B.D. Agrawal, J.
1. In this second appeal the question raised is whether the defendant-appellant is entitled to the benefit of Section 77B Indian Railways Act for short 'Act'.
2. On April 10, 1968, Kailash Chand Jain -- a partner of the plaintiff-respondent firm, delivered two bars of silver to the railway administration at the Agra Fort Railway Station for being carried by the 84 Up Passenger Train to PDGR Bombay station and delivered to their commission agent, namely, M/s. Jain Brothers. The consignment was accepted by the railway administration and the Parcel Way Bill was issued to the consignor. Ordinarily the consignment ought to have reached the destination within two or three days. One of the bars of silver arrived at the Bombay Station, however, on June 21, 1968, and was delivered to the consignee. The other bar did not reach and it did not come to be delivered. The plaintiff gave notice under Section 78B of the Act on May 30, 1968; the notice under Section 80 Code of Civil Procedure was given on June 29, 1968. The suit was instituted on Sept. 25, 1968, for the recovery of a sum of Rs. 15,500/- as damages for the non-delivery of the goods,
3. In defence the contention raised, chiefly, was that Section 77B of the Act precludes the plaintiff from claiming damages since the plaintiff neither paid nor engaged to pay the required percentage on the value declared of the goods by way of compensation for the increased risk.
4. The trial Court dismissed the suit on Sept. 13, 1969. It was held that M/s. Jain Brothers were the commission agents for and on behalf of the plaintiff. The property continued to vest in the plaintiff and it was entitled to sue. The notices given by the plaintiff were found to be valid. The case is of loss within the meaning of Section 77B(1) and the plaintiff did not engage to pay the required percentage on the value declared with respect to the goods.
5. The decree of the trial Court was, however, reversed in appeal filed by the plaintiff. The lower appellate Court was of the view that the endorsement attributed to Kailash Chand Jain, the partner of the plaintiff' firm, of specifying that the plaintiff did not engage to pay the percentage required on the value of the goods is not made under his signature and, therefore, Section 77B does not avail the defendant. In the result, the decree of the trial Court was set aside and the suit decreed for the recovery of a sum of Rs. 15,292/- on Sept. 8, 1970.
6. Aggrieved, the defendant preferred this second appeal.
Section 77B of the Act reads as under : --
'77B(1) Notwithstanding anything contained in the provisions of this chapter, when any article mentioned in the Second Schedule are contained in any parcel or package delivered to a railway administration to be carried by railway and the value of such articles in the parcel or package exceeds five hundred rupees, the railway administration shall riot be responsible for the loss, destruction, damage 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 in writing or declared them in writing at the time of the delivery of the parcel or the package for carriage by railway, and, if so required by the administration, paid or engaged to pay in writing a percentage on the value so declared by way of compensation for the increased risk.
(2) When any parcel or package of which the value has been declared under Sub-section (1) has been lost, destroyed or damaged or has deteriorated the compensation recoverable in respect of such loss, destruction, damage or deterioration shall not exceed the value so declared.
(3) A railway administration may make it a condition of carrying a parcel or package declared to contain any article mentioned in the Second Schedule that a railway servant authorised in this behalf has been satisfied by examination or otherwise that the parcel or package actually contains the articles declared to be therein.
(4) The Central Government may, by notification in the Official Gazette, direct that any article mentioned in the Second Schedule may without being contained in any parcel or package, be delivered to a railway administration to be carried by railway and upon the issue of such notification, the provisions of this section shall apply in relation to such article, as they apply in relation to any article, mentioned in the Second Schedule and contained in any parcel or package.'
7. This corresponds to Section 75 of the Act, 1849, except that Sub-section (4) has been added by the Central (Amendment) Act, 1961. The contention for the appellant is that this provision exonerates the railway administration of liability in this case. Silver bar is undisputedly an excepted article mentioned as such in Second Schedule to the Act. The value thereof admittedly exceeds rupees five hundred. On December 7, 1961, the Central Government made a notification as contemplated under Sub-section (4) providing that gold and silver in bars or bricks may be delivered to a railway administration to be carried by railway, without being contained in any parcel or packet. At the time when the silver bar in question was consigned to the railway administration at the Agra Fort by PW Kailash Chand Jain -- the partner of the plaintiff-respondent firm on April 10, 1968, he admittedly declared in writing the value of the two silver bars as Rs. 34,000/- in the forwarding note. The contents are also specified as two unpacked silver bars. According to the case of the plaintiff-respondent itself, Kailash Chand Jain (PW) did not pay any percentage charge on the value for the increased risk as contemplated under Sub-section (1) of Section 77B. The plaintiff-respondent nowhere contends, moreover, and PW Kailash Chand Jain has not stated anywhere that he engaged to pay the said percentage charges.
