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Judgment
Punnayya, J.—On 18.12.1967 consignment of certain agricultural machinery was booked at Faridabad Railway Station to be delivered to the Plaintiffs at Secunderabad. The goods reached Secunderabad Railway Station on 14.1.1968. The Plaintiffs approached the railway station on 22.5.1968, i.e. four months after the arrival of the goods. The railway authorities and the Plaintiffs went to the storehouse. But they found the goods missing. The Plaintiffs, therefore, filed the suit O.S. No. 325 of 1971 in the Court of the Third Additional Judge, City Civil Court, Secunderabad, for recovery of Rs. 7,900/- (7896) 11 ps. giving the details of the claim as follows:
(1)
Value of the Goods:
Rs. 5,718.30 ps.
(2)
Towards sales tax paid:
193.12. ps.
(3)
Towards freight charges:
170.00 ps.
(4)
Wharfage charges:
714.00 ps.
(5)
Loss of profit:
1000.69 ps.
(6)
Notice charges:
100.00 ps.
The Defendants-railway administration denied their liability. They contend that it is the duty of the Plaintiffs to take delivery of the goods soon after their arrival at Secunderabad. When they failed to take delivery of the goods immediately after their arrival and when they approached the railway authorities four months after the arrival of the goods, they are not liable, if the goods are found missing. They, therefore, contend that the claim of the Plaintiffs is unsustainable as the loss was due to their own negligence. They also contend that the suit is barred by limitation.
The admitted facts are: The first Defendant railway received the goods on 18.12.1967. They reached the Secunderabad Railway Station on 14.1.1968 and they were unloaded there. The Plaintiffs did not take delivery of the goods either on 14.1.1968 or immediately after that date. But they approached the railway authorities only on 22.5.1968. Then the Plaintiffs were taken to storehouse but they found the goods missing. The Plaintiffs find fault with the railway administration for the loss of the goods and make a claim of Rs. 7,900. 11 ps.
The trial Court, i.e. the learned Additional Judge accepted the Plaintiffs contention on the ground that the goods were unloaded by the railways at Secunderabad on 14.1.1968 and it was the duty of the railways to guard the goods of the Plaintiffs and it is due to the negligence of the railways the goods were found missing and the goods were lost while they were in the custody of the railways and thus the loss of the consignment was due to the negligence and misconduct of the first Defendant. The learned Judge ultimately decreed the suit to the extent of Rs. 6,731. 11 ps. with interest at 6% per annum from the date of the suit till the date of realisation. He did not give his decision with reference to the provisions of Section 77 of the Railways Act.
Aggrieved with the judgment and decree of the learned Additional Judge, the Defendants preferred appeal C.C.C.A. No. 25 of 1977 in this Court.
Our learned brother Jeevan Reddy, J. did not agree with the findings of the trial Court. The learned single Judge adverted to the provisions of Sub-section (2) of Section 77 and took the view that after the expiry of the period of seven days after the termination of transit, the railway administration is statutorily released from any liability for the loss or non-delivery of goods. The learned single Judge did not accept the contention that the railways have got the responsibility to keep the goods in safe custody even after the expiry of seven days unless the railways follow the procedure prescribed by Section 56.
Mr. C. Sitaramayya the Learned Counsel for the Appellants, contends that the learned single Judge was not at all correct in holding that the procedure prescribed by Section 56 need not be followed. He vehemently contends that the railways are bound to follow the procedure u/s 56 of the Act before they can disclaim any responsibility for the goods. He also contends, that if the railways do not follow the procedure laid down u/s 56 of the Railways Act after expiry of the period prescribed by Section 77(2) of the Railways Act the railway authorities are liable for the loss of goods.
We would like to examine the scope and effect of the provisions of Section 77(1) and (2) of the Railways Act and also the provisions of Section 56 of the Railways Act.
Section 77 of the Railways Act deals with the responsibility of the railway administration after the termination of transit. Section 77(1) provides that railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Contract Act, for the loss, destruction, damage, deterioration or non-delivery of goods carried by railways within a period of seven days after termination of transit.
It is therefore, clear that Sub-section (1) of Section 77 insists on the railway administration to take as much care as that of a bailee under Sections 151, 152 and 161 of the Contract Act till a period of seven days after the termination of transit.
Sub-section (2) of Section 77 provides that the railway administration shall not be responsible, in any case for the loss, destruction, damage, deterioration or non-delivery of goods carried by the railway arising after the expiry of the period of seven days after the termination of transit.
Thus Sub-section (2) of Section 77 clearly absolves the railway administration of any responsibility after the expiry of the period of seven days after the termination of the transit if loss, destruction, damage, deterioration or non-delivery is occasioned.
