G.I.P. RAILWAY

JUDGEMENT

(1.) APPELLANT is the plaintiff; One Chunilal, who consigned by goods train a dealwood -box containing goods to Bombay on 12th May, 1945. The box was lost in transit. He sued the M. & S. M. and the G.I.P. Railways represented by the Governor -General in Council to recover the value of its contents, namely, Rs. 2,031 -12 -0. The Principal City Civil Judge gave him a decree only for Rs. 142 with proportionate costs against the G.I.P. Railway only, it not being disputed that it actually received the box in transit from the M. & S. M. Railway. The learned Judge found that the box in question actually contained the following articles as claimed by the plaintiff (1) two gross red -blue pencils worth Rs. 72, (2) 5 gross black lead pencils worth Rs. 70, (3) 20 gross swadeshi brass nibs worth Rs. 480, (4) 700 dozen sewing machine English needles worth Rs. 1,400, (5) 3 dozen playing cards worth Rs. 9 -12 -0. Plaintiff examined P.W. 2, the proprietor of the shop who supplied these goods to the plaintiff and also packed them and found on his evidence and also his account book and a cash bill that all these articles were in. fact in this box consigned by goods train. The forwarding slip handed in by the plaintiff (Ex. B -1) described the contents of the box as follows : " One G. Parcel. stationery pencil, value Rs. 900." Holding plaintiff strictly to the description of " pencils " the learned Judge gave him a decree for Rs. 142 being the value only, of the red and blue and black lead pencils.

(2.) I am far from clear as to the legal reasoning on which the learned Judge acted in holding that plaintiff could only recover the value of " pencils " and not even other articles of stationery to which category brass nibs and also needles which can be used for sewing account books and other office purposes can fall. The learned Judge was guided by an old Bombay decision in Ishwardas Gulabchand v. The Great Indian Peninsula Railway Co., I.L.R. (1878) 3 Bom. 120 and Section 78 of the Railways Act. The Bombay decision is an interesting one. On the facts in that case, a plaintiff consigned 12 bags of sugar candy describing them in the consignment note as 12 bags of alum. A Bench of the Bombay High Court held that the plaintiff could only recover the value of alum bags instead of sugar candy bags. The learned trial Judge failed to observe the very important differentiation between the facts there and the present case, namely, that a higher rate of freight was chargeable for sugar candy and that by describing the bags as containing alum plaintiff got sugar candy transported at a lower rate of freight. It is not suggested in the present case that any of the articles found to be in this box came within the scope of Schedule II as articles requiring special declaration or valuation under Section 75 of the Railways Act. It is not disputed that all; the articles in the box would be liable to precisely the same rate of freight. The learned Judge then went on to observe that it was clear from Section 78 of the Railways Act and also this Bombay decision that in view of the description given in the forwarding slip, the plaintiff would be entitled to get only the value of the pencils. Section 78 protects the railway administration from responsibility for loss, destruction or deterioration of any goods,

(3.) THE decree passed by the lower Court will be modified accordingly. The plaintiff will have a decree for Rs. 900 with costs to the extent to which he has succeeded against the G.I.P. Railway (the second defendant) only in the trial Court and in this Court. The railway will bear its own costs in the lower Court and in this Court.