1. This appeal arises out of a suit filed by the plaintiffs claiming damages for loss of three boxes containing Eversharp fountain pens and pencils which were consigned by railway from Bombay to Lahore. The damages are sought from the Dominion of India representing the Railway authority.
The facts briefly are that on 24-2-1948, the plaintiffs, a firm carrying on business in Bombay, received a telephone message from Lahore to consign three boxes of Eversharp fountain pens and pencils, and on 25-2-1948, these three boxes were packed and plaintiff No. 2 Louis D'Souza, who is an employee of the first plaintiff firm, was asked to take these boxes to Lahore. Louis D'Souza got into a second class compartment and put these three boxes in the luggage van and obtained a luggage ticket in respect of these three boxes. He got out at Delhi as he had to change the train for going to Lahore.
At Delhi he made inquiries at the luggage van whether these boxes had been brought. He could not get any information and he was told to make further inquiries at Amritsar, and at Amritsar when he arrived there he was told that the boxes had been missing. In fact, after some time one box was traced which was returned to the plaintiffs, but the other two boxes were never traced and at the hearing the plaintiffs confined their claim for damages to the two boxes which had been lost.
2. Now, three substantial defences were taken up by the Dominion of India before the Court below. The learned Judge passed a decree in favour of the plaintiffs and the Dominion of India has come in appeal, and the same three defences have now been urged before us by Sir Jamshedji Kanga on behalf of the Dominion of India.
The first contention is with regard to the notice under Section 80, Civil P. C. What is urged is that in the notice all that is stated is that the three cases contained stationery. The plaintiffs had not specified the fact that the stationery which they had packed in these three cases was Eversharp fountain pens and pencils.
In our opinion there is no substance in this contention. Section 80 requires that the notice to be given to Government should be in a particular form and what the notice has to contain is the cause of action and the relief sought by the plaintiff. In the notice given the cause of action is set out and the relief sought is also mentioned. The nature of the goods is described, because it cannot be disputed that fountain pens and pencils are stationery. The mere fact that particulars of the stationery are not given would not invalidate the notice.
3. The second contention is on a question of fact and Sir Jamshedji has urged that the plaintiffs have failed to prove that these three cases in fact contained Eversharp fountain pens and pencils on which the claim for damages is based. (His Lordship after examining both oral and documentary evidence and concluding that the plaintiffs had established that they had put in the luggage van of the train three boxes containing fountain pens and pencils on which the claim was based proceeded):
4. But the real question which has been agitated before us is the question as to whether the railway company has been freed of its obligation as a bailee by reason of the provisions of Section 75, Railways Act. That section makes it obligatory upon a person who delivers a parcel or package to a Railway Company containing any article mentioned in the second schedule of the value exceeding Rs. 300 to make a declaration at the time of delivery of the value of the article delivered and also makes it obligatory upon him, if so required by the railway administration, to pay a percentage of the value so declared by way of compensation for increased risk.
The principle underlying Section 75 is clear. The articles mentioned in the second schedule are valuable articles, and if the railway company is to act as a bailee, the railway company should have knowledge that it is carrying valuable articles, and the bailor has to give to the bailee an additional compensation for the risk that it takes in acting as a bailee, and unless the value is declared and unless the increased compensation is paid if so required by the railway company, no responsibility rests upon the railway company if there is any loss or damage to the article carried by it.
Turning to the second schedule, the article with which we are concerned is the article mentioned in Clause (a) and that is gold and silver, coined or uncoined, manufactured or unmanufactured. The contention of the Dominion of India is this that as far as the fountain pens are concerned there were two kinds of fountain pens, one a presentation fountain pen and the other an ordinary fountain pen. With regard to the ordinary fountain pen, the nib and the clip were of gold. With regard to the presentation fountain pen, not only the nib and the clip were of gold, but also the cap. With regard to the pencils, the nozzle and the clip were of gold.
