Gauhati High Court
Suraj Mal Tewari vs Union Of India (Uoi) And Ors. on 21 March, 1990
Equivalent citations: 1991ACJ886, AIR 1991 GAUHATI 35, (1991) 1 LJR 920, (1991) 2 ACJ 886, (1990) 3 CURCC 560
ORDER R.K. Manisana, J.
1. This revision petition arises from the decree passed by the Assistant District Judge (1) Cachar in MS No. 1 of 83 allowing the appeal by setting aside the judgment and decree passed by the Sadar Munsiff (2) Silchar in Money Suit No. 259 of 1980.
2. The plaintiff-petitioner filed a suit for recovery of Rs. 2767.53 against railway authority as compensation for short delivery of 104 handloom saries. On 30-9-77, 107 handloom saries were booked from Man Railway Junction to Silchar Railway Station. Out of 107 saries railway delivered only 3 saries to the plaintiff and 104 saries were not delivered. Compensation was preferred in writing by the plaintiff on 7-10-80.
3. The only question for consideration in this case is whether compensation was preferred beyond the time prescribed under Section 78-B of the Indian Railways Act, and, therefore, the suit is not maintainable.
4. Mr. S. K. Senapati, learned counsel for the petitioner, has contended that the limitation under Section 78-B shall run from the date of open delivery as it would be impossible to know the shortage unless consignee takes open delivery of the goods and, therefore, the claim under Section 78-B was within time. In order to support his contention Mr. Senapati has referred me to a decision of this Court in Amarchand Panna-lal v. Union of India, AIR 1955 Assam 221.
5. In Amarchand (supra) this Court has held : "I have my own doubts as to whether this period of six months should be calculated from the date on which the goods were delivered to the consignee or his representative or from the date on which the goods were originally consigned to the Railway.....
If it is held on the contrary that the limitation period should run from the date when the goods were first consigned or delivered for carriage to the Railway, we are then reduced to the anomalous position that in certain cases the claim under Section 77 will have to be preferred even before the goods are delivered or even before the consignee is aware whether any loss or damage has been caused."
6. Section 78-B provides that a person shall not be entitled to compensation for the non-delivery of goods delivered to be so carried, unless his claim to the compensation has been preferred in writing by him or on his behalf within six months from the date of delivery of the goods for carriage by the railway. Short delivery is the consequence of failure to deliver all the goods consigned for delivery. The word "non-delivery", in my opinion, means failure to deliver (goods). Therefore, short delivery is non-delivery of some of the goods delivered for carriage by the railway -- in the present case, nondelivery of 104 saries. For non-delivery, Section 87-B expressly provides that period of six months is to be computed from the date of delivery of the goods for carriage by railway. For these reasons, the period of six months shall be calculated from the date of delivery of goods to the railway for carriage.
As regards the decision of this Court in Amarchand, (AIR 1955 Assam 221) (supra), the decision was before the Indian Railways (Amendment) Act, 1961 came into force. That apart, although a doubt was expressed in that decision as to whether period of six months should be calculated from the date of delivery of goods for carriage by the railway, or from the date on which goods were delivered to the consignee or his representative, this Court has held that limitation shall be calculated from the date of delivery of the consignment to the railway. Therefore, the decision of this Court in Amarchand's case does not help the petitioner.
7. For the reasons stated above, I am unable to accept the contention of Mr. Senapati. As already stated, the goods were delivered for carriage by the railway on 30-9-77 and the claim was preferred on 7-10-80 beyond six months of the delivery of goods for carriage by the railway. Therefore, the requirements of Section 78-B has not been complied with, The claim under Section 78-B is not a part of the cause of action although it is a condition precedent and/or a mode of procedure for getting the relief, and as such, the result of the non-compliance with the provisions of Section 78-B is that no valid suit is there, viz., the suit is not maintainable. Accordingly, the petition is dismissed. No costs.