Union of India vs Mitayagiri Pullappa

Srinivasachari, J.—This revision has come before a Bench on a reference made by one of us (the Chief Justice) in view of the conflict of decisions on the interpretation of the provisions of S. 77, of the Indian Railways Act, Act 9 of 1890.

This revision arises out of a Suit filed by the respondent against the Union of India owning the Southern Railway for the recovery of a sum of Rs. 52-1-0 on account of the price of 3 sarees which were missing at the time of the delivery of the goods consigned to the plaintiff at Nandyal by a cloth merchant at Trichinopally.

The plaintiff''s allegation was that 46 sarees were consigned by the merchant at Trichinopally and the consignment, when it was delivered, contained only 43 sarees. The claim was for compensation for shortage of delivery. The defendant Railway inter alia contended that as the plaintiff failed to give the notice as required by S. 77 of the Indian Railways Act, within six months of the delivery of the goods to the Railway he was not entitled to any compensation. Section 77 of the Indian Railways Act 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 or deterioration 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 behalf to the Railway administration within months from the date of the delivery of animals or goods for carriage by railway.

In the case under consideration goods were despatched on 27-4-1954. consignment reached Nandyal oh 15-5-(sic) Notice was sent by the Plaintiff to the General Manager of the Railway on 11th November 1954.

The Munsif held that the pla(sic) had complied with the requirements or S(sic) of the Railways Act, as his notice issued 11th November, 1954 was within six month of the date of the receipt of the good Nandyal. He, therefore, rejected the ple(sic) the Railway and decreed the suit. Hence revision before this Court by the Railway.

The language of the section is and admits of no doubt that the notice templated under this section should be within six months from the date of the very of the goods for carriage by Rai(sic) and not within six months from the da(sic) the delivery to the consignee, for there not be any delivery at all; the goods have been lost tin transit. Entrustment (sic) goods is a known date, while it could (sic) said so of the delivery of goods to the (sic)signee.

The object of a notice to the Railway (sic) that the Railway authorities, should be ap(sic) of the loss or damage promptly in or(sic) enable them to enquire and investigate the matter quickly before it becomes to(sic) to get any clue with regard to the l(sic) damage. The Munsif was, therefore, (sic) wrong in computing the period of six (sic) from the date when the goods were a(sic) delivered to the plaintiff at Nandyal.

The notice not being within six (sic) of the date of the handing over to the way of the goods for despatch the suit is to be dismissed but it is contended that case of this kind where there has been delivery'' no notice is required before cl(sic) compensation. The argument is that the ''loss'' occurring in S. 77 of the Act imp(sic) complete loss of the goods and not where a portion of the goods is not tra(sic).

The word ''loss'' in its general sense deprivation, damage or detriment. In to this question as to what is meant b(sic) and in what cases a notice under S. 77 Railways Act is obligatory there has b(sic) diversity of views. Different interpre(sic) have been put upon the word ''loss'' o(sic) in S. 77 of the Act.

The first case that might be (sic) to is the case of Secretary of State v. Jiwan, ILR 45 All 380 : (AIR 1923 A (A). Interpreting the words ''loss, des(sic) or deterioration'' in S. 152, Contract Act the word ''loss'' in S. 72 of the Railway which refers to the risk note form e(sic) by a consignor, the word ''loss'' was inte(sic) to mean loss by the bailee.

In that case it was loss occasioned by (sic)erioration and not a loss caused by reason abstraction of some of the goods. It has be observed that a restricted interpretation put upon the word ''loss'' in some of the (sic)s. Those cases proceed upon the reason that notice is required only in the case of claim for compensation for loss, destruction deterioration of goods, but where the alle(sic) of the claimant is that there has been a delivery or mis-delivery no notice is con(sic) plated under S. 77 of the Railways Act.

Secretary of State v. Firm Daulatram kanlal, 1937 All LJ 794 :

(AIR 1937, All (B), this view was taken.

In so far as the Madras High Court concerned, the first decision on this point which reference may be made is the case (sic) and S. M. Railway v. Haridoss Banmali (sic), ILR 41 Mad 871 : (AIR 1919 Mad 140) which was an appeal against the judgment Kumaraswamy Sastri, J. on the Original

The learned Judge held that S. 77 of Railways Act could not apply to a case (sic)e the Railway with their eyes open deli(sic) the goods to a wrong person.

On appeal the Division Bench did not (sic) with the learned Judge. While Chief (sic)e Wallis was of the opinion that no dis(sic) on should be drawn between cases in (sic) goods have been delivered to the wrong (sic)n and cases in which they were delivered person other than the consignee and that (sic)th cases notice under S. 77 was necessary the other learned Judge, Spencer, J. (sic)d that notice was necessary where goods not forthcoming either from deliberate (sic)r acts of negligence.

