EAST INDIAN RAILWAY COMPANY Vs. DAYABHAI VANMALIDAS

JUDGEMENT

(1.) This is an appeal from the decree of the Assistant Judge of Ahmedabad confirming the decree passed against the original first defendant by the First Class Sub-ordinate Judge.

(2.) The plaintiff sued the East Indian Railway Company and the Bombay Baroda and Central India Railway Company to recover Rs. 877-11-7 the value of a bale of goods known as Malidas of German make which was consigned in October 1915 by the plaintiff's agent from Howrah to Ahmedabad, and lost in transit. The first defendant company, relying on the fact that the plaintiff in his letter of the 23rd December 1915 described the goods in the bale as 170 pieces Shawls, contended that they came within the excepted articles referred to in Section 75 of Act IX of 1890 and as the consignor had failed to describe the nature of the goods and pay the proper rate for them, the company was not liable.

(3.) The evidence shows that the goods were described as Malidas in the plaintiff's account books, and that each piece was worth Rs. 5-5-0. The Subordinate Judge, relying on the decision in Sarat Chandra Bose V/s. Secretary of State for India (1912) I.L.R. 39 Cal. 1029, held that the term Shawls in the Second Schedule to the Indian Railways Act did not apply to these cheap goods which were not even manufactured when the Act of 1854 was passed, and so Section 75 did not apply. The term "Shawls" in the Schedule was meant to apply to valuable Shawls from Kashmir and other places. Accordingly the suit was decreed against the first defendant company and dismissed as against the second defendant company but without costs. In appeal the Assistant Judge said: The accounts of plaintiff and his agent show that the goods consigned were Malidas and not Shawls. The goods do not fall under Section 75, Schedule II. There is ample other evidence to support the same conclusion. The construction of the law is not favourable to defendant according to decided cases considering the price and the quality of goods.