Thus there is the difference with regard to the responsibility of the railways under Sub-section (1) and Sub-section (2) of Section 77 of the Railways Act. The Legislature provides subtle but a marked distinction in the responsibility of the railways in the case of loss etc. or non-delivery of the goods for a week under Sub-section (1) and after a week under Sub-section (2) of Section 77 of the Railways Act.
Sub-section (1) postulates the responsibility of a bailee as provided under Sections 151, 152 and 161 of the Contract Act for a week after the termination of transit.
Section 151 of the Contract Act makes the bailee bound to take as much care of the goods bailed to him as a man of ordinary prudence would under the similar circumstances take of his own goods of the same bulk quality and value as the goods bailed. Section 52 of the Contract Act provides that the bailee in the absence of any special contract is not responsible for the loss, destruction or deterioration of the things bailed, if he has taken the amount of care of it described in Section 151. Section 161 clarifies the bailee''s responsibility when goods are not duly returned. It provides that if, by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.
Thus it is clear that under Sub-section (1) of Section 77, the railway administration is liable, if any loss etc. or non-delivery of goods is occasioned within a week after the termination of transit, as a result of failure on the part of the railway administration to take the responsibility of bailee under Sections 151, 152 and 161 of the Contract Act. But under Sub-section (2) of Section 77 the railway administration is not responsible, if any, loss etc. of the goods is occasioned or goods are not delivered after the expiry of the period of seven days after the termination of transit. The language employed in Sub-section (2) of Section 77 is unambiguous and emphatic in telling the consignee that the railway administration shall not be responsible in any way after the expiry of period of seven days after the termination of transit if the goods are lost etc. or not delivered to the consignee.
In view of the express and clear distinction between the two provisions regarding the responsibility of the railways within a week and after a week after the termination of transit, it is not necessary for the railway administration to follow the procedure in Sub-section (1) and (2) of Section 56. Section 56 deals with the disposal of properties lying unclaimed and it provides for the procedure as to how they should be disposed off. Sub-section (1) of Section 56 provides that when any animals or goods have come into the possession of a railway administration for carriage or otherwise and are not claimed by the owner or other person appearing to the railway administration to be entitled thereto the railway administration shall, if such owner or person is known, cause a notice to be served upon him, requiring him to remove the animals or goods.
Sub-section (2) of Section 56 provides that if such owner or person is not known, or the notice cannot be served upon him or he does not comply with the requisition in the notice, the railway administration may within a reasonable time, subject to the provisions of any other enactment for the time being in force sell the animals or goods as nearly as may be under the provisions of the last foregoing section rendering the surplus, if any, of the proceeds of the sale to any person entitled thereto.
It is, therefore, clear that Sub-section (1) of Section 56 requires that notice should be issued to the owner or consignee if he is known calling upon him to remove the goods. But Sub-section (2) of Section 56 says that if the owner or consignee is not known to the railway administration or notice cannot be served or if he does not comply with the requisition in the notice it is open to the railway administration to sell the goods and tender the surplus proceeds to the person entitled thereto.
Relying upon the procedure prescribed by Section 56 Mr. Sitaramayya strongly contends that the railway administration should be held liable for the loss of the goods as Section 56 applies even to cases covered by Sub-section (2) of Section 77.
We find it difficult to accept this contention. Section 56 applies to the goods not lost but available with the railway administration even after a week after the termination of transit and they are not claimed by the person entitled thereto.
A careful examination of the provisions of Sections 77 and 56 clearly shows that they are mutually independent and exclusive in their operation. Section 56 deals with the procedure to be followed in the case of goods available with the railway administration for any length of period after the termination of transit and were lying without being called for while Section 77 deals with the responsibility of the administration within seven days and after seven days as the case may be, after the termination of transit if the goods are lost, destroyed, damaged or deteriorated or not delivered. If the goods are lost etc. or not delivered within a period of seven days after the termination of transit the railway administration is liable for damages as the administration is bound under Sub-section (1) of Section 77 to take care of goods as a bailee as contemplated by Sections 151, 152 and 161 of the Contract Act. Similarly under Sub-section (2) the railway administration cannot be sued for damages for the loss etc. or non-delivery of goods if such loss was occasioned after a period of seven days after the termination of transit.
We, therefore, find it not desirable to insist on the railway administration to follow the procedure prescribed u/s 56 in the case on hand, as the goods were lost by the time when the Plaintiffs approached the railway authorities after the termination of transit.
