S.R. Tendolkar JUDGMENT
M.C. Chagla, C.J.
1. This appeal arises out of a judgment of Shah J- by which he dismissed the plaintiff's suit. It appeared that the plaintiff consigned four silver bars to self from the Victoria Terminus Station. Bombay, to Ballia which is situated on the Oudh Tirhut Railway. The records of the Oudh Railway show that these bars reached Ballia and the records further show that they were delivered to a person who signed his name as Yogendranath in the parcel delivery book maintained by that railway. The plaintiffs had sent the two railway receipts, under which these bars were despatched, to the Allahabad Bank at Benaras with instructions to deliver the railway receipts to one Yogendranath Ravindranath against payment of the amount for which 'hundis' were drawn. Yogendranath did not make the payment and the Allahabad Bank returned the railway receipts to the plaintiffs in Bombay. ' When the plaintiff made inquiries of the railway authorities as to the bars, he was informed that they had been delivered to one Yogendranath. Thereupon, having served the statutory notice under Section 80, Civil P. C., the plaintiff filed this suit claiming a sum of Rs. 20,496-15-6 as damages for non-delivery of these four silver bars.
2. Now, before consigning these bars the plaintiff had signed a risk note in form 'X', and the question that arises for our consideration is, what is the liability of the railway administration under that risk note, and in order to determine that liability we have in the first instance to consider the effect of Sections 72 and 75, Indian Railways Act. Section 72 defines the responsibility of a railway administration, for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway, and that responsibility is in all respects the same as that of a bailee under Sections 151, 152 and 161, Contract Act. Sub-section (2) of section 72 renders any agreement which limits the responsibility of the railway administration defined in Sub-section(1) as void. There is an exception to this Sub-section & that exception is that if there is an agreement in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and is otherwise in a form approved by the Central Government, then an agreement to limit the responsibility may be given effect to. Then section 75 is a statutory limitation upon the responsibility of the railway administration under Section 72 (1), and that section provides that when there are articles mentioned in the second schedule which are contained in any parcel or package and the value of such articles exceeds Rs. 300, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package. But there is an exception to this limitation of the liability of the railway administration, and the exception is that if the person who sends or delivers the parcel or package containing the articles causes its value and contents to be declared and further if on being required by the railway administration pays a percentage on the value so declared by way of compensation for increased risk, then the responsibility of the railway administration would continue to be the same as under Section 72 (1).
3. Now, in this particular case the silver bars which were consigned by the plaintiff are articles which are mentioned in the second schedule. The facts established in the Court below show that these silver bars w........