JUDGMENT
Vasudevamurthy, J.
1. The plaintiff is a cloth merchant at Mysore; and his suit against the Mysore Railways for recovery of the value of articles consigned by him, for Interest & notice charges was dismissed with costs by the Munsiff of Mysore. That judgment was reversed by the Additional Subordinate Judge, Mysore, and the defendants have filed this second appeal.
2. It is admitted by the railways that a bundle of cloth was consigned on 12-3-1945 to the plaintiff from Chamarajanagar, that it was received at the Mysore city railway station and that it was stolen away from there & could not therefore be delivered to the plaintiff. Its value has also been found by both the lower Courts to be Rs. 1,407-1-0. The learned Munsiff was of the view that the plaintiff has not made out that the loss of the parcel was due to want of care or diligence on the part of the railway administration, but the learned Subordinate Judge did not agree with him and observed that, according to the evidence on the side of the defendants, the parcel, after it arrived at its destination station was allowed to lie on the platform and was subsequently found to be missing and he apparently considered that this might be enough to hold that there was such gross negligence as amounted to misconduct on the part of the employees of the Railways who were responsible for its safe custody.
3. D. W. 1 the Chief Parcel clerk, of the Railways, has deposed that the bundle was received at the Mysore city Railway station on 12-3-45 at 9-30 P. M, and as the parcel room was full with other parcels, this parcel was kept on the platform and when the plaintiff came to claim it it was found missing. There is no evidence that adequate watch was kept on the parcel which contained goods of considerable value, and leaving it on the public and open platform, certainly lends support to the plaintiff’s contention that the loss was due to lack of proper ca.re and diligence on the part of the Railway officials concerned. There was however no issue raised in this matter and apparently the railways did not seriously contend that there was no misconduct. The sole ground that has been taken in the anpeal memo here and which is now strongly pressed before us is that the articles contained in the consignment in question were “Ex-cepted articles” within the meaning of Section 59, Mysore Railways Act. Under that section when any articles mentioned in the schedule annexed to it are contained in any parcel or package delivered for carriage to a Railway Administration and the value of such articles in the parcel or package exceeds Rs. 100/- the Railway cannot beheld liable unless the contents of the package have been declared and a percentage paid or engaged to be paid on the value so declared by way of compensation for increased risk.
4. It is contended by the learned Counsel forthe appellants that the suit parcel contained articles coming within the description of clause (1) to the said schedule which runs as follows : “Silks in a manufactured or unmanufactured state and whether wrought up or not wrought up with other materials.” In the present case the package contained ouite a large number of sarees and konams and it is admitted that they were not made of pure silk but were a mixture of cotton: and silk. It is obviously a question of fact in each ca.se whether the articles fall within the description of one of the items of that schedule, and there can be no general rule in that behalf. It is argued for the appellants that Ex. B, the invoice sent by the person who sold the goods to the plaintiff, described the package as “Silk cloth parcel”. Such a description cannot be conclusive against the plaintiff. Moreover, if such an invoice stated that it was all cotton cloth surely the railways could not have felt themselves bound by such a description & they could still show that the articles were of silk. The lower Courts have relied mainly on the evidence of P. W. 3 and D. W. 3 in this matter. P. W. 2, a clerk of the merchant who sold the articles to the plaintiff and who supervised the packing of the goods, has sworn that the articles in the package were F, mixture of cotton and silk, the proportion of cotton to silk ranging from 80 to 85 per cent of the former to 15 to 20 per cent of the latter, and he has also given the value of the silk content of the articles in the parcel D. W. 3 the Commercial Inspector of the South Indian Railways, who made investigation in respect of the plaintiff’s claim on the railway, has deposed that he considered that the details given in Ex. I were correct, that the goods conveyed under Ex. B could not be either pure cotton or pure silk but were a mixture and that after enquiry he found that the parcel contained goods worth Rs. 1407-1-0 out. of which the value of silk alone was Rs 400/-and remaining was the value of cotton in the goods. On this evidence the learned Subordinate Judge has found that the silk content of the articles in the bundle was very much less both in quantity and value than the cotton content and that both in quantity and value it was only 30 per cent of these articles that were made up of silk and the rest of them cotton; and he was therefore satisfied that the silk content in the articles was not so much as to taring the said I articles within the meaning of the expression ‘silk’ in clause (1). The learned Munsiff was also of the view that the cost of the siik contents in the articles would be a little less than 50 per cent of the total cost of the bundle. We, have, there-fore, the concurrent finding of both the lower Courts that the value of the silk content in the articles was less than 50 per cent and that is a question of fact which cannot be interfered with in second appeal.
