BHARAT ELECTRICAL STORES Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners were the plaintiffs in a suit in the Small Cause Court, where they claimed Rs. 415 from the Railways on account of short delivery of goods, which had been consigned on the 18th May, 1961. They had asked for open delivery, and when the delivery was made on the 22nd May, 1961, some part of the consignment were found missing, and, thereafter, the petitioners served notice under Section 75 of the Indian Railways Act as well as under Section 80 of the Code of Civil Procedure and instituted a suit for recovery of the amount. In defence, it was pleaded that there was no proper service of notice and the suit was barred by limitation and the Railway administration was not liable for the loss of the goods under Section 75 of the Railways Act, because the articles consigned came within the description of articles mentioned in the Second Schedule of the Indian Railways Act, 1890.

(2.) The trial Court held that the notice was properly served and the claim of the Plaintiffs was true; but the suit was dismissed, because, in its view the consignment contained articles of porcelain and siren articles answered the description under (k) in the Second Schedule of the Act. Under Section 75 (i) of the Indian Railways Act,

(3.) There is also another way to look at the thing. The predominant feature of a switch, of which a part is porcelain, cannot be taken to be porcelain. A switch is predominantly a switch, and the upper portion, which works as a switch, is the predominant feature of that article. Taking a broad and common sense meaning of a switch of that nature (of which the base is out of porcelain), no one can think that it is an article of porcelain or china. In Dominion of India v. Eversharp Agency, (S) AIR 1955 Bom 98, Chagla, C. J. came to consider about Eversharp fountain pens, of which nibs, clips and caps were made of gold. The question was whether that article could be covered by Second Schedule (a) which states 'gold and silver, coined or uncoined, manufactured or unmanufactured'. It was held that the fountain pen consisted not only of these component parts, such as cap, clip and nib, but also the bakelite portions of it, and, on the top of that, a great deal of labour, designing, skill and art went to the manufacture of that article. Predominantly, a fountain pen cannot be said to be of gold, manufactured or unmanufactured. In that view, that article was ruled out of the Second Schedule of the Railways Act, and the railway administration was held liable to pay compensation for the loss of such articles during the transit, and the provisions of Section 75 were not applicable to that. Similarly, in firm Kidar Nath, Raj Narain v. E. I. Rly, Co., ILR 45 All 453 : (AIR 1923 All 538 (2)), wax pearls, containing a thin glass covering, were held not to be articles of glass and, therefore, outside Section 75 of the Act.