P. S. Kailasam, J.
1. The Union of India owning the South Eastern Railway, represented by the General Manager, Calcutta, is the. appellant before us. The respondent filed the suit in the City Civil Court, Madras, for the recovery of a sum of Rs. 3,268-5-4 being the value of goods entrusted to the Railways for carriage and not delivered, to him. The case of the plaintiff was that on 1st August, 1955, the plaintiff consigned one case containing perfumes, nibs, pencils and other items of stationery of the value of Rs. 3,861-2-0 from Madras to Howrah by passenger train. The consignment was accepted by the Southern Railway to be carried at Railways' risk. The goods arrived at Howrah on or about 12th August, 1955. When the plaintiff went to take delivery of the goods, he found two planks of the wooden case broken. He demanded open delivery which was accordingly given. It was found that the goods mentioned in the schedule to the plaint of the value of Rs. 3,068-5-4 were short. A certificate of shortage was given. Thereupon the plaintiff laid the claim.
2. Various defences were raised by the defendant. We are not concerned with all of them, except the question whether the appellant - Railways are entitled to claim immunity under Section 75 of the Indian Railways Act (IX of 1890), in that the articles that fell under the second Schedule to the Act were not declared by the plaintiff when the parcel was despatched by the Railway.
3. The trial Court found that Section 75 of the Act did not apply to the facts of the case and that therefore the Railway was not entitled to protection. According to the trial Judge the Railway had not succeeded in proving that the missing articles had been lost and that therefore they could not claim protection under Section 75 of the Act.
4. On appeal by the Railway, the lower Appellate Court, held, on the facts of the case, that the articles missing had been lost within the meaning of Section 75 of the Act, and that the Railway was entitled to protection under Section 75 of the Act on account of the non-declaration of the value of the goods which admittedly came under the Second Schedule. In this view, it dismissed the suit.
5. The plaintiff took up the matter in second appeal (S.A. No. 1931 of 1963). The learned Judge held that the Railway could seek protection only with regard to the goods that were required to be declared by the plaintiff under the Second Schedule, but were not so declared, and that the consignor was entitled to claim compensation in respect of the short-delivery of the goods which were not required to be declared and insured under the Second Schedule.
6. The present Letters Patent Appeal is filed by the Railway questioning the view of the learned Judge that the protection of the Railway was confined only to the goods that were required to be declared under the Second Schedule and not to the goods that were not required to be so declared.
7. Before We consider the relevant pro-visions, we may observe that it is common ground that a deal wood box containing perfumes and stationery was despatched by the plaintiff from Madras to Howrah. It is also admitted that so far as the scents are concerned, they have to be declared and in sured under the Second Schedule. The plaintiff did not declare the scents under the Second Schedule and take an insurance. When the deal wood box was delivered at Calcutta it was found that the perfumes and articles worth about Rs. 3,268-54 were missing.
8. The despatch of the goods and their delivery at Calcutta were effected before the Amending Act (XXXIX of 1961) came into force. The present case is, therefore, governed by the provisions of the Railways Act (IX of 1890). Section 72 of the Act provided that the responsibility of the Railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by Railway shall, subject to the other provisions of the Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act (IX of 1872). Thus it is clear that the Railway was responsible as a bailee for the loss, destruction or deterioration of the goods delivered to it. Section 75 provided:
(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 three hundred rupees, 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 an the value so declared by way of compensation for increased risk.
9. Before this section could be applied and the Railway could seek protection, it must be proved that certain articles which were covered by the second Schedule and the value of which exceeded three hundred rupees were sent in a parcel or package. There is no dispute that perfumes, one of the articles mention-ed in the Second Schedule and whose value was admittedly more than three hundred rupees was not declared and were sent for carriage by the Railway. The learned Counsel for the plaintiff would contend that, even though the articles mentioned in the Second Schedule, over the value of three hundred rupees, were sent in a parcel or package, the liability of the Railway continued, so long as there was no total loss of the parcel or package and that, in any case, the protection of the Railway was confined only to the articles mentioned in the Second Schedule and not to the other articles which were not covered by the Second Schedule.
10. The wording of the Section 75 is that, 'when any article in any parcel or package is lost, destroyed or deteriorated, the Railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package.' (Italics ours). It may be noted that a clear distinction is drawn between articles ' and 'parcel' or 'package'. The section contemplates articles being sent in a package; i.e. articles packed in a dealwood box or other container. When the articles required to be declared under the Second Schedule are not properly declared, then the protection that is afforded is for the loss, destruction or deterioration of the parcel or package. The protection is not confined only to the articles that were required to be declared; the protection covered the entire parcel or package. In this view, the plaintiff could not claim any compensation regarding the articles that were not required to be declared under the Second Schedule. The protection of the Railway extended to the whole of the parcel or package. This was also the view taken by a Bench of the Bombay High Court in Pundlik Udaji Jadhav v. S. M. Railway Company I.L.R. (1909) Bom. 703 : 3 I.C. 964, where the Bench held that the protection given by Section 75 of the Act extended to the whole parcel in which silk goods such, as were mentioned in the Second Schedule were contained, whether the rest of the parcel was composed of articles mentioned in the Second Schedule or not.. The learned Judges observed:
There appears from the words of the section which draw a distinction between the articles mentioned in the Schedule and the parcel or package in which they are contained and provides that the Railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package.
