UNION OF INDIA Vs. JAGATPAL DAROLIA

JUDGEMENT

(1.) IN the suit which is the subject-matter of this appeal the plaintiff alleged that a consignment of woollen fardis and handloom table cloths was booked by Messrs. Dasmall Baijnath from Amritsar to Jharia railway station for being delivered to the plaintiffs. The consignment arrived at Jharia station on or about the 18th November, 1950, and when plaintiff No. 2 went to take deli-very it was discovered that the consignment was in a torn condition and some of the articles from the consignment had been removed. The Parcel Clerk declined to give delivery of the consignment and referred the matter to the Claims INspector posted at Dhanbad. After some correspondence plaintiff No. 2 asked for delivery of the consignment in open condition, but the Claims INspector also refused to give delivery of the consignment and told plaintiff No. 2 that the matter would be referred to the higher authorities. Ultimately there was no delivery of the consignment to the plaintiffs who brought the present suit for realisation of damages from the defendant. The suit was contested on the ground that the package contained woollen fardis which are articles of special value and Section 75 of the Railways Act was a bar to the claim of the plaintiffs. It was also contended that the suit was barred under Article 30 of the INdian Limitation Act and the period taken in the correspondence between the plaintiffs and the railway authorities cannot be excluded in computing the period of limitation. The lower appellate court has held that the suit was not barred by limitation and that Section 75 of the INdian Railways Act has no application to this case and the plaintiffs are entitled to a decree for compensation from the defendant for the value of the consignment which was not delivered by the railway authorities.

(2.) IN support of this appeal two arguments were advanced by learned Counsel for the appellant. It was submitted in the first place that the 64 pieces of "woollen fardis" booked in the railway consignment were "shawls" within the meaning of item (m) of the Second Schedule of the INdian Railways Act and that as the plaintiffs had not complied with the requirement of Section 75 of the INdian Hallways Act they were not entitled to get a decree in the suit for compensation for the loss of the consignment. IN our opinion there is no merit in this argument. The lower appellate court has rightly held that the woollen fardis included in the consignment were not "shawls" within the meaning of item (m) of the Second Schedule of the INdian Railways Act. IN our opinion the point is covered by, a decision of this High Court in Dominion of INdia v. B. L. Butt, AIR 1957 Pat 328 where it was pointed out by a Division Bench that the word "shawls" as used in item (m) of the Second Schedule of the Railways Act meant Kashmere shawls of special value and not things of inferior quality as that of Alwans, Tushi or ordinary Chadars. The same view has been taken by a Division Bench of the Calcutta High Court in Sarat Chandra Bose v. Secy, of State ILK 39 Cal 1029 where their Lordships observed as follows: