JUDGMENT Tudball and Chamier, JJ.
1. This appeal arises out of a suit brought by the plaintiff respondent under the following circumstances : The plaintiff travelled on the 3rd of July, 1912, as a passenger from Howrah to Khurja by the up Umballa express train on the East Indian Railway. He had three parcels of luggage : two bundles and a steel trunk. These were weighed and delivered by him to the Railway administration and placed in the luggage van. Only two bundles were delivered at the end of his journey. The steel trunk was lost. He therefore sued the Railway for Rs. 461-8-0 the value of the box and its contents plus Rs. 40 damages, total Rs. 501. At the time the luggage was booked he did not declare the nature of the contents. According to his plaint the trunk contained besides ordinary clothing some silk articles the value of which comes to over Rs. 300 and also some silver articles of the value of about Rs. 60. These are all articles which are mentioned in the second schedule of the Railways Act. The Railway Company pleaded that as the plaintiff had not declared these articles, it, the company, was not liable in view of the terms of Section 75 of the Railways Act. The courts below did not accept this plea and decreed the suit in favour of the plaintiff. The Railway Company appeals and the same point is raised before us. The point is one which is covered by the rulings to be found in the Punjab Record of 1897 No. 56 and Punjab Record of 1907 No. 73. The court below has relied on a decision of the Calcutta High Court in Velayat Hossein v. Bengal and North-Western Railway Co. (1909) I.L.R. 36 Calc. 819. In this case no question of the applicability of Section 75 arose. The articles which were in dispute therein were durries which do not come within the second schedule of the Act. The Railway Company had sought to free itself of its liability in that case by pleading a certain rule made by itself which the court held to be in conflict with the terms of Section 72 of the Act, and therefore of no force. However even in that Judgment there is a remark which is in favour of the appellant before us. At page 823 the Judgment runs as follows : "A rule made under the Act is not a provision of the Act, and the words have an obvious reference to Section 73 relating to the carriage of animals, and to Section 75 relating to the carriage of articles of special value, which are expressly framed to place certain restrictions on the full operation of Section 74," It is clearly an expression of opinion that Section 74 of the Act is governed by Section 75. The argument on behalf of the respondent is that Section 74 is the only section in the Act which governs the case of passenger's luggage, and that Section 75 has nothing to do with luggage whatsoever. In our opinion there is no force in this contention. The steel trunk was no less a package or parcel because it was booked as luggage. The language of Section 75 is general. It provides "When any articles mentioned in the second schedule are contained in any parcel or package delivered to a Railway administration for carriage by railway and the value of such articles in the parcel or package exceeds one hundred rupees, the Railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared or declared them at the time of the delivery of the parcel or package for carriage by railway, &c." In the present case the plaintiff delivered a package to the Railway administration for carriage by railway. That package contained articles mentioned in the second schedule of a value of over Rs. 100. The facts of the present case are clearly and distinctly within the meaning of the language of Section 75 which is a section of general application to all classes of goods. In our opinion the appeal is well founded. The plaintiff having failed to declare the articles the value of which he seeks to recover, the Railway Company is not liable for. the loss of the trunk and its contents. We allow the appeal and set aside the decrees of the courts below, The plaintiffs suit will stand dismissed with costs in all courts.