5. In a Similar case in — ‘Laxmidas Hira Chand v. G. I. P. Rly. Co.’, 4 Bom H C R 129(A), it was held that whether or not cotton fabrics bordered with silk, or having a portion of silk otherwise used in their manufacture arc ‘silks in a manufactured or unmanufactured state, wrought up or not wrought up with other materials’, is a question of fact to be decided on the evidence and not a question of law; and it was observed :
“The proper test for a Judge to apply in such cases, is to determine whether or not the value of the silk wrought up with other materials is mere than half the value of the fabric. If it be not, the fabric cannot be considered to be silk, within the meaning of the Act.’
In coming to that conclusion reliance is placed by their Lordships on a case reported in –‘Brunt v. Midland Railway Co., (1864) 33 LJ Ex. 187(B) and an earlier unreported decision of a single Judge Westropp J. of the Bombay High Court wherein it was held in a case where the articles concerned were dhoties with silk borders and some of them with gold in the borders, that the total value of each material was to be the chief point to bo ascertained in dealing with the question of the Railway’s liability. Couch C. J. with whom Westropp J. concurred was of the opinion that as a question of fact the articles before them were not silks as the value of the silk was not more than one half of the entire value. Whether a particular fabric is of silk or not would obviously depend only on some such test. If a cotton dhoti or sari has a small silk border it would not be proper to call it a silk dhoti or silk sari. A silk upper cloth which is usually made mainly of silk but in which invariably some cotton is also used either to give it the necessary weight or strength or feel or to keep down the overall price cannot surely be called a cotton fabric. Taking into account the nature, relative proportion and value of the cotton and silk contents of the articles which were in the suit parcel as found by the lower Courts, we are inclined to agree with the reasoning and conclusions arrived at in the Bombay case and consider that those artjcles were not silks within the meaning of clause (1) of Schedule IV. In (1864) 33 LJ Ex. 187 (B), three of the Judges treated a very similar matter as a question of fact to be dealt with by the Court sitting as a Jury.
6. In — ‘Saminadha v. South Indian Rly. Co.’, 6 Mad 420(C), Sir Charles Turner, Kt., C. J. and Muttusami Ayyar J., held that the term ‘silks in a manufactured state and whether wrought up or not wrought up with other materials’ used in Sen. II of the Indian Railways, Act, 1879, does not apply to all cases of goods in which silk may be introduced and that a cloth composed of silk and cotton thread, non-eighth being silk and seven eighths Cotton, the proportionate value of silk and cotton being one to four and a half, did not come within the meaning of the said term.
7. — ‘G. I. P. Railway Co. v. Changa Khan’, AIR 1916 Cal 554(D), is a further authority for the position that the question whether silks in a manufactured or unmanufactured state is to be treated as silk is a question of fact. In that case also, (1864) 33 LJ Ex. 187(B), as well as 4 Bom H. C. R. 129(A) and 6 Mad 420(C) are relied on. Their Lordships observe :
“We do not, and indeed we cannot, bind all Courts to follow the exact test which was adopted by the Madras Court in one case and by the Bombay Court in another. Each case must depend upon its own circumstances. Where a Court has adopted a fair test and where upon that test it has found that the article is silk within the meaning of the section, that is in our opinion a clear finding of fact and the Court cannot go behind it in second appeal.”
8. We are therefore of the opinion that the judgment of the learned Subordinate Judge is correct and must be confirmed. This appeal is dismissed with costs.
9. Appeal dismissed.