Chatterjea and Walmsley, JJ.
1. This appeal arises out of a suit brought by the plaintiffs respondents for recovery of damages for the loss of 6 packages of matka silk-thread which were booked as luggage by the plaintiff No. 2 (who was the agent of the plaintiff No. 1) for conveyance by a steamer by the defendant Company from Maldah to Kasimbazar. It has been found that the packages were destroyed by fire owing to the negligence of the defendants. The Court of first instance gave a decree to the plaintiff No. 1 for Rs. 1784-15-3, that being the price of the articles lost. On appeal, that decree was affirmed and the defendant Company has appealed to this Court.
2. It has been contended on behalf of the appellants, first, that the plaintiff not having disclosed the fact that the luggage contained matka silk of the value of more than Rs. 100 upon which the Company could charge a higher rate under Sections 3 and 4 of the Common Carriers Act (Act III of 1865), the defendant was not liable to pay any damages for the loss; and, secondly, that there was no contract to carry any merchandise, the defendant having undertaken to carry luggage only.
3. As regards the first contention, the liability of the defendant Company is to be determined according to the provisions of the Common Carriers Act (Act III of 1865). Section 3 of that Act provides that 'no common carrier shall be liable for the loss of or damage to property delivered to him to be carried exceeding in value, one hundred rupees and of the description contained in the schedule to this Act, unless the person delivering such property to be carried, or some person duly authorised in that behalf, shall have expressly declared to such carrier or his agent the value and description thereof;' and Section 4 provides that 'every such carrier may require payment for the risk undertaken in carrying property exceeding in value one hundred rupees and of the description aforesaid, at such rate of charge as he may fix,' matka silk-thread comes within the description of properties contained in the schedule to the Act which mentions 'silk in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials.' It is argued on behalf of the appellants that had the plaintiff disclosed that the packages contained silk of the value exceeding one hundred rupees, the Company would have been entitled to levy a higher rate of charge under Section 4 of the Act, and the said fact not having been disclosed the Company were not liable for the loss of, or damage to the property. But Section 8 of the Act provides that 'notwithstanding anything hereinbefore contained every common carrier shall be liable to the owner for loss of, or damage to, any property delivered to such carrier to be carried where such loss or damage shall have arisen from the negligence or criminal act of the carrier or any of his agents or servants.' Reading Sections 3 and 4 with Section 8, it appears that although a common carrier is not liable for the loss of or damage to property of certain description above one hundred rupees in value, unless the value and description thereof are expressly declared by the person delivering them to be carried and although the carrier is entitled to charge a higher rate for such properties, he is liable for the loss of or damage to such property if such loss or damage arises from the negligence or a criminal act of the carrier or any of his agents or servants. Had the matka silk-thread been lost otherwise than through the negligence of the Company, they would not have been liable for the loss, as the value and description of the property had not been declared as provided by Section 3, and as there was no payment of a special rate as provided by Section 4. But as the property was lost owing to the negligence of the Company, we are of opinion that they are liable for the loss, although the value and description of the property were not declared and a higher charge was not paid, for them, and that in such a case Sections 3 and 4 of Act III of 1865 do not afford any protection to the carrier.
4. The learned Counsel for the appellant relied upon the cases of Cahill v. The London and North-Western Railway Co. (1862) 13 C.B.N.S. 818 The Great Northern Railway Company v. Shephard (1852) 8 Exch. 30 David Keays v. Belfast Railway Company (1861) H.L. Cas. 556 and Shaik Roheemulla v. Palmer (1864) Coryton's Rep. 133 in support of his second contention that where property is delivered to a carrier as luggage, but which contains merchandise only, there is no contract to carry, and that consequently he is not liable for the loss of such property. But these cases (with the exception of the last) were decided with reference to the liability of the railway companies under the Common Law of England or under Acts which do not apply to this country. In the case of Velayat Hossein v. Bengal and North- Western Railway Co. (1909) I.L.R. 36 Calc. 819 a passenger took a journey on the railway and booked as his luggage a package containing merchandise (96 pieces of durries or carpet) and paid a certain sum as extra charges in respect of the excess weight of the package beyond what was allowed as free luggage. The package was lost and consequently not delivered at the end of his- journey. He, therefore, sued the railway Company for damages caused by its loss, and it was held that the case was governed by Section 72 of the Indian Railways Act (IX of 1890) and Sections 151 and 152 and 161 of the Indian Contract Act referred to therein, and that the railway Company was liable for the loss of the package. The above English cases were cited in argument on behalf of the railway Company, but the learned Judge observed: 'A variety of English cases have been referred to, according to which it is contended that the defendants cannot be fixed with liability in this case; but all such cases have been decided on a consideration of the position of the railways as carriers or under Acts that do not apply here.'