8. The issue raised is whether the railway administration can be said to have 'required' the plaintiff-respondent within the meaning of Section 77B(1) to pay or engage to pay any percentage charge on the declared value for the increased risk. Theadministration submits that DW RadhaRaman Agrawal, the Senior Parcel Clerk,Agra Fort, directly asked PW Jain whetherhe would pay the additional percentagecharge, but the latter declined. The trialCourt has accepted this as correct; thetestimony of the Senior Parcel Clerk hasbeen believed by the trial Court on thepoint. The lower appellate Court sidetracked going into the question on thisaspect. This apart, the forwarding notewhich PW Jain had to fill necessarily whenhe consigned the silver bars in question tothe railway administration requires inspecific terms that the consignor shouldeither pay or engage to pay the additionalpercentage charge to cover the increasedrisk. Provision for the for warding note ismade in Section 72. 'Any person delivering to arailway administration any goods to becarried by railway shall execute theforwarding note in such form as may beprescribed by the railway administrationand approved by the Central Government.The form in the instant case is prescribedby the railway administration andapproved by the Central Government videExhibit A1. In the note the consignor hasto give such particulars in respect of thegoods delivered as may be required. Item 2of this forwarding note requiresdeclaration from the consignor in thefollowing form :--
'1 declare that each package contains piece is of a value of Rs. and engage/do not engage to pay the percentage charge on value for the increased risk, as required by the Administration.'
9. The foot note to this forwarding note recites that the attention of the sender or his agent is invited to the principal terms and conditions applying to the carriage of goods by railway which are set forth in the Railway's Goods and Coaching Tariffs and to the explanatory notes on the back to the forwarding note. At the back of the forwarding note there appears Note (2) which reads :
'Railways arc not responsible for any loss, destruction, damage or deterioration of a packing containing article(s) speci-piece of fled in the Second Schedule to the Indian Railways Act whose value exceeds Rs. 500/- per package or piece unless the contents of each package and value of excepted articles are declared at the time of booking and engagement entered into to pay the percentage charge oh value for increased risk. The declaration must be made in Clause (2) overleaf and the word 'engage' or the words 'do not engage' struck out as required.'
10. The forwarding note provided for statutorily under Section 72 thus clearly requires the consignor in respect of an article of special value enumerated in the Second Schedule to the Act not merely to declare the value thereof but also to specify in writing whether he has paid or engages to pay a percentage on the declared value by way of compensation for the increased risk. Attention to this requirement is drawn pointedly by note on the obverse side of the prescribed form and the Explanatory Note 2' quoted above is the express requirement incorporated by the railway administration in this behalf. The rates are laid in the Coaching Tariff; the general notice such as appearing in the forwarding note is in compliance to Section 77B (corresponding to Section 75 of the old Act) and upon a construction of this section it cannot be accepted that an individual demand must be made by the railway administration when a parcel containing the specified article of special value is tendered for carriage by railway. The notice required is pointedly brought to the attention of the consignor by the Second Explanatory Note in the forwarding note which has to be filled and completed by the consignor himself. This was also the view taken by a Division Bench in Uttam Singh Kala Singh v. Union of India, AIR 1971 Delhi 79 with which 1 am in respectful agreement. The lower appellate Court laid emphasis on arguing that the scoring of the words' and engage' in the forwarding note vide Exhibit Al does not bear the signature of P.W. Kailash Chand Jain though the words 'do not engage' are left intact while the words 'and engage' are scored. The Senior Parcel Clerk, examined before the trial Court upon whom it placed credence, deposed in unequivocal terms that the scoring was done by P.W. Jain in his immediate presence. The lower appellate Court has not assigned any cogent ground for departure made in the appreciation of oral evidence examined before the trial Court. The trial Court noticed also that P.W. Jain had on his own showing been in this business for at least three years preceding. He admitted that he had consigned such goods for carriage by railway earlier too and had filled in the forwarding notes in that connection. The attention of P.W. Jain was drawn specifically in cross-examination to the forwarding notes dated 27-3-68 and 28-3-68 filled in by him vide Exhibit A4/Exhibit A3. He attempted to evade the answer when questioned whether in those forwarding notes also he had not similarly scored out the words' and engage as in the instant case. Moreover, the lower appellate Court lost sight of the fact that even if it were assumed that P.W. Jain did not score out the words 'and engage' or that this scoring is not to be taken into consideration for want of his signature immediately underneath the same (though his signature does admittedly appear at a little distance in the forwarding note), it will come to this that the words 'and engage/do not engage' in the said forwarding note will both remain intact. This makes the whole thing meaningless because even in that event it would not follow that the consignor engaged to pay the required percentage. It will be said at the best in that case that he left the matter in lurch without specifying whether he engaged or did not engage to pay despite the fact that the railway administration does positively require him to indicate this option in the prescribed form.
