JUDGMENT : V.V. Vaze, J. 1. Jugalkishor Darak, a trader of Rahuri in Ahmadnagar District travelled on 20th May 1975 from Bombay V.T. to Rahuri by Bombay-Pune-Manmad Passengar. As the railways do not allow heavy parcels of luggage in the passenger compartments, Darak had to load some bales in the brake van for which he obtained a luggage ticket bearing No. 904141. Jugalkishor arrived at Rahuri, the brake van was opened and while taking delivery of one of the bales, he found that it was in a tampered condition. He asked for an open delivery which having been given cloth weighing 33 Kgs. was found missing when compared with the bijak. Jugalkishor filed Regular Civil Suit No. 601 of 1976 in the Court of Civil Judge, Junior Division, Ahmednagar for price of goods short-delivered but the railway administration disclaimed liability to pay compensation as the plaintiff had failed to comply with provisions of Section 77B of the Indian Railways Act (the Act"). The trial Judge negatived the defence and decreed the suit which judgment was set aside by the first Appellate Court giving rise to the present appeal. 2. Section 77B of the Act reads - "(1) Notwithstanding anything contained in the provisions of this Chapter, when any articles 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 not 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. (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 article 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." The Second Schedule referred to in the section contains a list of a number of articles like gold, silver, plated articles etc. and the last entry in the Schedule - "Terylene, Terycot, Terywool and Nylon and their fabrics." was added by the Central Government by Notification dt. 9th Jan 1971 in the official gazette in exercise of the powers conferred on them by Section 147A of the Act. 3. At the outset, we can clear the docks for inquiry into the main issue by disposing of a peripheral question of fact. There was some controversy as to whether the missing cloth was of the description falling in the above entry but the Appeal Court after scrutinizing the entries in the Bijak concluded that it was so as the Bijak shows that the rate of cloth was ranging between Rs. 62/- and Rs. 82/- per meter. 1 find that this finding of facts does not deserve to be disturbed. 4. Mr. Shah, the learned counsel for the appellant urged at the bar that the expression used in Section 77B, viz.- "loss, destruction, damage or deterioration of the parcel" differs from the expression- "loss, destruction, damage, deterioration or non-delivery of goods" contained in Sub-section (1) of Section 77 which charges the railway administration with liability to pay damages. 4. Mr. Shah, the learned counsel for the appellant urged at the bar that the expression used in Section 77B, viz.- "loss, destruction, damage or deterioration of the parcel" differs from the expression- "loss, destruction, damage, deterioration or non-delivery of goods" contained in Sub-section (1) of Section 77 which charges the railway administration with liability to pay damages. The omission of the word ''non-delivery" from the text of Sub-section (1) to Section 77B -- submits counsel --would be deemed to be a deliberate one and hence the railway administration would not be able to take shelter under the provisions of Sub-section (1) of Section 77B for the simple reason that the present case is one of "non-delivery". The open delivery report shows that in all four bales gunny covered and packed, were unloaded out of which one bale was loose, slack and in a resewn state. When the railway official opened the bales he found 33 Kgs. of goods were short. 5. The word "lion-delivery" would take its meaning from the context in which it is used. It could mean neglect, failure or refusal to deliver goods on the part of a carrier, vendor, bailee. (Black's Law Dictionary, 5th Edition, page 949). On the facts of the present case one cannot say it was a case of non-delivery, at best it could be one of short-delivery to the extent of 33 Kgs. I am supported in this view by the House of Lords' judgment in Great Western Railway Co. v. Wills, 1917 AC 148 wherein a consignment of carcasses of frozen mutton was delivered to the railway company for carriage upon the terms of contract signed by the consignor which provided that the carrier would be relieved from "all liability for loss, damage, mis-delivery, delay or retention" unless arising from the wilful misconduct of their servant but not from any liability they might otherwise incur in the case of "non-delivery of any package or consignment fully and properly addressed". When the consignment arrived at its destination a few of the carcasses were missing. Dismissing the claim for damages by the owner, it was held that non-delivery of a consignment means non-delivery of the consignment as a whole, as contracted with short-delivery (Lord Shaw of Dunformlino dissenting). When the consignment arrived at its destination a few of the carcasses were missing. Dismissing the claim for damages by the owner, it was held that non-delivery of a consignment means non-delivery of the consignment as a whole, as contracted with short-delivery (Lord Shaw of Dunformlino dissenting). The judgment of the Court of Appeal was reversed but not without reservations as is apparent from the speech of Viscount Haldane in which he observed- "My Lords, it is after hesitation that I have arrived at a conclusion as to the construction of this consignment note, and that hesitation has not been the less because of the eminence and experience of learned judges in the Courts below who have taken a different view." 6. A case similar to the one under consideration arose way back in 1803 in Shaw v. Great Western Rly. Co., (1894) 1 QB 373. The plaintiff had delivered to the Railway Company a portmanteau containing, among other things, jewellery and trinkets of the agreed value 250. At the time of delivery jewellery and trinkets were found to be missing. The consignment note contained the following condition : -- "The Great Western Railway Company give public notice that they hold themselves