G.N. Das, J.
1. This rule was obtained by the petitioner Krishna Chandra Guin. It is directed against the decision of Mr. D. N. Chakladar, Munsif, 3rd Court, Midnapore, exercising Small Cause Court powers, whereby he dismissed the petitioner's suit for recovery of a sum of Rupees 152, alleged to be the price of goods consigned for carriage by the B. N. Railway administration represented by the defendant opposite party, and not delivered to the consignee.
2. The facts of the case are that Joseph Herber & Co., Calcutta self-consigned a package for carriage by the B. N. Railway from Esplanade, Calcutta, to Midnapore. In the forwarding note, the consignor described the package as containing Gramophone Records and declared the value to be Rs. 99 only. The plaintiff petitioner purchased the goods from the consignor and took an open delivery of the package at Midnapore Railway Station. A part of the contents of the goods was not delivered by the B. N. Railway. After service of the requisite notices, the petitioner filed this suit for recovery of a sum of Rs. 152 being the price of goods not delivered to him. The defendant denied liability; the material defence with which we are now concerned, is a plea under Section 75, Railways Act.
3. The trial Judge gave effect to this plea and dismissed the suit. The plaintiff has moved this Court in revision.
4. It is not disputed in this Court that the articles contained in the package come within item (r) of Schedule 2 of the Act and are excepted articles.
5. Mr. Roy Choudhury for the petitioner pressed only one point, viz., that although the value of the package exceeded Rs. 100 and it came within Section 75(1) of the Act, nevertheless he was entitled to recover the sum of Rupees 99, the value declared by him. In support of his contention, he relied on Section 75(2) of the Act and the decision of Lodge J., in the case of Governor-General in Council v. Tarak Nath De 0043/1946 : AIR1947Cal182 .
6. Mr. Sen, the learned Senior Government Advocate for the opposite party, contended that Section 75(1) is clear on the point and the disability to recover anything is not controlled by Section 75(2). He referred us to an unreported decision of Chakravartti J., in the case of Governor-General in Council v. Basanta Kumar Goldar, Civil Rule 293 of 1948 decided on 9th July 1946.
7. The aforesaid decisions are clearly in conflict and we have to resolve the same.
8. Section 75 of the Act as it then stood, read 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 (one) 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 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.'
9. The liability of the Railway administration is that of a bailee under Section 72 of the Act; the measure of such liability is the damage sustained by the claimant. The amount of such damage is the value of the goods lost, destroyed, or deteriorated in transit. The value declared under Section 75(1) is not the measure of such loss, destruction or deterioration. The burden of proving the true value is upon the claimant and the burden rests on him inspite of the declaration made by the consignor and not objected to by the railway administration; this appears from Section 75(2) of the Act.
10. Section 75 of the Act is an exemption provision. Clauses (1) and (2) of the section are both intended to limit the liability of the railway administration, as would appear from the opening words 'Further provisions with respect to the liability of a railway administration as a carrier of articles of special value'. The object of the section is to protect the railway administration. In cases of excepted articles, the section compels the consignor to declare the value if it exceeds the limit of Rs. 100. The declaration is intended to put the officers of the administration on their guard. The administration is also entitled to charge a certain percentage of the value in such cases. The words of Section 75(1) are plain and admit of no qualification. If the package contains excepted goods, and the intrinsic value exceeds the statutory limit, the railway administration cannot be held responsible for the loss, destruction or deterioration of the package, unless the value and contents are declared. The value to be declared is the true value.
11. Section 75(2) in terms does not entitle the consignor or consignee to get the declared value. It places a maximum limit, beyond which the claimant cannot recover whatever the true value may be. Section 75(2) is intended to apply to cases where a declaration is called for. An unnecessary declaration is not contemplated by the section. In cases of over-valuation of excepted articles above the statutory limit, the claimant gets the true value; the declaration does not help him. In cases of under-valuation of excepted articles above the statutory limit, a limited disability is imposed by Section 75(2), viz., that the claimant can only recover up to the declared amount. In the latter case, his claim for the difference between the declared value and the true value is only negatived, but the whole of his claim is not disallowed.
12. For the above reasons, we disagree with the view taken by Lodge J., and approve of the opinion expressed by Chakravartti J.
13. We, therefore, overrule the contention urged on behalf of the petitioner.
14. The Rule is accordingly discharged with costs; hearing-fee being assessed at two gold mohurs.