Horwill, J. had to deal with this mat(sic) Governor General of India in Council (sic)rishna Shenoy, 1950-2. Mad LJ 506: (sic) 1951 Mad 327) (D). It would appear in that case one of the three Railways had to carry the goods viz.; the M. & Railway was not able to satisfactorily (sic)ish that they had passed on the goods (sic) next Railway viz.; the B.N. Railway for (sic) carried to Visakhapatnam. The case (sic)ded on the basis that the goods were in (sic)stody of the M. and S. M. Railway.

Under those circumstances the learned (sic) held that S. 77 would not apply to a of non-delivery when the consignee was (sic) a position to know what had happened goods and that therefore a suit brought recovery of compensation could not be (sic)ed for want of a notice under S. 77 of the (sic)ys Act. In this respect the learned (sic) purported to follow a decision of the (sic) a High Court of Lort- Shamsul Huq Vs. Secy. of State,

(sic) this case the learned Judge of the (sic)a High Court drew a distinction be(sic) loss occasioned by destruction or dete(sic)n and loss occurring on account of de(sic) or conversion. In the latter case, ac(sic) to the learned Judge, no notice was essential. This view of the learned Judge does not appear to have been followed by the Judges of the Calcutta High Court in later decisions for, in Darjeeling Himalayan Rly. Co. Ltd. and Others Vs. Jetmull Bhojraj and Another, a Bench consisting of Mookerjee and Mitter, JJ. clearly laid down that loss included loss by the carrier as also loss of the owner whether for misdelivery or for non-delivery.

The matter came up for consideration again in K.V.V. Ardhanari Chettiar and Co., by managing partner K.V.V. Ardhanari Chettiar Vs. The Union of India (UOI) and Another, before Krishnaswamy Naidu, J. wherein learned Judge held that the word ''loss'' should be given a liberal interpretation so as to include cases of non-delivery. The learned Judge however said that the word ''loss'' in S. 77 would exclude those classes of cases where there was a wilful withholding of the goods by the Railway Company.

The trend of decisions of all the Courts in India and the weight of authority is in favour of the view that there is no warrant for giving a restricted interpretation to the word ''loss'' in S. 77 of the Act. Loss would include loss to the owner on account of nondelivery or mis-delivery as well. We have already adverted to the decisions of the Allahabad and the Calcutta High Courts. The Bombay High Court also took the same view as would be apparent from the decisions of that High Court in The Great Indian Peninsula Railway Vs. Ramchandra Jagannath, and Martab Ali Vs. Union of India,

The Patna High Court has expressed the view that a case of non-delivery or misdelivery could not be regarded as coming within the meaning of ''loss'' so as to attract S. 77 of the Act. The Digambar Mahton Vs. Dhanraj Mahton and others In the case of Dominion of India Vs. Hazari Lal and Another, , a full Bench of the same High Court held that S. 77 of the Railways Act would apply to a case where the plaintiff sues for compensation on the allegation that the goods were lost in transit and that such a suit was liable to be dismissed if no prior notice was given. But on account of the settled practice in the Patna High Court to treat cases of non-delivery as not covered by the word ''loss'' in S. 77, the Judges expressed that they were constrained to adopt the same view.

The word ''loss'' has been interpreted in various English Decisions, to mean loss by the carrier and not simply loss to the owner.

Those decisions were given in cases under the Carriers Act of 1830; but it has to be observed that in S. 72 (3) of the Indian Railways Act it is stated ''nothing in the common law of English or in the Carriers Act of 1865 regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway Administration.

Under those circumstances the word ''loss'' cannot bear a restricted meaning assigned to of in English cases. The Acts are not in pari materia as observed in ILR 41 Mad 871 : (AIR 1919 Mad 140) (C). The word ''loss'' has to be interpreted in the context in which it occurs.

The words are ''compensation for loss... They have to be given their plain and natural meaning. The words imply that the claimant would be entitled to compensation for the loss sustained by him whether such loss is occasioned by non-delivery on account of the tortuous conduct of the Railway or its servants or by conversion of the goods or by the goods being lost in transit.

The right to claim compensation from the Railway arises whether the cause of action is founded on contract or on tort. On a true construction of S. 77 loss means loss to the owner by whatever means. There is no warrant for making a distinction between a claim for compensation on account of loss of goods by a Railway Company and a claim for compensation on the ground of non-delivery or misdelivery.

We allow this revision and set aside the Judgment of the lower Court. The plaintiffs suit is dismissed for want of notice under S. 77 of the Railways Act. The petitioner will have his costs both here and in the lower Court.