Mr. Sitaramayya, the Learned Counsel for the Appellants, relies upon the decision of the Supreme Court in Union of India v. W.P. Factories 1958 65 ACJ 602 (SC), in support of his contention and contends that the railway administration is under legal obligation to keep the goods under its custody even after the expiry of period of seven days after the termination of transit as required u/s 77 and it should follow the procedure prescribed u/s 56 before it disclaims its responsibility with regard to the custody of the goods. We do not think that the above cited decision of the Supreme Court lends any support to the contention of the Learned Counsel for the Appellants. In that case the consignment arrived at Morar Road Railway Station on various dates in March and delivery was given of a part of one consignment on March 7, 1943 while the remaining goods were still in the custody and possession of the railway. But on March 8, 1943 a fire broke out at the Morar Road Railway Station and these goods were involved in the fire and severe damage was caused to them. The case of the factory was that the damage and loss was caused while the goods were in the custody and control of the railway administration and the damage and loss were due to the misconduct, negligence and carelessness on the part of the railway administration. Hence the factory filed suits for Rs. 77,000 and odd with interest. The railway administration contended that the delivery has been given of at least 5 of the consignments to the factory before the fire broke out and the railway administration was not responsible for the damage done by the fire for it was the fault of the J.C. Mills not to have removed the goods immediately after the delivery. In one of the suits there was an additional issue based on the contention of the Government of India that it had given notice to Iswar Nand that consignment had arrived on February 23, 1943. But the said Iswar Nand, however, did not come to remove the goods till March 8, 1943 when the fire broke out. Therefore, it was alleged that the liability of the railway administration as carrier had ceased. This reasonable time could not be beyond three days in any case and therefore, the railway administration was not bound to make good the loss even if it had been occasioned on account of the negligence of the administration. The trial Court held that after reference to certain rules, made by the railway administration even if the railway administration''s responsibility as a carrier had ceased after the lapse of reasonable time, it was still liable as a bailee, either as a warehouseman or as a gratuitous bailee. It therefore gave a decree for Rs. 76,000/- and odd. The railway took the appeals to the High Court. The High Court dismissed the appeals preferred by the Union of India. Then the Union of India preferred appeals in the Supreme Court. Their Lordships of the Supreme Court had to deal with a case covered by Section 72 under which the responsibility of the railway is the responsibility of a warehouseman and hence their Lordships took the view that the responsibility as a warehouseman can only come to an end in the manner provided by Sections 55 and 56 of the Railways Act and the rules which have been framed as to the disposal of the unclaimed goods.
The facts of this case clearly show that the consignment was available with the railway administration till they were burnt in the fire accident. Their Lordships, therefore held that the responsibility of the railway administration u/s 72 was that of a warehouseman and the responsibility of a warehouse can come to an end in the manner provided by Sections 55 and 56 of the Railways Act.
But the case of the Plaintiffs in the case on hand comes under Sub-section (2) of Section 77 of the Act. Section 56 cannot, therefore, apply to the cases covered by Sub-section (1) and (2) of Section 77. Prior to the amendment of Section 77(1) and (2) the period prescribed was 30 days. After amendment it was reduced to 7 days. This clearly shows that the Parliament felt that the railway administration cannot be imposed with responsibility, if the goods were lost etc. or not delivered after a period of seven days after the termination of transit, as the responsibility of a bailee as contemplated under Sections 151, 152 and 161 of the Contract Act can come to an end.
Mr. Sitaramayya also relied upon the decision of the Supreme Court in Trustees of the Port of Bombay Vs. Premier Automobiles Ltd., . This decision also does not help the Appellants. It deals with Section 61-B and 87 of the Bombay Port Trust Act, 1879. Their Lordships held that it was a case of negligence and held that by virtue of Section 61-B the liability of the Board is no more than that of a bailee under Sections 151, 152 and 161 of the Contract Act.
The Learned Counsel for the Appellants also relies upon the decision of the Allahabad High Court in Bhullan Mal Asa Ram Vs. Secy. of State and Another, . That was also a case dealing with Section 72 of the Railways Act. The learned Judges therefore took the view that Sub-section (1) of Section 72 deals with the responsibility of the railway for loss, destruction or deterioration only and it does not exclude either sections of the Contract Act in regard to the bailment. If Section 72 had intended to exclude them, there would have been a reference to them in Section 72(3). We are not dealing with a case, u/s 72. The Plaintiffs'' case as stated above comes under Sub-section (2) of Section 77 of the Railways Act. Hence this decision is of no assistance to the Appellants.
Having regard to the above discussion we do not find any reasons to interfere with the judgment of the learned single Judge. We, therefore, find no merits in the L.P.A. and it is accordingly dismissed, but in the circumstances, no costs.
An oral application is made for grant of certificate to appeal to the Supreme Court. We do not find any substantial question of law or of public importance to be decided by the Supreme Court. Hence leave is refused.