But our attention has been mainly drawn to the presentation fountain pens, because if we hold that the presentation fountain pens fall in Clause (a) of the second schedule, then, as the value of these presentation fountain pens is admittedly more than Rs. 300, the case would fall under Section 75. Therefore, the question that we have to decide is whether a fountain pen having its clip, nib and cap made of gold can be described as gold manufactured.
5. Now, apart from authorities to which we shall presently turn, if one were to give a plain and natural meaning to the expression used in the second schedule, it is clear that what the Legislature contemplated was primarily the metal gold, but it went on to explain that gold may either be as a raw metal or the metal might be manufactured into some other article. But what is emphasised in Clause (a) is the metal of which the article is made, viz., gold or silver.
We may accept the view taken by the learned Judge below that when one looks at an article and finds that the predominant feature of that article is gold, then undoubtedly it is gold which is manufactured into that article. When we look at this presentation fountain pen, it is impossible to contend that the predominant feature of this article is gold. The predominant feature is the various ingredients which constitute an article into a fountain pen, the labour and the skill which has gone to make an article which can write with the help of the ink which is put into it and which ink is Intended to last for some time.
What is urged by Sir Jamshedji is that in order to determine whether the article falls within the ambit of Clause (a) one or the other of the two following tests should be applied, and the first test suggested is that we should value the basic materials contained in this article, and if we find that the value of gold is higher than the value of all other materials, then we must hold that the article is gold. The second test suggested is that we should value the component parts of the pen, and if we find that the cap, the nib and the clip which is made of gold values more than the other component parts of the pen, then we should hold that the article is of gold.
In our opinion, neither of these two tests is a satisfactory test and does not really bring out the correct idea underlying the expression used in Clause (a). It is pointed out that the evidence clearly shows that the value of gold in this presentation fountain pen was 1/28th of a tola, and the price of a tola of gold in February 1948 being Rs. 105 the value of gold used in this pen was Rs. 3-12-0. This is the report of Mr. Nanji who is a chemist. Then attention is drawn to his evidence and Nanji says that his estimate of the value of materials other than gold in the fountain pen is Rs. 2-4-0.
Now, the other material used in the pen is mostly bakelite and we do not at all know whether Mr. Nanji is an authority on bakelite. But Sir Jamshedji says that he is entitled to rely on this admission of Mr. Nanji as there was no re-examination on this point by the plaintiffs. Therefore, according to Sir Jamshedji, inasmuch as the value of the gold in this pen is Rs. 3-12-0 as against the value of the other materials which is Rs. 2-4-0, we must hold that the article is gold manufactured. With regard to the second test it is pointed out that the larger nib is sold between Rs. 10 and Rs. 12 and the smaller one between Rs. 8 and Rs. 10. At another place Noronha stated that the value of the nib was about Rs. 15. It is urged that if this is the value of the nib taking the value of the clip and the cap, the value of the component parts which are made of gold would be more than the value or the other component parts that went to make up the pen.
Now, apart from the fact that this is not the correct test, as we shall presently point out, there is a clear fallacy underlying this mode of assessing the value of a pen. A pen is not merely made up of the basic materials of which it is constituted, nor is it made up merely of its constituent parts. A great deal of labour, skill, and designing must go to the making of this article, and no attempt is made to assess the value of these imponderable factors, and therefore to say that because the value of gold used in this pen is more than the value of other materials therefore the object becomes an object of gold, is a totally wrong approach to the question.
6. Strong reliance is placed on a decision of this Court for the tests which have been suggested by Sir Jamshedji as the proper tests to be applied in this case, and that is a decision of this Court in -- 'Lakhmidas Hirachand v. G. I. P. Railway Co.', 4 Bom HCR 129. In that case Chief Justice Couch and Mr. Justice Westropp had to consider Section 10 of Act 18 of 1854 and the article they had to consider was a 'dhotar' with a silk border, and Section 10 which was similar in terms to Section 75 made it incumbent upon the bailor to declare certain articles and one of the articles mentioned in Section 10 was 'silks in a manufactured or unmanufactured state, wrought up or not wrought up with other materials.'
