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

On November 13, 1920 six bales of cloth were consigned from the Victoria Terminus Bombay to Gaya addressed to the firm Goya Earn Gouri Shanker. Four bales were delivered at Gay a on the 29th November 1920, but the other two bales were hot found; and ultimately the consignees instituted a put against the B.I. By. and G.I.P. Ry. for compensation for non-delivery of the goods. Their suit was decreed by the Additional Subordinate Judge of Gaya; but on appeal, the District Judge, generally supporting the findings of the Subordinate Judge op questions of fact, dismissed the suit for want of notice u/s 77 of the Railways Act, and also on the ground that the suit was barred by limitation under Article 30, Schedule 1 of the Limitation Act. The plaintiffs come up in second appeal to the High Court.

Learned Counsel for the appellants argues that a suit for non-delivery is governed by Article 31, Schedule 1, Limitation Act, citing the decision of the Division Bench of this Court in the case of Agent of the Bengal Nagpur Railway Co. Ltd. Vs. Hamir Mull Chagan Mull and Another, . That decision is in his favour; and we agree that this suit must be held to be governed by Article 31, not by Article 30. The period of limitation prescribed by the Article 31 is one year from the date on which the goods ought to have been delivered. The plaintiffs asserted in their plaint that the date on which the goods ought to have been delivered was the 13th of February 1921; and the evidence on this point was conflicting, the plaintiff''s witness Narmidh Das asserting that goods from Bombay would take 2� or three months to arrive at Gaya, which was denied by the defendants witness Probodh Chandra Day, shed clerk at Gaya railway station. The learned Subordinate Judge found that, the goods ought to have been delivered on the date given in the plaint; but the appellate Court came to no clear finding on this point. The learned District Judge remarked that he would have been disposed to accept three month as a reasonable period for delivery but regarding this suit as a suit for short, delivery ho held that the period of limitation ran from the date when the consignment was short delivered, applying Article 30 of the Schedule in the Limitation Act. In a snit for non delivery, where no portion of the consignment has been delivered, it is sometimes necessary to take evidence on the question of when the consignment ought to have been delivered, which must in any case be regarded as a question of fact.

The case of G.I.p. Ry. Co. v. Ganpat Rai [1911] 33 All. 544 was a case of this kind, where the consignment was totally lost; there the learned chief Justice of the Allahabad High Court and Mr Justice Banerjee summarily decided that goods dispatched from Bombay ought to have been delivered at Ghazipur within a fortnight or at the utmost within three weeks. It appears to us quite unreasonable to hold where the greater part of a consignment depatched from Bombay has been delivered at Gaya sixteen days later, that the rest of the consignment ought to have travelled at a pace slower than that of a bullock cart. We have given our best consideration to this question; and we are of opinion that where a great part of a consignment has been delivered on a certain day, there is ordinarily no necessity to enter into evidence on the question of when the balance of the consignment ought to have been delivered because the time when the consignment as a whole ought to have bean delivered is manifestly the time when the greater part of the consignment arrived at its destination.

We therefore consider that the date on which the goods ought to have been delivered is the 29th November 1920; and the plaintiffs'' suit is barred by, limitation under Article 31, Schedule of the Limitation Act. The result is that the decree of the lower Court must be affirmed; and the appeal will be dismissed with costs.

In this view the second question as to whether the suit fails for want of notice u/s 77 of the Railway Act does not arise. It see us to us that it is more than doubtful as to whether Section 77 an all applies to a case of non-delivery. There has been divergence of opinion this point. The majority of the Judges of this Court as well as of the other Courts have, however, held that even in a case of non-delivery Section 77 of the Railway Act applies and that the notice prescribed by that section must be served before a suit is permitted to be lodged. Most of the decisions seem to be based upon the assumption that a casa of non-delivery is cavered by the risk note and that the loss mentioned in the risk note is loss to the owner of the goods and not loss to the Railway Company, though some of the Judges have held that even if a case of non-delivery is not covered by the risk note, notice would be still necessary u/s 77 of the Railway Act.

So far as this Court is concerned, it may be said that the view has inclined towards holding that a case of non-delivery does not come under the risk note. The words in the risk note "loss, destruction or deterioration of goods delivered to be so carried" are the same as those in Section 77 and if a case of non-delivery is not covered by risk note, it would logically follow that it would not be governed by Section 77 of the Railways Act. Such was the view taken in E.I. Ry. v. Messrs Kali Charan Ram Prasad AIR 1922 Pat 106 , and in the recent Full Bench case of Puran Das Vs. East Indian Railway Co., .

A division bench of this Court has, however, held to the contrary and if the decision of this case depended upon this point, it would have been necessary to refer the case to the Full Bench; bat in view of the fact that the suit must be dismissed upon the ground that it was barred by limitation, reference to the Full Bench need not be made.