P. Heeralal Galada vs Union of India

Ismail, J.—The plaintiff in O.S. No. 1599 of 1969 on the file of the City Civil Court, Madras, who succeeded before the trial Judge, but lost

before the first appellate Judge is the appellant herein. The appellant was a consignee in respect of two bales of fancy floral paper of the value of

Rs. 1536-11 under a railway receipt, despatched from Delhi to Madras through the respondent-railway. The appellant paid the freight of Rs. 113-

90 after clearing the railway receipt through bank and presenting it through his clearing agents Kesavalu Naidu Sons at Salt Cottaurs, for delivery

of the goods. One of the bales was missing and could not be traced. The other bale had been damaged considerably and could not be taken

delivery of and the missing bale had not been traced till the filing of the suit, and therefore, had not been delivered to the appellant. The appellant

instituted the suit for recovery of Rs. 1653-11 made up of the invoice amount, freight charges, back commission and damages. The respondent-

railway put forward several defences and ultimately the learned III Assistant Judge. City Civil Court, Madras, by judgment and decree dated 26th

January, 1971 overruled all the defences and decreed the suit as prayed for. The respondent-railway preferred an appeal to the learned Principal

Judge, City Civil Court, Madras, and that learned Judge by judgment and decree dated 22nd October, 1971 reversed the conclusion of the

learned trial Judge and dismissed the suit instituted by the appellant. Hence, the present second appeal by the plaintiff in the suit.

Since the suit was dismissed by the, learned Principal Judge solely on the ground that the demand contemplated by S.78-B of the Indian

Railways Act, 1890, hereinafter referred to as the Act, had not been made as required by the statutory provisions, the only question that I have to

consider in the present case is, whether this conclusion of the learned Principal Judge is correct or not.

Sec. 78-B reads as follows:

A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss,

destruction, damage deterioration or non-delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation

has been preferred in writing by him or on his behalf :

(a) to the railway administration, to which the animals or goods were delivered to be carried by railway, or

(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six

months from the date of the delivery of the animals or goods for carriage by railway:

Provided that any information demanded or inquiry made in writing from, or any complaint made in writing, to any of the railway administrations

mentioned above by or on behalf of the person within the said period of six months regarding the non-delivery or delay in delivery of the animals or

goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a

claim to the refund or compensation.

P.W.2 on behalf of the clearing agents produced Ex. A-6 said to be an acknowledgment received from a clerk in the office of the Divisional

Commercial Superintendent for receipt of the claim preferred and that acknowledgement contains some scribbling said to be an initial of somebody

under the date ""29/7"". P.W.2 himself had not stated as to who had initialed it and there is no evidence to show at to who was the person who

received the claim and acknowledged it under Ex. A-6. Under these circumstances the learned Principal Judge rightly came to the conclusion that

Ex. A-6 could not constitute an acknowledgement of the demand contemplated by S. 78 B of the Act.

However, the learned counsel for the appellant contends that from Ex. A-4, it is clear that the demand or inquiry as contemplated by the proviso

to S. 78-B of the Act has been made by the appellant herein. Ex. A-4 is a communication sent by the goods Agent, Salt Cottaurs by registered

post acknowledgement due on 30th November 1967 to the appellant herein. That refers to a letter dated 6th July 1967 of the appellant. This

communication reads:--

Please refer my registered letter number dt. 25/325/(sic) 7 of 21767 and arrange to effect delivery of one bale available at Salt Cottaurs early

producing relevant records. For the remaining one bale efforts are being made to trace and deliver the same to you in completion of the

consignment.

The learned counsel for the appellant contends that Ex. A-4 refers to a letter of the appellant dated 6th July 1967, that Ex. A-4 was by way of

reply to the information demanded or inquiry made by the appellant herein and that therefore Ex. A-4 itself will establish that the appellant had

preferred the demand as contemplated by S. 78-B of the Act. In this case, the learned appellate Judge himself pointed out that the period of six

months would have expired only by 8th November 1967 and since Ex. A-4 refers to the letter of the appellant dated 6th July 1967, the said letter

will be within the six months'' period, provided that letter can be brought within the scope of S. 78-B of the Act. The proviso to S. 78-B of the Act

clearly states that there need not be any formal demand as contemplated by the main section and even any information demanded or inquiry made

in writing or any complaint made in writing to any of the railway administrations by or on behalf of the person within the period of six months

regarding the non-delivery or delay in delivery would be deemed to be a claim to the refund or compensation, as contemplated by the main part of

the Section. On the face of it, having regard to the tenor of the reply in Ex. A.4, the letter of the appellant dated 6th July 1967 will certainly come

within the scope of either ''information demanded'' or ''inquiry made'' or ''complaint made'' with regard to the non-delivery of the goods in question.