11. It is next to be considered whether this is a case of 'loss' within the meaning of Section 77B(1) of the Act. Section 73 lays down the general responsibility of the railway administration as a carrier of goods for the loss, destruction, damage, deterioration or non-delivery in transit. This is specifically made subject to other provisions in the Act as is clear from the expression 'save as otherwise provided in this Act' with which Section 73 opens. Section 77B whittles down the general responsibility of the railway administration as a carrier with respect to articles of specific value. The grievance of the plaintiff-respondent is that the silver bar was not delivered to himself or the consignor. Sub-section (1) of Section 77B of the Act refers to the 'Loss, destruction, damage or deterioration of the parcel or package.' In view of the Central Government's notification made under Sub-section (4) already referred to above this provision shall apply in relation to notified articles in the manner as it applies to any other article specified in the second Schedule and contained in any parcel or package. The settled view is that non-delivery is the consequence of loss. The cause of action is furnished not by mere non-delivery but by the loss of the article concerned. In the leading case reported in Governor-General in Council v. Musaddi Lai, AIR 1961 SC 725 it was held (at p. 727) :--
'Failure to delivery is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression, 'loss, destruction or deterioration', what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner therof.'
12. This was endorsed with approval in the Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755. It is true that the expression non-delivery does not appear, as such, in Sub-section (1) of Section 77B though this does, find place in Section 73 and other allied provisions substituted by the Central (Amendment) Act XXXIX of 1961, The reason is apparent. Sub-section (1) of Section 77B does not accord any protection to the railway administration where the parcel or package containing the article or the article as such as, the case may be is shown to be retained with the railway administration. It is not open in other words to the railway administration to withhold the parcel or package or the article with itself and yet claim exoneration from liability. If the railway administration itself, as distinct from its servants or employees has wrongfully detained or misappropriated the article, the benefit of Section 77B cannot be availed. In the Union of India v. Mansukharam, AIR 1979 Guj 176 a learned single Judge following the decision of Ismail J. in Union of India v. Jetmall Sukanraj, AIR 1972 Mad 134 ruled that the bar against the liability of railway administration under Section 77B is absolute. But it does not deal with a case of non-delivery because the expression 'non-delivery' does not appear in Sub-section (1) though this finds place in other sections introduced by the Central Act XXXIX of 1961. With respect I am unable to agree with this interpretation. The 'loss' referred to in Sub-section (1) of Section 77B is loss of goods; it is loss both to the consignor or the consignee, as the case may be and the Railway administration. The non-delivery in the said case results directly from loss of the goods. In AIR 1972 Mad 134 (supra) also the learned Judge observed that when non-delivery can be correlated to the loss or destruction of goods it may be open to the railway administration to prove such loss or destruction and contend that it is such loss or destruction alone which has resulted in the non-delivery and, therefore, protection given to the railway administration under Section 77B of the Act will be available. Evidence in the case before us is clear and cogent as found by the trial Court, to the effect that the silver bar in question was lost not merely to the plaintiff-respondent but also to the railway administration. Both the Courts found that the theft thereof is not made out Be this due to misconduct or negligence of the railway staff the fact remains that the railway administration does not retain the article with itself and the same is lost to the defendant-appellant as a whole. The Senior Parcel Clerk testified in unequivocal terms that the article could not be traced, thereafter; the delay in the other silver bar reaching the destination occurred also due to enquries which commenced almost immediately upon the loss coming to notice on April 10, 1968. P.W. Kailash Chand Jain -- the only witness examined for the plaintiff-respondent is, inter alia, not in position to rebut the evidence in this behalf.
13. For the discussion made above I am clearly of the view that Section 77B of the Act avails the defendant-appellant in this case and, therefore, the defendant-appellant is absolved of liability in this behalf.
14. The appeal in consequence succeeds and is allowed. The judgment and decree of the lower appellate Court dated 8th Sept. 1970, are set aside and the decree of the trial Court restored. In the circumstances costs shall be borne by the parties throughout.