1. This second appeal is filed by the Union of India, against the decree and judgment of the learned District Judge, Bellary.
2. The plaintiff-respondent is a merchant in Bellary. Messrs. Bhimaji Kapurchand of Bombay despatched a parcel from Chinchpockli Station, Bombay to Bellary and sent the railway receipt to the plaintiff. The railway authorities did not deliver the parcel to the plaintiff in spite of demands and notices. Hence the present suit was instituted claiming Rs. 1,473-8-0 being the amount sent to Bhimaji Kapurchand as the value of the goods contained in the parcel. The plaintiff claimed Rs. 184-8-0 being the probable profit which he might have realised at 12% on the cost price. The trial Court dismissed the suit with costs. But the first appellate Court reversed the decree and judgment of the trial Court and decreed the suit as prayed for by the plaintiff.
3. The learned counsel for the appellants canvassed two propositions of law before me. He did not dispute the findings of fact arrived at by the first appellate Court.
4. Sri K. Nanjundiah, the learned counsel for the appellants relied on Section 75(1) of the Indian Railways Act in support of his contention. The said section reads as follows :
'(1) When any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds Rs. 300/-, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared in writing or declared them in writing 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 in writing a percentage on the value so declared by way of compensation for increased risk.' The relevant clauses in the second schedule according to him are Clauses (a) and (b). They are as follows :
'(a) Gold and silver, coined or uncoined, manufactured or unmanufactured;
(b) plated articles.'
In the instant case it is undisputed that the value of the property despatched is over Rs. 300/-. It is also established that the parcel contained Parker Fountain Pens 51, Major and Junior and their value by itself exceeds Rs. 300/-. It is proved that the Parker pens had gold caps and gold nibs. From this it is argued that the parcel in question falls within clause (a) of the Second Schedule of the Indian Railways Act. This argument is wholly unsound. Clause (a) refers to 'gold and silver, coined or uncoined, manufactured or unmanufactured.' It is not every article where there is some little cold or silver that falls within the scope of this clause. It is the predominant characteristic of the article that has to be decided. That is the true test. This question came up for consideration in the case reported in Dominion of India v. Eversharp Agency, (S) AIR 1955 Bom 98. In that case also a parcel containing Eversharp Fountain Pens and Pencils was lost in transit. The judgment of the Bench was delivered by Chagla C.J. The relevant observations are as follows :
'A fountain pen is not merely made up of the basic materials of which it is constituted, nor is it merely made up of its constituent parts. A great deal of labour, skill and designing must go to the making of the article. The words 'gold manufactured or unmanufactured' must be given a broad and common sense meaning and in doing so it is impossible 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 part's 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.'
5. I respectfully agree with these observations.
6. It is next urged that at any rate they are plated articles as mentioned in Clause (b) of the Second Schedule. It is argued that there is a gold plated cap to the fountain pen and the nib is gold plated, Hence these articles could be considered as plated articles. The plated article referred to does not refer to 'gold plated articles.' It refers to all plated articles. The appellant in this case has proceeded on a misconception that both Clauses (a) and (b) of the Second Schedule refer to gold and silver articles.
Clauses (a) and (b) of the Second Schedule are independent clauses and it will be wrong to read the idea contained in Clause (a) while interpreting Clause (b). Each one of the clauses in that schedule covers separate articles. Again the question for determination is as to whether the articles in question are essentially plated articles and not whether these are placed parts in them. The word 'plate' as described in the Concise Oxford Dictionary is as follows :
'Cover with plates of metal for protection etc.; cover (other metals') with thin coat of silver, gold, or tin; make a plate of (type) for printing.' In numerous articles there may be some covering of a metal in one or other of its component parts. That will not make it a plated article; such articles do not come within the mischief of Clause (b). Plating is not its predominant characteristic. Judging from that test, I am unable to conclude that a fountain pen is a plated article. No authorities have been shown to me in support of the contention that a fountain pen could be considered as a 'plated' article.
7. It was next urged on behalf of the appellants that the plaintiff's suit is hit by Section 78 of the Indian Railways Act. This objection had not been taken in the pleadings nor urged in the Courts below. It is contended that the parcel in question had been described as 'haberdashery' which according to the appellants meant 'miscellaneous articles of dress' etc. It is contended that it is now proved that the articles in question are fountain pens and the same could not be 'haberdashery.'' In view of this mis description, it is urged that trio plaintiff's suit is hit by Section 78 of the Indian Railways Act. Section 73 reads as follows :
'Notwithstanding anything in the foregoing provisions of this Chapter, a railway administration snail not be responsible for the loss, destruction or deterioration of any goods with respect to the description of which an 'account materially false' has been delivered under Sub-section (1) of Section 58 if the loss, destruction or deterioration is in any way brought 'about by the false account', nor in any case for an amount exceeding the value of the goods if such value were calculated in accordance with the description contained in the false account.'' (The underlining (here in ' ' marks--Ed) is mine).
8. This contention cannot be said to raise a pure question of law. Whether the description given is 'materially false' is a mixed question of law and fact. I do not know whether the word 'haberdashery' has any technical meaning in commercial parlance. Hence this contention is disallowed.
9. In the result, the appeal fails and the same is dismissed with costs.
10. Appeal dismissed.