Patna High Court
Lakshmi Narain Ram Narain vs Union Of India (Uoi) And Ors. on 2 February, 1965
Equivalent citations: AIR1966PAT19, AIR 1966 PATNA 19, ILR 45 PAT 1439 1965 BLJR 359, 1965 BLJR 359
JUDGMENT Ramratna Singh, J.
1. This appeal has been preferred by the plaintiff, because its claim for compensation for Rs. 13,250, besides interests pendente lite and future and costs, against two Railway administrations and the Union of India was decreed in part for Rs. 200 only with costs against the defendants by an Additional Subordinate Judge of Ranchi.
2. On account of the plaintiff, a consignment of two pumping sets in sound and well packed condition was made over at Betul railway station on the Central Railways (defendant No. 2) for carriage and conveyance by itself and the South Eastern Railway (defendant No. 3) to Ranchi to be made over there on the 21st May, 1956, to the plaintiff, which was the consignor. The consignment was, however, never delivered to the consignee, which was the holder of the railway receipt, in due course. Only defendant No. 2 contested the suit, and the other defendants did not appear. Defendant No. 2 submitted that the consignment in question was received at Chakradharpur in due course, and the same was correctly despatched for onward journey. It was unloaded at Rhojudih railway station, but the crates were found unmarked and was unidentified there. Hence, it remained unconnected and was subsequently auction sold publicly at Rs. 200 in accordance with the railway rules. The allegation of the plaintiff that the consignment was not delivered on account of the negligence and misconduct of the railway servants was denied. Further, objection was taken on the ground that notice under Section 77 of the Indian Railways Act was not served and that the claim of the plaintiff was barred by limitation.
3. The learned Subordinate Judge held that notice under Section 77 of the Railways Act was not necessary on the facts of the case and that the claim was not barred by limitation. But he granted a decree for Rs. 200 only, as he thought that the plaintiff had failed to prove payment of Rs. 13,250 as the price of the pumping sets. Hence, the appeal by the plaintiff. A cross-objection was filed on behalf of the respondents to the effect that the entire claim ought to nave been refused by the court below, because the suit was not maintainable on account of absence of notice under Section 77 of the Railways Act and the claim was barred by limitation both under Articles 30 and 31 of the Limitation Act.
4. The only point urged by the learned Advocate for the appellant was that the court below ought to have granted a decree for the entire amount claimed, inasmuch as there was sufficient evidence on the record to prove the same. Subject to the legal objections, which will be discussed presently, this plea of the appellant is well-founded. The plaintiff firm examined two witnesses. Umashankar Jaiswal (P. W. 1) is the Manager of the firm at Seoni. He was present when the consignment in question was booked at Betul railway station for Ranchi, and he paid the price of the pumping sets to Suraj Narain Prasad, commission agent of Seoni, who had supplied the two steel pumps. P. W. 1 has proved the bill for the price of the two pumps, Ext. 1 (a), for Rs. 13,250, dated the 22nd May, 1956, in the pen of Suraj Narain as also the receipt (Ext. 1) for this amount in the pen of the same gentleman. This receipt does not bear any date, but an endorsement on that receipt in the pen of P. W. 1 is dated the 22nd May, 1956, where he has noted that he paid Rs. 13,250. Nageshwar Prasad (P. W. 2), another employee of the plaintiff, was also present when the price was paid to Suraj Narain by P. W. 1, and after payment of the price Suraj Narain handed over the receipt to P. W. 2.