entirely relieved from loss of or damage done to all goods, matters, or things described in the Act of Wn. 4, C. 68, unless the particular articles be declared, and an assurance over and above the carriage be paid as compensation for the risk incurred." As the consignor had not made a declaration as required by the Carriers Act, the railways were absolved from any liability. The preamble to the U. K. Carriers Act 1830 (11 Geo 4 and 1 Will 4 c 68) reads that it is an Act for the more effectual protection of Common carriers for Hire against the loss of or injury to parcels or packages delivered to them for conveyance or custody, the value and contents of which shall not be declared to them by the owners thereof. Section 1 of the Act provides that the common carriers shall not be liable for loss of certain goods enumerated in that section above the value of 10 unless they are delivered as such and an increased charge accepted. Section 1 of the Act provides that the common carriers shall not be liable for loss of certain goods enumerated in that section above the value of 10 unless they are delivered as such and an increased charge accepted. Same appears to be the content of the Section 77B of the Railways Act with the difference that the Parliament, in its wisdom thought it better to put the list of the articles which are to be declared as a separate Schedule rather than putting it in the text of the Act itself as has been done in Section 1 of the U. K. Carriers Act, 1830. 7. I am fortified in the view that I am taking by the Scheme of the Act which under Sub-section (1) of Section 77 equates the responsibilities of the railway administration with that of a bailee under Sections 151, 152 and 161 of the Contract Act, 1872. The care to be taken by a bailee u/s 161 of the Contract Act is the same as one which a man of ordinary prudence would, under similar circumstances, take of his own goods of the similar bulk quality and value as the goods bailed. With a view to ensure that the administration knows the quality and value of certain expensive articles, Sub-section (1) of Section 77B obligates the consignor to declare the value thereof and "pay a percentage of the value so declared by way of compensation for the increased risk". The word "insure" does not appear in Section 77B but is used in the caption of the Second Schedule which reads- "See Section 77B. Articles to be declared and insured". Once the concept of insurance is incorporated in a contract with a carrier, the consignor is bound to treat the carrier with unberrima fides and tell him everything which may be supposed to affect his judgment. By reason of the principles of uberrima fides the party insured is under a duty to disclose any material alteration in the risk which comes to his notice at any time up to the conclusion of the contract. Such being the essence of a contract of insurance, the liability of the railway administration u/s 77(1) gets avoided on their showing that the other party to the insurance contract did not act uberrima fides. 8. Such being the essence of a contract of insurance, the liability of the railway administration u/s 77(1) gets avoided on their showing that the other party to the insurance contract did not act uberrima fides. 8. The Indian Railways acts as carriers of goods through their network criss-crossing the entire country and is reputed to be moving goods at the most economical tariff as compared with the one charged by road transporters. Financial management requires that the tariff has to be kept low in competition with the road carriers, at the same time discouraging consignors from obtaining an unduly low rate for carriage of expensive articles. With that end in view, Section 778(1) obliges the consignor to make a declaration if the goods consigned fall in any of the categories enumerated in the Schedule. In the present case 33 Kgs. of terry cloth was lost and the price thereof is only Rs. 6,000/-. It could as well be that instead of plain terry cloth the consignor could have put expensive and exclusive Paithani Saris or for that matter currency notes which for obvious reasons he could not send through normal banking channels. It is with a view to discouraging such practices that the section was enacted. A consignor may take his chance by not taking out insurance but therein he runs a risk. In the case of insurance of motor vehicles, the insurer insists on a higher premium to cover the risk of riots and civil commotions. A car owner may choose not to pay additional premium to cover these risks because he is convinced that the city in which he is living is free from civil disturbances and commotions. But therein he takes the risk that if the motor car is destroyed or damaged not by ordinary theft or mischief but by civil disturbance and commotion, the insurer will not pay the amount insured. So was the case with Jugalkishor, the appellant. He took the risk of not insuring the goods and saved the additional charges. Being an experienced trader commuting by train, he found that such a risk could be said to have been well taken but unfortunately in this particular consignment the calculation went awry. 9. As adumbrated above, I have based the conclusion that short-delivery is not tantamount to non-delivery on the judgment in Wills' case 1917 AC 148 (supra). Being an experienced trader commuting by train, he found that such a risk could be said to have been well taken but unfortunately in this particular consignment the calculation went awry. 9. As adumbrated above, I have based the conclusion that short-delivery is not tantamount to non-delivery on the judgment in Wills' case 1917 AC 148 (supra). That judgment is by a divided Court with a strong dissent by Lord Shaw. With a view to avoiding multiplicity of litigation on this often arising point of short delivery, it is suggested that Railway Board may make the position clear by adding a definition of the word "short-delivery" in the Railways Act which I believe is under periodic law-reform revision by the Board. 10. The appeal fails and is dismissed, but in the circumstances parties shall bear their respective costs.