5. The liability of the defendant Company in the present case is to be determined not according to any common law but according to the provisions of Act III of 1865. In the present case, certain property (six packages of matka silk) were delivered for carriage by the defendant Company, and it is found that the packages wore lost owing to the negligence of their servants. The defendants are therefore liable under the provisions of Section 8 of the Act. The Act does not make any distinction between 'personal luggage' and goods or merchandise and merely speaks of property delivered. There is no doubt that six packages of matka silk were 'property delivered,' within the meaning of the Act, although they were passed off as luggage and not declared to be merchandise. They were paid for as luggage excepting for 30 seers allowed as free luggage. It does not appear that there are different rates for luggage and goods in the defendant Company's rules, and even if there were, we think it would not make any difference, because the liability for loss in consequence of negligence had reference to 'property delivered' which includes luggage as well as goods.
6. In the case of Shaik Roheemulla v. Palmer (1864) Coryton's Rep. 133 (affirming the decision reported at page 24 of the said reports), it was no doubt held that misdescription of the nature of goods entrusted to a common carrier disentitles the sender to recover for their loss although the goods would not be subject to any extra rates had they been properly described. But the case was decided before the Indian Carrier's Act III of 1865 was passed. On the other hand in the case of Narang Rai Agarwalla v. Rivers Steam Navigation Company, Limited (1903) S.A. No. 2310 (unreported) referred to in Narang Rai Agarwalla v. Rivers Steam Navigation Company, Limited (1907) I.L.R. 34 Calc. 419 the defendant Company claimed exemption from liability for loss of the endi silk under Section 4 of the Carriers Act, as there was no payment of the special rate in respect of the endi silk which fell under the description of excepted articles and which the plaintiffs delivered to the defendant to be carried. The learned Judges referring to the Common Law liability of common carriers observed 'the liability however may be limited as to loss of valuable articles unless the sender has declared their value and paid a higher rate for their carriage. But even then he is liable for loss occasioned by his negligence or criminal act, as no Court will exonerate a bailee under such circumstances. These rules have been adopted in India by Act III of 1865 and Section 8 of the Act lays down a rule as to a common carrier's liability in all cases of negligence or criminal act.' In that case although the fact that the property delivered to be carried was not disclosed to be silk, and although no special rate was paid for it, it was held that the defendant would be liable, if the loss was occasioned by the negligence of the defendant, and the case was remanded to the lower Court for a finding upon the point.
7. It was argued that the onus of proving negligence was upon the plaintiff and the case of Sheobarut Ram v. Bengal and North-Western Railway Co. (1912) 16 C.W.N. 766 was relied on. That case, however, was under the Railways Act and the goods were consigned under a risk-note under which the railway Company were absolved from all liability for loss of or damage to the goods, subject to the proviso that the Company would be liable for loss due to wilful negligence on the part of their servants. Section 9 of the Carriers Act clearly shows that the onus of proving negligence is not upon the plaintiff. Moreover, in this, case the plaintiff gave positive evidence of negligence which has been apparently believed by the Courts below.
8. We are accordingly of opinion that the Courts below came to a right conclusion, and that the appeal must be dismissed. Having regard, however, to the circumstance of the case, we think that each party should bear his own costs in all Courts.