1. This is a rule granted on the Bengal North Western Company to show cause why a judgment and decree of the Sub-Judge of Patna should not be set aside under the following circumstances. The petitioner took a journey on the Bengal North Western Railway for which he took two third class Railway tickets. At the same time he delivered a package to the servants of the Railway Company to be taken as passenger's luggage, and paid a certain sum as extra charges in respect of the excess weight of the package beyond what was allowed free of charge. The package contained merchandise which it is not suggested could be considered as luggage. It was not delivered to the petitioner at the end of his journey and ho sued before the Sub-Judge acting in his Small Cause Court jurisdiction, for damages caused by its loss. The Judge dismissed the suit holding that the case was governed by Rule No. 76 of the Company's General Rules. This is as follows : ''The term 'luggage' will include only wearing apparel and effects required for the personal use of passengers. Persons tendering amongst their luggage articles not properly classible as such do so at their risk.' The petitioner contends that this rule does not absolve the Railway Company from their liabilities under the Indian Railways Act of 1890. Section 72 of that Act provides that '(1) the responsibility of a Railway Administration for the loss of goods delivered to the administration, to be carried by Railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and l61 of the Contract Act.' The second sub-section provides that an agreement purporting to limit that responsibility is void unless it is in writing signed by the person sending or delivering, the goods, and is in a form approved by the Government of India. The third subsection enacts that nothing in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section denned, of a Railway administration.'
2. If by force of the above enactment the above-mentioned provisions of the Contract Act apply to this case, the liability of the defendants in the suit cannot be questioned. Bat Section 72 of the Railways Act is 'subject to the other provisions of this Act,' and it is contended on behalf of the Railway Company that the section is accordingly subject to a rule duly made under Section 47 of the Railways Act, and it is not denied that Rule No. 76 was made. By para. (2) of this section the Company can make a rule consistent with this Act' for the purpose of ' regulating the carriage of' passenger's ''luggage.' Does this rule absolve the Company from this liability under Section 72? The question seems to us to admit of no answer but an unhesitating negative. A very definite enactment would be necessary to give the Company power to repeal a provision of the Act, particularly so general a one as that contained in Section 72, by a rule; and in this case the rule has to be 'consistent' with the Act, an expression which is singularly inapplicable to a rule that repeals a part of it. Then it does not appear that the words in Section 72, whereby its operation is made subject to the other provisions of this Act' apply at all to rules under Section 47. A rule made under the Act is not a provision of the Act, and the words have an obvious reference to Section 73 relating to the carriage of animals, and Section 75 relating to the carriage of articles of special value, which are expressly framed to place certain restrictions on the full operation of Section 74. Moreover, the provisions of Sub-section (2) of Section 72 have not been complied with in this case.
3. 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. The law here has been carefully simplified by the exclusion of the operation of the common law as to carriers and the Carriers Act, 1865, to cases of loss of goods, and this case is consequently governed by Section 72 of the Railways Act and the sections of the Contract Act there referred to, and by them alone.
4. This rule is, accordingly, made absolute, the decree of the lower Court is set aside. We have no evidence before us on which to assess the damage caused to the petitioner by the loss of his goods. We, therefore, remit this case to the Sub-Judge to be retried by him in accordance with the law that we have laid down.
5. The petitioner is entitled to his costs on this rule, which we assess at 5 gold mohurs.