The article of clothing, the 'dhotar', which the Court had to consider, had a silk border and the question was whether that article of clothing fell within this definition, and with regard to this a reference was marie to this Court by the Judge of the Court of Small Causes, Bombay, and the learned Chief Justice stated what the general test in cases like this should be, and this is what he says (p. 131) :
'I should take as a general test in these cases, whether the value of the silk is more than half of that of the whole article. This consideration would appear to have influenced the judgment of the Court in -- 'Brunt v. The Midland Railway Co.', (1864) 33 LJ Ex 187. The evidence in this case, as stated by the Judge, fails to show that the silk here bore so large a proportion to the other materials as to bring the goods within the denomination of silks wrought up with other materials within the meaning of the Act.'
Mr. Justice Westropp in a concurring judgment agreed with the learned Chief Justice and he referred to an earlier case which he and Mr. Justice Tucker had decided, and there they had to consider not only a 'dhotar' with a silk border, but also a 'dhotar' with a gold border, and the same question arose as to whether the article was silk wrought up with other materials, and that Bench also applied the same test and the Court directed that the value of the silk in the goods and also the value of the gold in the goods should be ascertained in order to determine whether the article was silk or not.
In our opinion, this decision, far from helping the appellants, is really against them, because the section they were construing used language which is materially different from the language used in Clause (a) of the second schedule. We have another article in the second schedule in Clause (1) which is 'silks in a manufactured or unmanufactured state and whether wrought up or not wrought up with other materials.' That corresponds to Section 10 which the learned Judges in - 'Lakhmidas Hirachand v. G. I. P. Ry. Co. (A)' were considering.
It will be immediately noticed that whereas in Clause (a) the Legislature has merely referred to gold manufactured or unmanufactured, when dealing with silk it not only refers to silk manufactured or unmanufactured, but also whether wrought up or not wrought up with other materials. Therefore, it is obvious that when silk is wrought up with other materials, in order to determine whether the article is still silk one would have to determine the value of silk as against the value of other materials, because if the value of other materials was more, it could not be said that it was silk that was wrought up with other materials but rather that other materials were wrought up with silk.
But in Clause (a) the question is not whether gold is wrought up with other materials; the question is whether the article is gold itself, manufactured or unmanufactured. Therefore, it is clear that the test that should be applied to decide whether an article is silk as falling under Clause (1) is a very different test from the test that would have to be applied to determine whether an article is gold manufactured or unmanufactured as defined in Clause (a) of the second schedule.
7. There is another decision of the Calcutta High Court in -- 'Narendra Nath Sen v. East Indian Railway Co. Ltd.' : AIR1925Cal115 (C). In that case gold and silver were powdered and were used in some medicine, and the question arose whether the medicine was gold and silver manufactured or unmanufactured, and Mr. Justice Page held that the words 'gold and silver, coined or uncoined, manufactured or unmanufactured' should not be technically, construed but a broad and common sense meaning should be attributed to them. With respect, we agree with the learned Judge, and giving to this expression 'gold manufactured or unmanufactured' a broad and common sense meaning, it is impossible, in our opinion, to say of a fountain pen merely because it has a nib or a clip or even a cap of gold that it is gold manufactured. Essentially it is a fountain pen; essentially it is a fountain pen made of bakelite. Some parts of it contain gold, but even so it could not be said of this article that its predominant feature Is gold and that the article is of gold.
8. We may point out that the Dominion of India has not resisted the liability to the plaintiffs on any other ground except the ground falling under Section 75. We, therefore, agree with the learned Judge in the view that he took that the fountain pens and pencils in suit did not fall within the second schedule and therefore the railway company was liable in damages to the plaintiffs.
9. The result is that the appeal fails and must be dismissed with costs.
10. Liberty to the respondents' attorneys to withdraw the sum of Rs. 500 deposited in Court and appropriate it towards part satisfaction of the cost.
11. Appeal dismissed.