JUGALKISHOR PANNALAL DARAK Vs. UNION OF INDIA

JUDGEMENT

(1.) Jugalkishor Darak, a trader of Rahuri in Ahmednagar District travelled on 20th May, 1975 from Bombay to Rahuri by Bombay-Pune-Manmad Passenger. As the Railways do not allow heavy parcels of luggage in the passenger compartments, Darak had to load some bales in brake van for which he obtained a luggage ticket bearing No. 904141. Jugalkishor arrived at Rahuri, the brake van was opened and while taking delivery of one of the bales, he found that it was in a tampered condition. He asked for an open delivery which having been given cloth weighing 33 Kgs. was found missing when compared with the bijak. Jugalkishor filed Regular Civil Suit No. 601 of 1975 in the Court of Civil Judge, Junior Division, Ahmednagar for price of goods short-delivered but the railway administration disclaimed liability to pay compensation as the plaintiff has failed to comply with provisions of section 77-B of the Indian Railway Act ("the Act"). The trial Judge negatived the defence and decreed the suit which judgement was set aside by the first Appellate Court giving rise to the present appeal.

(2.) Section 77-B of the Act reads--- (1) Notwithstanding anything contained in the provisions of this Chapter, when any articles mentioned in the Second Schedule are contained in any parcel or package delivered to a railway administration to be carried by railway and the value of such articles in the parcel or package exceeds five hundred rupees, the railway administration shall not be responsible for the loss, destruction, damage 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 the package for carriage by railway, and if so required by the administration, paid or engaged to pay in writing 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, destroyed, or damaged or has deteriorated the compensation recoverable in respect of such loss, destruction, damage or deterioration shall not exceed the value so declared . (3) A railway administration may make it a condition of carrying a parcel or package declared to contain any article mentioned in the Second Schedule that a railway servant authorised in this behalf has been satisfied by examination or otherwise that the parcel or package actually contains the article declared to be therein. (4) The Central Government may, by notification in the Official Gazette, direct that any article mentioned in the Second Schedule may, without being contained in any parcel or package, be delivered to a railway administration to be carried by railway and upon the issue of such notification, the provisions of this section shall apply in relation to such article as they apply in relation to any article mentioned in the Second Schedule and contained in any parcel or package." The Second Schedule referred to in the section contains a list of a number of articles like gold, silver, plated articles etc. and the last entry in the Schedule- "Terylene, Terycot, Terywool and Nylon and their fabrics." was added by the Central Government by Notification dated 9th January, 1971 in the Official Gazette in exercise of the powers conferred on them in section 147-A of the Act.

(3.) At the outset, we can clear the decks for inquiry into the main issue by disposing of a peripheral question of fact. There was some controversy as to whether the missing cloth was of the description falling in the above entry but the Appeal Court after scrutinizing the entries in the Bijak concluded that it was so as the Bijak shows that the rate of cloth was ranging between Rs. 62/- and Rs. 82/- per meter. I find that this finding of facts does not deserve to be disturbed.