Bengal Nagpur Railway Co. Ltd. v. Nibaran Chandra Bhar

1. This is an appeal, lodged in the name of the Bengal Nagpur Railway Company, Ltd., against the decision of the learned Subordinate Judge of the 1st Court at Alipore, reversing the decision of the learned Munsif of the 2nd Court at Alipore, in a suit brought against the Company Ly one Nibaran Chandra Bhar.

2. The facts material for the disposal of this appeal may be briefly stated as follows:—

The Plaintiff sued to recover the value of a consignment of goods, described in the plaint as “glazed cloths of various imitation varieties” booked from Howrah for carriage and delivery to the Plaintiff at Khargpur. It was claimed that the goods had been securely packed, and were duly made over to the charge of the Company, but that the Company owing to the negligence and misconduct of its officers, failed to deliver the goods to the Plaintiff. The claim was resisted by the Company which contended that the parcel made over to its charge contained silk goods of more than one hundred rupees in value; the Plaintiff failed to declare the contents and the value thereof, and so contravened the provisions of sec. 75 of the Railways Act; therefore he forfeited the right to hold the Railway Company responsible for the loss. The learned Munsif who tried the suit came to the conclusion that the parcel made over to the Company did not contain “cloths of imitation varieties” as stated in the plaint, but that it contained silk goods to the value of more than one hundred rupees. Accordingly, although he found that there was negligence and misconduct on the part of the servants of the Company, he held that the Company was protected under sec 75 of the Railways Act, and dismissed the suit.

3. On appeal the learned Subordinate Judge came to the same conclusion as the learned Munsif regarding the description of the goods, and held that the contents of the parcel were goods of genuine silk over Rs. 100 in value-articles of which the Plaintiff was bound to declare the value. The Company relied on sec. 75 which protects it in the event of “loss, destruction or deterioration” of the parcel. The learned Subordinate Judge found that in this case the evidence clearly established conversion by the servants of the railway themselves; and holding that theft or misappropriation by railway servants themselves did not come within the meaning of the word “loss,” he found that the Company was not protected by sec. 75. Accordingly he allowed the appeal and decreed the suit.

4. The matter has now been carried to this Court on second appeal. The findings of the Courts below establish two points conclusively—that the parcel despatched from Howrah to the Plaintiff at Khargpur did contain silk goods to the value of over rupees one hundred, and that it could not be delivered to the Plaintiff at Khargpur because it was stolen by servants of the Company. And the only point for determination is whether the Company is protected by sec. 75 of the Railways Act. There is no room here for the argument that was suggested that the case is really one which falls under sec. 152|161 of the Contract Act, an argument answered by sec. 72 (2) (b) of the Act.

5. Sec: 75 absolves the Company from responsibility for the loss, destruction or deterioration of the parcel unless its contents and value are duly declared. The contents and value were not duly declared, and so if the Appellant Company can show that in the circumstances of the present case theft by the servants of the Company falls within the scope of the term “loss,” it is entitled to succeed in this appeal.

6. Mr. Surajit Chandra Lahiri, who appears for the Appellant Company, has taken me through the rulings of this Court from the first case, that of The Assam Bengal Railway Co., Ltd. v. Radhica Mohan Nath(1) to the latest case of The Secretary of State for India in Council v. Surjyamall Haribaksh(2). He does not contend for the wider proposition that mere nondelivery of a parcel amounts to loss under sec. 75, for which support is forthcoming in the first case cited, but he has contended that apart from a single ruling of Lort-Williams, Shamsul Huq v. Secretary Of State For India In Council*, in Council(3) all other decisions are unanimous on the narrower proposition that conversion by the servants of the Company constitutes “loss” within the meaning of the term. The leading case is that of The East Indian Railway Co. v. Jogpat Singh(4), where the observations of Page, J, were subsequently followed by Rankin, C.J, in The Great Indian Peninsular Railway Co., Ltd. v. Jalim Chand Patwari(5). Rankin, C.J, in that case observed that

“It is clear, therefore, that as the word “Loss” is used in the form there may be a loss although it is caused by theft of the servants of the Railway Administration or its agents, and there may be a lost although it is due to wilful neglect of the Railway Administration itself”.

7. The point has been brought out in the latest ruling placed before me, that of The Secretary of State for India in. Council v. Surjyamall Haribaksh

“Sec. 75 should not be read so as to exclude cases of loss by wilful neglect or connivance of railway officers, the section has no such qualification”.

8. In the case under report the Plaintiff consigned a parcel of silk goods to a station where delivery of the same was taken by other persons on bogus documents, the delivery being facilitated by the negligence or the connivance of the railway staff. Their Lordships held that loss by theft or fraud was clearly a loss within the meaning of sec. 75, and finding that the Plaintiff in that case had not declared the value of the silk in the parcel, held that he was hit by sec. 75 and could not escape the effect of the section on the ground that the loss happened by the negligence or connivance of the railway servants. It appears to me that, on the facts of the present case, I should follow the ruling just quoted, and similarly hold that as the Plaintiff failed to declare the value of the goods he consigned to Khargpur, he is hit by sec. 75 of the Railways Act, and cannot escape the effect of the section on the ground that the goods were stolen by servants of the Company.

9. This appeal is accordingly allowed and the decision of the learned Subordinate Judge is set aside.

10. The suit is dismissed—the Appellant will get his costs in all Courts.

11. Leave to appeal is refused.