However, Mr. Srisailam, learned counsel for the respondent, contended that even for the purpose of proviso to S. 78-B of the Act, information

should have been demanded and enquiry should have been made only to the railway administration as defined in S. 3(6) read with S. 140 of the

Act. S. 140 merely states:

Any notice or other document required or authorised by this Act to be served on a railway administration may be served, in the case of a railway

administered by the Government on the Manager or the Chief Commercial Superintendent and, in the case of a railway administered by a railway

company, on the Agent in India of the railway company--

(a) by delivering the notice or other document to the Manager or the Chief Commercial Superintendent or Agent; or

(b) by leaving it at his office; or

(c) by forwarding it by post in a prepaid letter addressed to the Manager or the Chief Commercial Superintendent or Agent at his office and

registered under the Indian Post Office Act, 18(sic) 8.

On the face of it, S.140 of the Act has no application to the present case, because what was sent by the appellant herein was not a notice or other

document required or authorised by this Act to be served on a railway administration. On the other hand, it was merely an information demanded

or an inquiry or complaint made in writing.

As far as S.3(6) is concerned, it defines the expression, ""railway administration"" as:

''railway administration'' or ''administration'' in the case of a railway administered by the Government means the manager of the railway and includes

the Government, and, in the case of a railway administered by a railway company, means the railway company.

S.3 itself opens by saying : ""In this Act, unless there is something repugnant in the subject or context..."". In my opinion, with regard to an inquiry or

complaint made or information demanded as contemplated by the proviso to S.78-B of the Act, the definition of the railway administration as

contained in S. 3(6) will have no application. The information can be demanded or the inquiry can be made only from a person representing the

railway, who is in a position to give information or give clarification. It is not in respect of every small consignment that is sent through a railway, the

General Manager of the Railway will be the person who will be in a position to give information or particulars. Therefore, the context in which the

expression, ""railway administration"" occurs in the proviso to S.78-B of the Act will clearly show that it was not intended to refer to the General

Manager or the Government coming within the scope of definition of that expression in S.3(6) of the Act. It is not disputed in this case that the

person who wrote Ex. A-4 on behalf of the railway is the Goods Agent and the said person was actually dealing with the consignment and was

competent to give information and send the reply under Ex. A-4. The position may be entirely different if the information is demanded from or

inquiry is made to a person who is totally unconnected with the transaction in question and who will not be in a position to answer the inquiry to

give any particulars with regard to the demand. That not being the case in the present appeal, I am of the opinion that the letter addressed by the

appellant on 6th July 1967 will certainly come within the scope of the proviso to S.78-B of the Act. As a matter of fact, it may also be pointed out

that though the reply under Ex. A-4 was sent by the Goods Agent, Salt cotaurs it does not say to whom the letter of the appellant dated 6th July

1967 was itself addressed, while it merely refers to that letter. That letter itself has not been produced to show to whom it was addressed. Hence,

it is quite possible that the letter itself was addressed to the Divisional Commercial Superintendent or any other authority, but it was dealt with and

answered by the Goods Agent, who alone was in a position to deal with the same.

Under these circumstances, I am of the opinion that Ex. A-4 clearly establishes that a claim falling within the scope of the proviso to S.78-B of the

Act has been made within the time required by the statute, and therefore, the suit instituted by the appellant cannot be dismissed on the ground that

there has been a failure to comply with the provisions of S.78-B of the Act. Accordingly, the second appeal succeeds and the judgment and

decree of the learned Principal Judge are set aside, and those of the learned III Assistant Judge are restored. The parties will bear their respective

costs throughout. No leave.