M.A.P. Palanichami Nadar vs The Governor-General of India in Council

Yahya Ali, J.—This petition arises out of a small cause suit instituted by the plaintiff who is the petitioner here for compensation for non-

delivery of goods consigned for transit. The goods were consigned for being sent from Colombo to Madura. The consignee was the Colombo

Government Railway, but part of the journey had to be covered over the South Indian Railway belonging to the respondent company. There were

four consignments of arecanuts and when they were delivered, 15 bags out of those consignments were short. The petitioner carried on

correspondence with both the companies, as a result of which 11 bags were found and delivered, and there was an ultimate short delivery of 4

bags. It is for the value of those four bags at Rs. no per bag that the suit was laid against the South Indian Railway Co. The four bags that were

short consisted of two bags out of the first consignment and two bags out of the fourth consignment. With reference to the two bags of the first

consignment, the plaintiff''s case was that he was informed by the Ceylon Government Railway that the entire consignment had been delivered in

good order by that company to the South Indian Railway Co. and that fact had also been notified to that company by letter dated 9th January,

1943. The plaintiff, therefore, proceeded upon the footing that the South Indian Railway Co., was liable to make good the loss sustained by him on

account of the non-delivery of the two bags out of the first consignment.

As regards the two bags in the fourth consignment, the plaintiff claimed the value thereof, but the defendant company''s case was that the entire

consignment had been delivered and acknowledged on behalf of the plaintiff and that there was no short delivery in that case. The plaintiff''s case,

so far as these two bags of the fourth consignment are concerned, must, I think, fail. In Ex. D-2, the delivery register, P.W. 1, the clearing agent of

the plaintiff signed in token of having received all the 20 bags of that consignment. It is apparently usual in cases where there is short delivery to

make a note thereof in the delivery register. Such a note was made in the case of the first consignment in Ex. D-1. The fact that in Ex. D-2, the

receipt of all the bags was acknowledged and no such note as exists in Ex. D-1 was made clearly establishes that there was no short delivery in

that case. The plaintiff''s learned advocate contended that P.W. 1 discovered the shortage sometime later and brought it to the notice of the

company''s clerk and he also referred to the fact that in the Gate Pass Book the exact quantity of bags that passed the gate would appear and from

that the quantity of consignment that was delivered could be gathered. Although the plaintiff gave notice to the defendant for the production of

certain documents, he did not ask for the production of the Gate Pass Book. Having regard to all these circumstances I find no merit whatever in

the plaintiff''s case relating to the alleged short delivery of two bags out of the fourth consignment.

With regard to the short delivery of two bags in the first consignment, two grounds are urged against the plaintiff''s claim on behalf of the

defendants. The first is that there was no cause of action in respect of the alleged short delivery against the respondent company having regard to

the language of Section 80 of the Indian Railways Act. The second objection is that the claim of the plaintiff in respect of this item is barred by

limitation under Article 31 of the First Schedule of the Limitation Act.

Section 80 of the Indian Railways Act provides that a suit for compensation for loss of goods, where the goods were booked over the railways

of two or more administrations, may be brought either against the railway administration to which the goods were delivered by the consignor

thereof or against the railway administration on whose railway the loss occurred. The contention of the advocate for the respondent is that

ordinarily a suit for compensation for non-delivery can be instituted only against the contracting, or "" forwarding company,"" as it is called in the

Railway parlance; but since in several cases it will be difficult for the consignor to locate the place of the loss, precisely, option is given to him, if he

can prove that the loss occurred on the railway of the delivering company, to sue the delivering company in respect of the said loss. It is argued on

the authority of Chunnilal v. Nizam''s Guaranteed State Railway Co., Ltd. I.L.R.(1996) All. 228 that the forwarding company does not contract

with the consignor of goods as the agent of the delivering company and that the delivering company is really the agent of the forwarding company.

This position is not disputed by Mr. Ramaswami Iyer who appears for the petitioner. He concedes that he could only proceed against the

respondent if he could bring the case within the ambit of Section 80. He also concedes that the burden of proving loss by the respondents upon

him but his position is that he has, as far as he was able, proved that the loss occurred not on the Ceylon Government Railway, but on the South

