Patna High Court
The Great Indian Peninsular Railway ... vs Gopi Ram-Gouri Shankar on 1 December, 1927
Equivalent citations: 107IND. CAS.540
JUDGMENT Ross, J.
1. The respondents brought this suit for compensation for nondelivery of one out of four bales of cloth consigned to the Great Indian Peninsular Railway Company at Bombay for delivery to them at Gaya on the East Indian Railway. The defence was that the goods were lost in transit and that the defendant Companies were protected by Risk Note B; and, further, that the suit was bad for want of notice under Section 77 of the Indian Railways Act within six months from the date of delivery of the goods to the defendants.
2. The Courts below dismissed the suit as against the East Indian Railway and gave the plaintiffs a decree for part of their claim as against the Great Indian Peninsular Railway, holding, inter alia, that, as this was a case of non-delivery where no loss was proved, Section 77 had no application. The case was remanded for a finding on the question of the service of notice under Section 77 and it has been found by the learned Subordinate Judge that there is no proof of service of notice beyond the allegation in the plaint which not having been traversed in the written statement, must be accepted, namely, that notice was given to the agents of the defendant Companies on the 8th of December, 1921. The goods were consigned on the 11th of April, 1921, and three bales were delivered on the 19th of May, 1921. The suit was brought on the 11th of March, 1922. Consequently if notice was required under Section 77, the notice was out of time; but if no notice was required then the suit was properly instituted within the period limited by law.
3. The question for decision, therefore, is whether in a suit for non-delivery notice has to be given under Section 77 of the Act. In East Indian Ry. Co. v. Kali Charan Ram Prasad 69 Ind. Cas. 103 : 3 P.L.T. 215 : (1922) Pat. 145 : A.I.R. 1922 Pat. 106 it was held by my brother Jwala Prasad that Section 77 requires notice only in a case of a claim for compensation for loss, destruction or deterioration of goods and does not apply to a suit based upon compensation on account of non-delivery of goods, as apart from loss, destruction or deterioration of the same. But in Agent of the B.N. Ry. Co. v. Hamir MullChagan Mull 90 Ind. Cas. 374 : 5 Pat. 106 : 6 P.L.T. 565 : A.I.R. 1925 Pat. 727 : (1926) Pat. 114 it was held by a Division Bench of this Court that non-delivery constitutes loss within the meaning of Section 77 and, therefore, service of notice under that section is essential in a suit for compensation for non-delivery. This decision has been followed in other cases.
4. The learned Advocate for the respondents contends, however, that this decision rests ultimately upon the view taken in Great Indian Peninsular Ry. Co. v. Jitan Ram 72 Ind. Cas. 440 : 2 Pat. 442 : (1923) Pat. 82 : 4 P.L.T. 173 : 1 Pat. L.R. 169 : A.I.R 1923 Pat. 285 to the effect that 'loss' means loss to the owner and that as that view is no longer tenable since the decision of the Full Bench in Puran Das v. East Indian Ry, Co. 102 Ind. Cas. 673 : 8 P.L.T. 415 : A.I.R. 1927 Pat. 234 : 6 Pat. 718 the ground of the decision that notice is necessary in cases of non-delivery has gone. In an elaborate judgment in East Indian Ry. Co. v. Jagpat Singh 79 Ind. Cas. 126 : 28 C.W.N. 1001 : 51 C. 615 : A.L.R. 192 Cal. 725. Page, J., held that the term "loss" as used in the Risk Note and in the Chap. VII, of the Railways Act does not mean pecuniary loss to the owner of the goods, but means loss of goods by the Railway Company while in transit. And it has recently been decided by the Calcutta High Court in Great Indian Peninsular Ry. Co. v. Jesraj Patwari 106 Ind. Cas. 252 : 32 C.W.N. 76 : 46 C.L.J. 428 by Ranker, C.J., and Mitter, J. that in suits for damages for non-delivery of a part of a consignment delivered under Risk Note B, there is a necessity of proving that there has been in fact a "loss" of the part concerned and the initial burden of proving that is on the Railway Company. In Puran Das v. East Indian Ry. Co. 102 Ind. Cas. 673 : 8 P.L.T. 415 : A.I.R. 1927 Pat. 234 : 6 Pat. 718 Das and Adami, JJ., agreed with the view of Mr. Justice Page and as this view differed from the decision in Great Indian Peninsular Ry. Co. v. Jitan Ram 72 Ind. Cas. 440 : 2 Pat. 442 : (1923) Pat. 82 : 4 P.L.T. 173 : 1 Pat. L.R. 169 : A.I.R 1923 Pat. 285, they referred the case to a Full Bench. It was found by the Full Beach that on the pleadings the reference did not arise; but reliance is placed upon the judgment of my brother Jwala Prasad and on certain observations in the judgment of the learned Chief Justice. This decision of the Full Bench has since been considered along with other decisions of the Court in two cases by two Division Benches of this Court; and in Nagendra Nath Sen v. B. & N.W. Ry. Co. 105 Ind. Cas. 546 it was held that in a suit based on non-delivery the Railway Company must prove loss before they can claim the benefit of the Risk Note; and in Tarachand Marwari v. Bengal Nagpur Ry. Co. 107 Ind. Cas. 158 that decision was followed; and it must be taken that since the decision of the Full Bench, the view in this Court has been that non-delivery does not constitute loss and, therefore, the decision in Great Indian Peninsular Ry. Co. v. Jitan Ram 72 Ind. Cas. 440 : 2 Pat. 442 : (1923) Pat. 82 : 4 P.L.T. 173 : 1 Pat. L.R. 169 : A.I.R 1923 Pat. 285, is not conclusive of the present question. Now on the language of Section 77 a notice is only required in cases of claims for refund of an overcharge or for compensation for loss, destruction or deterioration. If non-delivery is not co-extensive with loss, it would seem to follow that notice is not required in a suit based on non-delivery; and obviously non-delivery includes much more than loss which is only one of several possible cases. Non-delivery may be due to misdelivery or to wilful detention by the Railway Company as well as to loss. As was pointed out by Page, J. in the case cited above, the true view would seem to be that the goods may or may not be lost and that proof of non-delivery is by no means a conclusive evidence as to whether or not loss has occurred. "Indeed I go further and beg leave to state that on such evidence alone an inference could not reasonably be drawn that the goods had been lost". It would seem to follow from this decision as well as from the language of the section itself that when non-delivery without more is pleaded no notice under Section 77 is required though it may turn out that the suit will fail for want of notice if it be established by the Railway Company that it is in fact a case of loss. A different view was taken by the Calcutta High Court in Assam Bengal Ry. Co., v. Radhika Mohan Nath 72 Ind. Cas. 714 : 28 C.W.N. 438 : A.I.R. 1923 Cal. 397 where it was held that in a suit based on non-delivery notice under Section 77 is required, though there the question whether notice would be necessary where the goods were wrongfully detained was left open. That decision seems to have proceeded on an interpretation of "loss" which is inconsistent with the later decisions. In effect the question of notice seems to come back to the prior question of loss. If the Railway Company plead want of notice they must show that this case of non-delivery was a case of loss. The position, therefore, on the merits and on the technical question of notice is precisely the same, viz., the defendant company must plead and prove loss before it can rely either on the Risk Note or on want of notice.
5. The appeal is dismissed with costs including the costs of the first hearing and of the remand.
Jwala Prasad, J.
6. I agree.