1. This appeal arises out of a suit in which . the plaintiff claimed Rs. 1,00Q, the value of the contents of a box, which he had delivered to the defendant Railway Company for carriage from Katgodam to Kasganj City Station. It appears that at the time of booking the box, the plaintiff made a representation to an officer of the Company that the box contained articles of the value of about Rs. 1,000 and he wished that special care should be taken to prevent the box or its contents from being injured by rain. He was asked the nature of the contents and he showed a list of the contents. The defendants Railway Company contend that they are relieved from all the liability by virtue of the provision's of Section 75 of the Indian Railways Act; IX of 1890, and Clause 26 of the bye-laws of the defendant Company. Section 75 of the Railways Actis 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. 100, 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 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.
2. When any parcel or package, of which the value has been declared under sub-section (1), has been lost or destroyed or has deteriorated, the compensation recoverable in respect of such, loss, destruction or deterioration shall not exceed the value so declared and the burden of proving the value so declared to have been the true value shall, notwithstanding anything in the declaration, lie on the person claiming the compensation.
3. A. Railway administration may make it a condition of carrying a parcel declared to contain any article mentioned in the second schedule that a Railway servant authorized in this behalf has been satisfied by examination or otherwise that the parcel actually contains the articles declared to be therein.' Clause 26 of the bye-laws is as follows:The Railway Company is not responsible for the loss, destruction or deterioration of any luggage or property belonging to or in charge of a passenger unless a Railway servant has booked and given a receipt therefor'. Then follows an enumeration of the articles. The bye-law then proceeds: When the value of such articles exceeds Rs. 100, unless the value and nature of such articles or the parcel or package, containing the same, shall have been declared by the sender, and an insurance rate or compensation for increased risk over and above the Railway charge for carriage shall have been paid to and accepted by some person duly authorized to receive the same on behalf of the Company, and who had satisfied himself by examination or otherwise that the parcel actually contains the articles declared to be therein.' So far as Section 75 of the the Railways Act is concerned, it is admitted that the officials of the defendant Company never made any demand on the plaintiff to pay any percentage over and above the ordinary Railway charge for carriage of the goods. It is contended on behalf of the appellants Company that notwithstanding that no such demand was made, they are protected by Section 75, because- the declaration that was made by the plaintiff was not made with a view to insurance, and reliance is placed on the case of the Great Indian Peninsular Railway v. Rai Seth Chand Mull 19 B. 165. We may point out at once that in this decision the provisions of a different Act were being construed. Section 11 of Act IV of 1879, although a corresponding section to Section 75, differs in an important particular. It has no provision requiring the Railway company to demand the percentage and it expressly provides that the carrier is not liable for loss, unless not only is-a declaration made bat the increased charge or an engagement to pay such charge has actually been paid or entered into by the owner of goods and accepted by the Railway servant who must be specially authorized in that behalf. In that case, reliance was placed on the decision in the case of Robinson v. Great Western Railway Company 34 L.J.C.P. (N.S.) 234. A, reference to this last mentioned case shows that the Court was referring to an entirely different set of circumstances. There the plaintiff was suing the Railway Company for refusing to carry his horse. The Railway Company refused to carry the horse because they knew it was of a greater value than 50. The plaintiff, so far from relying on any declaration made by him of the value of the horse, expressly stated that he never intended to make any declaration at all as to the value. The plaintiff in that case was insisting that the Railway Company could not refuse to carry his horse even though it were valued for more than 50 and that he was not ready and willing to pay the insurance. In our opinion, as found by the lower Court, the declaration made by the plaintiff was a sufficient declaration within the meaning of Section 75, and as the Railway Company did not require him to pay or engage to pay a percentage on the value of the contents of the box, the defendants Railway Company are not protected by the provisions of Section 75. The next point is whether the defendants are protected by the provisions of Clause 26 of the bye-laws to which we have already referred. When the goods were booked, a receipt was handed to the plaintiff which contains in a note at the foot the conditions on which the luggage is carried (see the notice on the back of the ticket, the time bills and the general rules and regulations of the Company). A number of conditions are mentioned on the back. No. 3 is as follows: 'The Railways, over which luggage is carried, are not in an way responsible for loss of or injury to any of the articles mentioned in the second Schedule of the Indian Railways Act, 1890, except as provided for in Section 75 of that Act and all luggage is carried on the terms and conditions prescribed in the said Act,' It will be seen at once that this condition 'expressly alleges that the contract between the parties is as provided by Section 75 and we have already held that under the circumstances of the present case, Section 55 is no defence. The .appellants, however, argued that a reference on the face of the receipt to time bills and the general rules of the Company fastens the plaintiff with the conditions in accordance with Section 26 of the bye-laws. This contention is in itself most unreasonable, having regard to Clause 3 endorsed on the receipt. As to Clause 26 of the bye-laws, it seems to be nothing more than an interpretation placed by the Railway Company on Section 75 most favourable to themselves. It omits all that portion of Section 75 which provides that a demand is necessary before the owner of goods is liable to pay extra percentage. Clause 26 is more in accordance with the law prior to the Act of 1890. So far as the bye-laws purport to render unnecessary the making of demand by the Railway Company from the owner of the goods they are, in our opinion, ultra vires. The bye-laws cannot for a moment be considered as amounting to a demand and, in our opinion, the reference to the bye-laws on the face of the receipt in no way affects the plaintiff under the circumstances of the present case. We, accordingly, dismiss the appeal with costs.