The witnesses have stood the test of cross-examination, and there is no reason to doubt their statements, particularly when no evidence on this point has been adduced by the railway, I am unable to agree with the learned Subordinate Judge that it was incumbent upon the appellant to have examined Suraj Narain, by whom Exts. 1 and 1 (a) are said to have been written, or that the absence of any date below the signature of Suraj Narain in the receipt (Ext- 1(a) ) was material. Further, the fact that in the railway receipt (Ext. 2) Suraj Narain wrote his name as "Suraj Narain Prasad", while he wrote it in Exts. 1 and 1 (a) as "Suraj Narain Prasad Sinha" is not at all material. Again, the non-production of the account books of the appellant in support of Exts. 1 and 1 (a) cannot affect the case of the appellant, when there is nothing on the record to doubt the genuineness of these two documents. In the circumstances, the evidence adduced on behalf of the appellant is sufficient to prove that the two pumping sets had been purchased by P. W. 1 on behalf of the appellant for Rs. 13,250, and, subject to the legal objections raised on behalf of the railway, the appellant would be entitled to a decree for Rs. 13,250, besides interests till the institution of the suit at 6 per cent per annum.
5. Mr. P. K. Bose who appeared for the railways, however, questioned the findings of the learned Subordinate judge in respect of the plea of the bar under Section 77 of the Railways Act and Articles 30 and 31 of the Limitation Act. The consignment was admittedly booked on the 21st May, 1958, and the appellant gave notice of its claim to the railways for the first time on the 30th March, 1957, followed by a reminder on the 4th June, 1957, and a second reminder on the 13th September, 1957. No reply was given by the railways to any of these letters. The notice under Section 80 of the Code of Civil Procedure was sent on the 7th November, 1957, and a reminder on the 11th November, 1957. For the first time, the railway sent a reply on the 8th March, 1958, repudiating the claim, and the suit was instituted on the 28th April, 1958. On these admitted facts, Mr. Bose contended that the suit was barred by limitation. Article 30 of the Limitation Act speaks of a claim against a carrier for compensation for "losing or injuring goods", and the period of limitation prescribed is one year from the date when the loss or injury occurs. Article 31 deals with the claim against a carrier for compensation for "non-delivery" of goods, and the period of limitation is one year from the date when the goods ought to be delivered.
It was conceded at the bar that, if the claim of the plaintiff be treated as a claim under the Railways Act, then Article 31 would apply. It was held by a decision of the Supreme Court in Boota Mal v. Union of India, AIR 1982 S C 1716 that the words "when the goods ought to be delivered" occurring in Article 31 mean that the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case, and there could be no question of estoppel in the matter of the starting point of limitation because of any correspondence carried on between the carrier and the person whose goods are carried. But if the correspondence discloses anything which may amount to acknowledgement of liability of the carrier, that will give a fresh starting point of limitation. As the goods were booked at Betul railway station, somewhere near Bombay, and they were to be carried to Ranchi, a period of one month at the most can be safely taken as the reasonable time when the goods ought to have been delivered. The starting point of limitation in the instant case would, therefore, be the 21st June, 1956, or by the end of June, 1958. But the suit was instituted about two years after this date, i. e., on the 28th April, 1958, and, therefore, it is time-barred under Article 31 of the Limitation Act.
It may be mentioned in this connection that, though in paragraph 4 of the plaint it is said that hopes were always held out by the railways for effecting delivery till the 2nd April, 1957, there is no evidence to support this allegation. The appellant produced copies of its letters issued from time to time to the railways. The first letter is Ext. A (4) dated the 30th March, 1957, and it was said therein that, inasmuch as the goods had not been delivered till then, the railways should compensate the loss of Rs. 13,250 suffered by the plff. for non-delivery of the pumps. In the first reminder dated the 14th June, 1957 (Ext A (3)), the plaintiff invited the attention of the railways to the above letter and requested for payment of the compensation of the said sum at the earliest convenience of the railways. The second reminder dated the 13th September, 1957 (Ext. A (2)), is to the same effect. Nothing was said in any of these letters of any hope given to the plaintiff by the railways; and in fact no reply was ever sent on behalf of the railways to any of these letters. For the first time, hopes having been held out for effecting delivery on the 4th June, 1957, find mention in the notice under Section 80 of the Code of Civil Procedure (Ext. 3), and a reminder in respect of this notice was given on the 11th November, 1957.