Indian Railway. It is, therefore, unnecessary to examine the decision referred to above and some other decisions which were cited in the same

connection. To start with, it was definitely averred in the plaint, paragraph 10, that the plaintiff had given notice to the Ceylon Government Railway

on 5th March, 1943, and that he had received a reply stating that the entire goods had been safely delivered to the defendant company. This

specific averment was not controverted or denied in the written statement of the respondent, nor was anything stated in. answer thereto. The letter

of the Ceylon Government Railway is Ex. P-5 dated 13th March, 1943. In that letter, the Ceylon Government Railway Co. stated that the

consignment of arecanuts as per invoice No. 64 of 8th June, 1942 (i.e., the first consignment) had been correctly given over to the South Indian

Railway Co., Ltd., on 12th June, 1942, and the Chief Commercial Superintendent, Trichinopoly, had been informed accordingly on 9th January,

1943. In the notice dated 21st February, 1944, served by the plaintiff''s pleader upon the defendant in S.C.S. No. 181 of 1943, the plaintiff

required the production at the hearing of the suit, inter alia, of all the correspondence that passed between the defendant and the Ceylon

Government Railway Manager, regarding the receipt of the consignments mentioned in the plaint. It would appear that no affidavit was filed in

answer to this notice, nor was any statement made as to the circumstances in which the documents called for were not, or could not be, produced.

It cannot be denied that these documents were in the possession and power of the defendant and that they were not only relevant but important

documents which would have furnished valuable evidence in the case. The conduct of the defendant in keeping back these documents cannot in the

circumstances be justified. Further, from the correspondence filed in the case, it is obvious that the petitioner was endeavouring from the

commencement to get some satisfactory answer from the South Indian Railway Co., after the receipt of Ex. P-5, with regard to the two bags that

were missing, and to each of the inquiries that he was making, the company was replying saying that the matter was under inquiry or still under

inquiry and a further reply might be awaited. In some of these notices, it was stated that if in the meanwhile the petitioner took the matter to Court,

he would be liable for the entire costs of the company in the said proceeding. The correspondence went on in this strain until 18th December,

1943, on which date by Ex. P-14 the respondent company informed the petitioner that there was no trace of the remaining two bags on the line of

the South Indian Railway Co., and they further added this:

In this connection I have to point out to you that the claim in this case is now barred by limitation under Articles 30 and 31 of the Limitation Act

and as such no claim in respect of the alleged loss is admissible.

The suit out of which this present petition arises was filed on 11th December, 1943, about a week prior to the receipt of this notice. These facts

will be more relevant in connection with the question of limitation which will be dealt with presently; but they are mentioned here to show that the

respondent company had entered into protracted correspondence in the matter and in spite of the notice to produce the same the company had

failed to do so. The contention of the learned advocate for the respondent is that u/s 80 of the Indian Rilways Act, the company is not bound to

produce any evidence, but the entire burden was upon the consignor to prove loss in a conclusive manner especially since the suit was against the

delivering company and not the contracting or forwarding company. When goods have been consigned for transport from one place to another

over two railways and there is evidence to show that they reached a particular midway station from where the jurisdiction of the delivering railway

company commences and they were duly handed over to the delivering company in good order and the goods have not reached the destination,

the only possible conclusion is that the goods were lost and that they were lost on the railway of the delivering company. The respondent does not

dispute the genuinenes or truth of the statement contained in Ex. P-5. He has not produced, as already pointed out, the letter dated 9th January,

1943, which was sent by that company notifying the fact of the delivery of the entire consignment in good order to the South Indian Railway Co.

There must have been some further correspondence in the matter between the two companies and that correspondence has not been produced in

spite of notice. In these circumstances, I find no difficulty in holding that the petitioner has succeeded in proving that the loss occurred on the

railway of the delivering company and that consequently u/s 80 of the Indian Railways Act the suit is maintainable against the delivering company

and the claim of compensation in respect of short delivery is sustainable.

The more important question in the case is that of limitation. Article 31 provides a period of one year from the date when the goods ought to

have been delivered. This expression "" when the goods ought to have been delivered "" occurring in the third column of Article 31 of the first

schedule has been the subject of consideration in numerous cases that have arisen in Courts''. I shall deal with a few of them. In Jugal Kishore v.

Great Indian Peninsular Railway I.L.R.(1922) All. 43. Stuart, J., and Sulaiman, J., (as he then was), said:

Article 31 fixes one year from the date when the goods ought to have been delivered and applies to suits to recover compensation for non-

delivery. It is to be noted that in the present case no time was fixed for the delivery of goods, and the correspondence between the parties shows

that the matter was being inquired into and that there was no refusal to deliver, up to well within a year of the suit. In the circumstances of the case

we arc unable to hold that the suit was instituted more than a year from the expiry of a reasonable time within which the goods should have been

delivered. This view is fully supported by the case of the The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs. Bhimappa and

Another, .