11. In Great Indian Peninsular Railway v. Sham Manohar I.L.R. (1912) All. 432, the Court held that the section clearly showed that the, protection afforded by it extended not only to the articles containing tissue and lace (which ought to have been insured), but also to all the other articles contained in the parcels in which the articles first mentioned were placed. The decision of the Bombay High Court in Pundlik Udaji Jadhav v. S. M. Railway Company I.L.R. (1909) Bom. 703 : 3 I.C. 964, was followed.
12. In East Indian Railway Company v. Changa Khan (1915) 28 I.C. 245, a Bench of the Calcutta High Court, following Pundlik Udaji Jadhav v. S.M. Railway Company I.L.R. (1909) Bom. 703 : 3 I.C. 964, held that, when a parcel containing goods which were required to be declared as well as goods which were not required to be so declared, was lost, the company was not responsible for any loss, whether it be of goods which were required to be declared or goods which need not have been declared.
With respect, we are in agreement with the view expressed in the decisions referred to above.
13. The other question that was raised was that the loss, destruction or deterioration contemplated by the section should be of the entire parcel or package. Strong reliance was placed on the wording of the Section, that the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package (italicised ours). Relying on the use of the word ' the ', it was contended that the loss, destruction or deterioration must be of the entire parcel or package which contained the articles which were required to be declared and insured under Section 75 of the Act. In the context, however, we feel that the loss, destruction or deterioration contemplated in the section of the parcel or package might be either partial or total, so far as the parcel or package was concerned. If we are to construe the section as meaning that the loss should be of the entire parcel or package, it would lead to strange results for, if the package contained, say hundred articles, and if the Railway was able to deliver ninety-nine articles the Railway would not be entitled to protection, but, if the Railway was not able to trace the entire parcel or package, it would be entitled to protection. We do not think that the Legislature intended any such result. Further, we are supported in our view by a decision of a Bench of this Court in Eagle Star Insurance Company v.Moolchand (1965) 2 M.L.J. 460, where, dealing with the contention that Section 75 of the Act afforded protection to the Railway only in the case of a total loss of the package, the learned Judges observed:
The whole purpose of Section 75 is that the Railway should be informed of the special value and therefore of the additional liability the Railway will have to undertake in carrying such goods and in consideration of the additional risk a higher charge is required to be paid. That being the purpose, it will be defeating it, if the risk of the Railway arose only for the entire packet, in the sense that the entire goods had been lost and not merely a part of the goods. In our view Sub-sections (1) and (2) of Section 75 will cover also partial loss of goods contained in any parcel of package of the specified type.
14. On a considerations of the section, we are satisfied that the protection afforded thereunder would cover even a partial loss of the parcel or package. In this view, we are unable to agree with the conclusion arrived at by the learned Judge.
15. Before we conclude, we would refer to a decision of a single Judg of this Court in Union of India owning the Eastern Railway by its General Manager, Calcutta v. Jetmall Sukanraj : AIR1972Mad134 . Relying on this decision, the learned Counsel for the plaintiff contended that the claim was only for non-delivery of goods and that, so far as non-delivery was concerned, the protection given to the Railway for loss, destruction or deterioration was not available. That decision is not relevant for our purpose, because it dealt with the provisions under the Amended Act XXXIX of 1961, where the relevant provisions have been recast. Under Section 73 of the Amended Act, while the Railway is made responsible for any loss, destruction, damage or deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, the protection to the railway in cases where the goods required to be declared under the Second Schedule have not been declared is restricted only to the loss, destruction, damage or deterioration of the parcel or package, the protection not having been given to non-delivery of goods in transit. As the Railway can claim protection only under Section 77-B, it will have to establish that the goods contained in the parcel or package were lost, destroyed, damaged or deteriorated. If the Railway does not come within the protection afforded by Section 77-B, the claim for compensation cannot be resisted. The question whether the Railway would be liable for ' non-delivery of goods, in transit' and whether the goods were lost, destroyed, damaged or deteriorated, would depend upon the facts of the case. It may be that in respect of non-delivery in transit, the Railway would not be entitled to protection under Section 77-B, but non-delivery may be due to loss, destruction, damage or deterioration of the parcel or package, in which case the protection under Section 77-B, would be available. We are not, however, pursuing this matter, as it does not arise in the present case.
16. In the result, the Letters Patent Appeal is allowed, but, under the circumstances of the case, without costs.