LAKSHMI BANGLE STORES Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) The plaintiff, a bangle seller of Amadalavalsa purchased glass bangles at Ferozabad under bills Exs. A-9 to A-27 for a sum of Rs. 56,837-04. He booked a wagon for consignment of the bangles from Ferozabad to Srikakulam under RR. No. 434461 and invoice No. 3/3-6-64. The forwarding note was Ex. B-l. On 22-6-1964 there was a collision of trains at Ganguti Station due according to the plaintiff, to the negligence of the railway servants. The wagon carrying the glass bangles was involved in the accident and some of the cases of bangles were broken. Later the bangles were transferred to another wagon by the railway authorities along with other commodities like bags of dhal, etc. The consignment reached Srikakulam on 25-7-1964 and was unloaded on 27-7-1964. The plaintiff took open assessment delivery of the consignment. More than half the bangles were damaged. In the Damage Certificate Ex. A-2 issued by the railway authorities the "Hijack" value of the bangles was mentioned as Rupees 56.837-04 and the value of the undamaged stock delivered to plaintiff was shown as Rs. 27,752-87. The plaintiff claimed that he was entitled to get Rs. 27,754-87 being the value of the damaged stock. He also claimed that he was entitled to get the cost of repacking the bundles and half the railway freight. After issuing notice under Section 80 C. P. C. the suit was filed on 4-9-1&67 to recover a sum of Rs. 32,860-87.

(2.) The railway administration filed a written statement contesting the suit it was claimed that the damage was not due to the negligence of the Railway servants, but was providential. It was pleaded that the value of the entire consignment had been declared by the consignor as Rs. 25,000 in the forwarding note and, therefore, it was not open to the plaintiff to claim that the- value of the consignment was Rs. 56,837-04. Since the plaintiff admitted that the value of the undamaged stock delivered to him was Rs. 27,752-87 nothing more was due to the plaintiff. It was also pleaded that the plaintiff not having complied with the provisions of Section 77-B of the Indian Railways Act the defendant was protected from liability. It was further pleaded that the damage was due to the defective packing and not due to the negligence of the railway servants. It was finally pleaded that the suit was barred by time. The learned Subordinate Judge held that the suit was not barred by time and that there was no failure to comply with the provisions of Section 77-B of the Indian Railways Act. He held that the damage to the bangles was due to the collision of trains and that the collision was due to the negligence of the railway servants. He held that the actual value of the consignment was Rs. 56,837-04 but that the plaintiff was precluded from claiming any sum by way of value of the damaged stock in view of the fact that he declared the entire value of the stock as Rs. 25,000 which was less than the admitted value of the undamaged stock delivered to him. He relied on the decision of Mack J. in Ohunilal v. Governor General in Council (AIR 1949 Mad 754) and the observations of the Patna High Court in Sarabji Dada Bai v. B. N. Rly. (AIR 1&36 Pat 393).

(3.) We may straightway say that the learned Subordinate Judge was in error in holding that the plaintiff was estopped from claiming the value of the damaged stock in view of the declaration made by him that the entire value of the consignment was only Rs. 25,000 though the actual value was Rs. 56,837-04. The learned Subordinate Judge himself observed that the plaintiff was under no obligation to mention the value of the consignment in the forwarding note as the value of each of the packages was less than Rs. 500. We may mention here that under Section 77-B of the Indian Railways Act when any articles mentioned in the II Schedule are contained in any parcel or package delivered to a railway administration to be carried by the railway and the value of such articles in the parcel or package exceeds Rs. 500 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 has declared the value and contents of the parcel or package at the "time of the delivery and has paid a percentage of the value so declared by way of compensation for the increased risk. Section 77-B (2) provides that where such a parcel or package 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. Though it was admitted that the value of each of the packages in the instant case was less than Rs. 500 it was argued on behalf of the railway administration that since an entire wagon had been booked and the value of all the packages consigned by the wagon was much more than Rs. 500, Section 77-B of the Indian Railways Act was attracted. We do not think we can accept this submission. The fact that the value of the entire, consignment is more than Rs. 500 is of no relevance. What is relevant under Section 77-B is that the value of each of the packages should be more than Rs. 500. In Governor General in Council v. Sakalchand Batdhutmal, ((1954) 67 Mad LW 807) Krishnaswami Naidu, 3, observed :