None of the letters aforesaid, nor the oral evidence adduced on behalf of the plaintiff speaks of any hope having been given for effecting delivery on the 4th June, 1957. Satrughan Tiwari (P. W. 3), another employee of the plaintiff, who had been entrusted to take delivery of the goods at Ranchi, merely said that he had gone with the railway receipt to the goods-clerk of the Ranchi railway station on several occasions and the goods-clerk used to endorse his signature on it in proof of the fact that the goods in question were not received at the station. Hence, there is no correspondence between the parties which would postpone the commencement of the starting point of limitation after the reasonable time from the date of despatch had elapsed.
6. Mr. R. S. Chatterji who appeared for the appellant frankly stated that there was no escape from the bar of limitation, if the claim of the plaintiff be based on the provisions of the Railways Act. He, however, contended that it was a suit for compensation on account of conversion by the railways and it would be governed by Article 48 of the Limitation Act. This Article provides that a suit for specific move-able property lost or acquired by conversion shall be instituted within three years from the date when the person having the right to the possession of the property first learns in whose possession it is. In support of his argument, he relied on the fact that the railways had not proved that the goods were auction sold for Rs. 200 in accordance with the railway rules. In their reply dated the 8th March, 1958, the railways said that owing to failure of the plaintiff's timely preferment of claim, no proper action could be taken to trace out the consignment; subsequently the same was traced out when it was already sold by public auction for Rs. 200 only; and that the railways were arranging for payment of the above sale proceeds, about which the plaintiff would be advised shortly. But no further action was taken by the railways, apparently because the present suit was instituted by the plaintiff.
In paragraph 11 of the written statement the South Eastern Railway said that, inasmuch as the crates were found unmarked and unidentified at Bhojudih Railway station, the consignment remained unconnected and was subsequently auction sold at Rs. 200 as per railway rules. During the pendency of the suit the plaintiff filed a petition and a notice under order 12, Rule 8 of the Code of Civil Procedure on the 2nd July, 1959. In the notice the plaintiff requested the railways to produce the original notice under Section 80 of the Code dated the 7th November, 1957, as also the letters sent by the plaintiff on the 30th March, 1957, the 4th June, 1957, the 13th September, 1957 and the 11th November, 1957, besides the forwarding note executed for the consignment at Betul and the Ranchi Railway station delivery books and Registers showing copies of letters and telegrams sent by the station authorities making enquiries for the consignment for expediting delivery to the plaintiff. Mr. Chatterji conceded that the railway authorities had complied with this notice and that none of these documents was of any help to the plaintiff in view of the admission of the railways that the consignment could not be connected, when it was unloaded at Bhojudih and, consequently, it was sold. But Mr. Chatterji relied on the petition dated the 2nd July, 1959, in which the plaintiff requested the Court to direct the railways to make a full and complete disclosure of all evidence, as required by Section 74D of the Railways Act.
The Court did pass an order directing the railway to make a full and complete disclosure of the evidence as required by this section. This section speaks of the burden of proving misconduct where goods are carried at owner's risk rate and are not delivered to the consignee or are pilfered in transit. The relevant portion of this section requires the railway administration to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie On the consignor. This section, which was introduced in 1950 in the Railways Act, replaces the proviso of two Clauses (a) and (b) which occurred in the revised risk Note Form B. It was provided therein that in cases of non-delivery of the whole of a consignment or of the whole of one or more packages forming part of such consignment and in cases of pilferage from a package or packages forming part of such consignment when that was pointed out to the servants of the railway administration on or before delivery, the railway administration was bound to disclose to the consignor how the consignment was dealt with by it while it was in its possession or control "and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct" of the railway administration's servants.