In another place, the learned Judges said that they would not recognise any inflexible rule that time must begin to run from the expiry of the

ordinary period of transit. There are two decisions of this Court which have taken a similar view. The first is The Madras and Southern Mahratta

Railway Co., Ltd., Madras Vs. Bhimappa and Another, referred to in the Allahabad case just cited. There, Sir Ralph Benson, O.C.J., and

Sankaran Nair, J., observed:

No time has been fixed for the delivery of the goods and the correspondence between the parties shows that the matter was being inquired into

and the suit was brought within one year from the date of refusal to deliver. We are unable to say that the plaintiffs delayed more than one year

from the expiry of a reasonable time within which in the circumstances of the case the goods should have been delivered.

This case was followed in the S.I. Railway Co. v. Narayana Aiyar (1923) 46 M.L.J. 302. Where it was held that the time would begin to run

from when the defendant company finally said that the goods would not be delivered.

As against these decisions all tending one way, learned Counsel on behalf of the respondent has drawn my attention to a number of decisions,

most of which have no bearing upon the present point. There are only three out of those cases which need be referred to. The first is Mutsaddilal v.

Bombay Baroda and Central India Railway Co. I.L.R.(1920) All. 390 The facts of the case are entirely different, but it contains one passage at all

events which supports the petitioner''s contention. On page 393 of the report is found the following observation :

It is by reason of the non-delivery of the bags that he sustained the loss for which he seeks to be compensated,

Thus showing that the cause of action to the petitioner consists in such cases in the non-delivery of the bags, or to put it in other words, the

cause of action arises when the petitioner is made aware that there will be no further delivery of the undelivered part of the consignment. The

second case cited by the respondent''s advocate is a decision of the Patna High Court in Gopiram Gowri Shankar v. Great Indian Peninsular

Railway Co. (1927) 103 I.C.383. In this case, the Judges were of the opinion that where a great part of a consignment had been delivered on a

certain day there was 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 been delivered is manifestly the time when the greater part of the

consignment arrived at its destination. A later decision of the same High Court is in Bengal and North- Western Railway v. Maharajadhiraj

Kameswar Singh Bahadur I.L.R.(1932) Pat.67. That was a decision of a Division Bench and there the following observation occurs :

The plaintiff, on the 23rd October, wrote to the defendants of the loss. He was justified in waiting to bring his suit until the defendants had made it

clear that they had no intention of delivering the goods. Had the position been reverse, the defendants would not have hesitated to contend that a

suit was premature which did not give them a reasonable opportunity of fulfilling the terms of the contract. The defendants by a deliberate process

of ignoring the plaintiff''s repeated requests for attention to his claim misled him into delaying his suit and it is not open to them now to contend that

the suit has been brought too late.

In this decision, the earlier decision of the same Court, Gopiram Gowri Shankar v. Great Indian Peninsular Railway Co. (1927) 103 I.C.383.

was not, however, referred to. It must be further noted that Bengal and North-Western Railway Co. v. Maharajadhiraj Kameswar Singh Bahadur

I.L.R.(1932)Pat.67. was a case where a part of the consignment had been delivered on an ealier date and a part remained to be delivered in

respect of which the company was for a long time making inquiries--facts which are similar to the facts of the present case. Then we have the

decision in Secretary of State v. Dunlop Rubber Co. I.L.R.(1925) Lah.301 which is the only case which really supports the contention put forward

on behalf of the respondent. As against that decision we have the authority of the four decisions already referred to, Jugal Kishore v. Great Indian

Peninsular Railway I.L.R.(1922) All. 43 The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs. Bhimappa and Another, , South

Indian Railway Co. v. Narayana Aiyar I.L.R.(1923) M.L.J. 302, and Bengal and North-Western Railway v. Maharajadhiraj Kameswar Singh

Bahadur I.L.R.(1932)Pat. 67. In this state of affairs, the volume of authority is definitely in favour of the view propounded on behalf of the

petitioner. The construction placed upon Article 31 that time begins to run from after a definite refusal or declaration of inability to deliver by the

responsible railway company has to be upheld.

The result of these findings will be that so far as the two bags relating to the fourth consignment are concerned, the plaintiff''s suit will be

dismissed. With reference to the two bags of the first consignment, the order of the Subordinate judge of Madura will be set aside and the

plaintiff''s suit will be decreed for a sum of Rs. 144 at the rate of Rs. 72 per bag which is the rate found by the learned Subordinate Judge under

the fifth issue. The parties will give and receive proportionate costs throughout.