G.I.P. Ry. Co. vs Gopi Ram Gouri Sankar

Ross, J.—The respondents brought this suit for compensation for nondelivery of one out of four bales of cloth to the G.I.P. Ry. Co. at Bombay for delivery to them at Gaya on the E.I. Ry. The defence was that the goods were lost in transit and that the defendant companies were protected by Risk-Note B; and, further, that the suit was bad for want of notice u/s 77, Railways Act, within six months from the date of delivery of the goods to the defendants.

The Courts below dismissed the suit as against the E.I. Ry., and gave the plaintiffs a decree for part of their claim as against the G.I.P. Ry., holding, inter alia, that as this was a case of nondelivery where no loss was proved, Section 77 had no application. The case was remanded for a finding on the question of the service of notice u/s 77 and it has been found by the learned Subordinate Judge that there is no proof of service of notice beyond the allegation in the plaint which not having been traversed in the written statement must be accepted, namely, that notice was given to the agents of the defendant companies on 8th December 1921. The goods ware consigned on 11th April 1921, and three bales ware delivered on 19th May 1921. The suit was brought on 11th March 1922. Consequently if notice was required u/s 77, the notice was out of time; but if no notice was required then the suit was properly instituted within the period limited by law.

The question for decision, therefore, is whether in a suit for nondelivery notice has to be given u/s 77 of the Act. In E.I. Ry. v. Kali Charan Ram Prasad AIR 1922 Pat. 106 it was held by my brother Jwala Prasad that Section 77 requires notice only in a case of a claim for compensation for loss, destruction or deterioration of goods and does not apply to a suit based upon compensation on account of nondelivery of goods, as apart from loss, destruction or deterioration of the same. But in the B.N. Ry. Co. Ltd. v. Hamir Mull Ghagan Mull AIR 1925 Pat. 727 it was held by a Division Bench of this Court that non-delivery constitutes loss within the meaning of Section 77 and, therefore, service of notice under that section is essential in a suit for compensation for nondelivery. This decision has bean followed in other cases.

The learned advocate for the respondents contends, however, that this decision rests ultimately upon the view taken in G.I.P. Ry. Co. v. Jitan Ram AIR 1923 Pat. 285. to the effect that loss means loss to the owner and that as that view is no longer tenable since the decision of the Full Bench in Puran Das v. E.I. Ry. Co. AIR 1927 Pat. 234 the ground of the decision that notice is necessary in cases of nondelivery has gone. In an elaborate judgment in East Indian Railway Co. Vs. Jogpat Singh, , Page, J., held that the term ''loss'' as used in the risk-note and in Ch. VII, Railways Act, does not mean pecuniary loss to the owner of the goods, but means loss of goods by the Railway Company while in transit. And it has recently been decided by the Calcutta High Court in G.I.P. Ry. Co. Ltd. Vs. Jesraj Patwari and Others, by Rankin, C.J., and Mitter, J., that in suits for damages for nondelivery of a part of a consignment delivered under Risk-Note B, there is a necessity of proving that there has been in fact a loss of the part concerned and the initial burden of proving that is on the Railway Company. In Puran Das v. E.I. Ry., Das and Adami, JJ., agreed with the view of Mr. Justice Page, and as this view differed from the decision in G.I.P. Ry. v. Jitan Ram AIR 1923 Pat. 285, they referred the case to a Full Bench. It was found by the Full Bench [vide AIR 1927 Pat. 134 F.B.-Ed,] that on the pleadings the reference did not arise; but reliance is placed upon the judgment of my brother Jwala Prasad and in certain observations in the judgment of the learned Chief Justice. This decision of the Full Bench has since been considered along with other decisions of the Court in two cases by two Division Benches of this Court; in Nagendra Nath v. B. & N.W. Ry. Co. AIR 1928 Pat. 95 it was held that in a suit based on nondelivery the Railway Company must prove loss before they can claim the benefit of the risk-note; and in Tarachand Marwari v. B.N. Ry. Co. AIR 1928 Pat. 259 that decision was followed; and it must be taken that since the decision of the Full Bench the view in this Court has been that nondelivery does not constitute loss and therefore the decision in G.I.P. Ry. Co. v. Jitan Ram AIR 1923 Pat. 285 is not conclusive of the present question.

Now on the language of Section 77 a notice is only required in cases of claims for refund of an over-charge or for compensation for loss, destruction, or deterioration. If nondelivery is not coextensive with loss, it would seem to follow that notice is not required in a suit based on nondelivery; and obviously nondelivery includes much more than loss which is only one of several possible cases. Nondelivery may be due to misdelivery or to wilful detention by the Railway Company as well as to loss. As was pointed out by Page, J., in the case cited above the true view would seem to be that the goods may or may not be lost and that proof of nondelivery is by no means a conclusive evidence as to whether or not loss has occurred.

Indeed I go further and beg leave to state that on such evidence alone an inference could not reasonably be drawn that the goods had been lost.

It would seem to follow from this decision as well as from the language of the section itself that when nondelivery without more is pleaded no notice u/s 77 is required though it may turn out that the suit will fail for want of notice if it be established by the Railway Company that it is in fact a case of loss. A different view was taken by the Calcutta High Court in the Assam Bengal Ry. Co. Ltd. v. Radhika Mohan Nath AIR 1923 Cal. 397, Where it was held that in a suit based on nondelivery notice u/s 77 is required, though there the question whether notice would be necessary where the goods were wrongfully detained was left open. That decision seems to have proceeded on an interpretation of "loss" which is inconsistent with the later decisions.

In effect the question of notice seems to come back to the prior question of loss. If the Railway Company pleade want of notice they must show that this case of nondelivery was a case of loss. The position, therefore, on the merits and on the technical question of notice is precisely the same, viz., the defendant company must plead and prove loss before it can rely either on the risk-note or on want of notice.

The appeal is dismissed with costs including the costs of the first hearing and of the remand.

Jwala Prasad, J.

I agree.