If misconduct on the part of the railway administration or its servants could be fairly inferred from such evidence, the consignor need do nothing further, as he had proved his case. But if misconduct could not be fairly inferred from such evidence, then the burden of proving it, even in these cases of non-delivery and pilferage, was upon the consignor. The position is substantially the same under the present section subject to this difference, (1) that the words ''and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct" have now been omitted by the Legislature and (2) the railway administration will now be responsible even if negligence on its part or of any of its servants apart from their misconduct can be fairly inferred from its disclosure. Under Section 74 as well as under the proviso mentioned in the Risk Note B the railway administration was not bound to disclose in the case of non-delivery of the whole of a consignment or the whole of any package forming part of it if such non-delivery is proved by it to have been due to any accident to the train or to fire; and also in the case of non-delivery of a part of a consignment or of any package if its covering or protection was readily removable by hand or if it is not pointed out to the railway administration on or before delivery that it has been pilfered in transit.
7. In Surat Cotton Spinning and Weaving Mills, Ltd. v. Secretary of State, 64 Ind App 170 : (A I R 1937 P C 152), the Privy Council laid down the proper procedure to be followed in the case of a consignment despatched under the Risk Note in Form B. The procedure, in short, was that the railway administration must first make the necessary disclosure, and if the consignor is not satisfied with or is doubtful as to the accuracy or truth of the information disclosed and wants evidence, then the railway administration must be the first to submit their evidence at the trial. If the consignor is satisfied that full disclosure has been made, then he must discharge the onus upon him, and he can do it either by showing that misconduct may be inferred from the evidence led by the railway administration, or the disclosure made by them, or he may in his turn affirmatively lead evidence which establishes misconduct. That is one possible course. If, on the other hand, he is not satisfied with the disclosure made, then it is his duty to call upon the railway administration for further and better disclosure, or evidence. If he does so, then it will be for the Court to decide whether his demand has or has not gone beyond the obligation which lies upon the railway administration under the proviso.
If the Court holds that his demand for further proof is not justifiable, then of course the railway administration need not disclose anything more, and there can be no inference against them from that fact. The plaintiff still has to discharge his burden. But, if the Court holds that the demand is reasonable and in spite of the Court's direction the railway administration does not disclose the further particulars called for, then the presumption under Section 114 (g), Evidence Act which fays that a presumption may be drawn that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, will come into operation, and the plaintiff may call upon the Court to draw an inference of misconduct upon the basis of that presumption alone. But, if the railway administration has made the further disclosure and no inference can be drawn from the evidence disclosed, then the burden still lies upon the plaintiff, and he has to discharge it before he can succeed. The same procedure should, therefore, be adopted in cases' to which Section 74D applies.
In the instant case, the Court directed the railways to make full and complete disclosure of all evidence as required by the said section; but admittedly they did not comply with this direction of the Court, and, therefore, there is no evidence on the record to support the allegation of the railways that the goods were auction sold in accordance with the relevant railway rules. Mr. Chatterji was, therefore, justified in contending that a presumption should be drawn against the railways under Section 114 (g) of the Evidence Act that the evidence, if produced by the railways, would be unfavourable to them, and the Court should draw an inference of misconduct on the basis of this presumption alone. Mr. Bose, however, submitted that, inasmuch as the plaintiff's petition dated the 2nd July, 1959, did not mention any particular document or evidence and there was a general prayer in the petition for a full and complete disclosure, as required by Section 74D, no presumption or inference should be drawn against the railways. In this connection, he relied on order 11, Rule 12 of the Code of Civil Procedure which provides for an application by a party for discovery of documents from any other party to the suit. It is well-settled that discovery of documents cannot be allowed under this rule on a fishing application; precision and description of documents sought to be discovered are necessary.
But Section 74D is independent of the above rule of the Code, and it requires the railway, in case of non-delivery of goods, to disclose how the consignment was dealt with throughout the time it was in possession or control of the railway administration. Hence, the plaintiff could not have known the specific documents in the custody of the railway administration which could show how the consignment was dealt with throughout this period, and the railway administration was bound to produce all the relevant documents, when the Court below directed it to make a full and complete disclosure, as required by Section 74D. On account of the railway administration's failure to do so, it must be held that it has failed to prove that the consignment in question was sold at a public auction in accordance with law; and, therefore, an inference about the loss of the goods to the owner on account of the misconduct of the railway servants must be drawn. But all these arguments of Mr. Chatterji would help the plaintiff appellant only if the suit be deemed to be one under the provisions of the Railways Act. The appellant cannot take advantage of these presumptions and inferences against the railway administration in a case based on tort for conversion of the goods by the railways; and if the suit be deemed to be based on the provisions of the Railways Act, Article 31 of the Limitation Act would stand in the way of the appellant.
