1. This is an application in revision by a film styled the firm of Kidar Nath-Raj Narain from a decree of the Small Cause Court Judge of Agra, dismissing their claim for damages against the East Indian Railway Company.
2. The case for the plaintiff firm was that they bought some articles at Calcutta through their agent, who consigned three boxes to them at Agra. One of the boxes was lost in transit, and hence the claim for the price of the goods contained in that box. The defence of the Railway Company was that as the consignor had been a Risk Note they were not liable for the loss. It was further pleaded that the goods consigned to Agra were glass beads which came under the excepted articles, mentioned in the Second Schedule of the Railway Act under Clause (d). The learned Judge of the Small Cause Court hold that the lost goods fell under Clause (d); and the consignor having chosen to give the Risk-Note X, the Railway Company was not liable; The claim was accordingly dismissed. In revision the contention for the plaintiff firm is that the lost goods do not fall under Clause (k) of the Second Schedule of the Railway Act. If they do not fall under the said clause, the giving of the Risk Note X by the consignor does not exonerate the Railway Company from liability. The Clause (k) mentions the articles which are described as 'excepted articles '. They are pearls, jewellery and all articles made of glass, china or marble.
3. The lost goods, though described in the Risk Note given by the consignor as glass beads, are really what are called in the vernacular as momi motis, that is, wax pearls.
4. It is contended on behalf of the Railway Company that the wax pearls would not fall under Clause (a) of the Second Schedule but they would come under Clause (k) because the covering of the pearl is of thin glass. Some of the wax pearls were produced in the Court below and are on the record. On examining them it appears that the major portion of the constitution of the wax pearls is wax and there is only a thin covering of glass over the wax. I do not think that these wax pearls can properly be described as articles made of glass. In a similar case where the question was whether an article was of pure silk or manufactured silk, the Madras High Court held that where a manufactured article contained only 1-8th of the silk and 7-8th of cotton the article could not be said to be made of manufactured silk vide Saminadha Mudali v. South Indian Railway Co. 6 M. 420 : 2 Ind. Dec. (N.S.) 572. But it is, however, contended on behalf of the Railway Company, that as the consignor has given the Risk Note X, the Company is not liable. A perusal of the Risk Note X shows that it relates to the excepted articles mentioned in Schedule II of the Railways Act. If the article in respect of which the Risk Note X was given was not one of the excepted articles, the mere giving of the Risk. Note X would not take, away the liability of the Railway Company. I, therefore, hold that the Railway Company is liable for the price of the lost goods. The application is allowed. The decree of the Court below is set aside, and the claim of the plaintiff firm, is decreed for Rs. 250. Costs in proportion to success and failure are allowed to parties.