8. Mr. Chatterji relied on a decision of a Bench of this Court in Sundarji Shivji v. Secretary of State, ILR 13 Pat 752 : (AIR 1934 Pat 507). It was held there that, (1) unless the auction sale is conducted with the formality provided by Section 55 of the Railways Act, the railway is not protected from what is a tortious act notwithstanding that they have a right to detain goods, and a person whose goods are lawfully detained can justly claim damages if the goods are wrongfully sold; (2) Section 77 of the Act, which refers to the special liability of the carrier as such, has no application to the broad liability of the railways as tort-feasors quite apart from their position of railway carriers; and (3) Article 48 of the Limitation Act applies to the case of conversion. A perusal of the decision, however, shows that the suit, out of which that case arose, was framed as a suit for compensation for conversion of the goods wrongfully sold. In the instant case, the railway has failed to prove that the provisions of Section 56 of the Act for disposal of unclaimed goods in accordance with the relevant rules were complied with. But the aforesaid decision cannot apply to the instant case, as the claim for compensation is not based on tort for conversion, but for non-delivery, of the goods.
Neither in the plaint of the suit, nor in the grounds of appeal in this Court, nor in the letters and notices sent by the plaintiff to the railways, there is anything to indicate that the claim was made on account of conversion. In paragraph 4 of the plaint, it is clearly stated that the plaintiff treated the case as that of non-delivery. The contents of the notice under Section 80 of the Code dated the 7th November, 1957, are similar; and even the petition dated the 2nd July, 1959, in which the railway administration was required to make a full and complete disclosure of all evidence as required by Section 74D of the Railways Act points to the same effect. Hence, there is no escape from the conclusion that it was not a suit for compensation for conversion of goods; rather, it was a suit for compensation for non-delivery of goods based on the provisions of the Railways Act. Had the plaintiff based his claim for damages in tort, the railways would have adduced evidence to show absence of any wrongful act on the part of their servants. If, therefore, the plaintiff is allowed to take this new plea at this stage, the respondents will be at a disadvantage inasmuch as this plea requires further investigation of facts. This plea cannot, therefore, be entertained and the suit as framed must be deemed to have been time-barred under Article 31 of the Limitation Act.
9. Mr. Bose further submitted that Section 77 was also a bar to the claim of the plaintiff. This section, as it stood in 1956 and 1957, required the person entitled to compensation for the loss, destruction or deterioration of goods by the railway to prefer the claim in writing within six months from the date of delivery of the goods for carriage by railway; that is, in the instant case, within six months from the 21st May, 1956 when the goods were booked at Betul Railway station for carriage. The period of six months expired on the 21st November, 1956, and the plaintiff wrote to the railway demanding compensation for the first time on the 30th March, 1957. The learned Subordinate Judge, however, held that the notice under Section 77 of the Act was not at all necessary, because non-delivery of the pumping sets in question will not be said to have been caused due to loss of the same by the railway administration; and he relied on certain decisions of this Court.
But those decisions were given before the decision of the Supreme Court in Governor-General in Council v. Musaddi Lal, A I R 1961 S C 725 summarised in the placitum reproduced below :
"Section 77 is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by Section 72. The liability declared by Section 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression, 'loss, destruction or deterioration', what is contemplated is loss or destruction or deterioration of the goods and the consequent loss of the owner thereof. If because of negligence or inadvertence or even wrongful act on me part of the employees of the railway administration, goods entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by Section 72 of the Railways Act.
"Because Articles 30 and 31 of the Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either article is not for compensation for loss, destruction or deterioration of the goods. It is not possible to project the provisions of Articles 30 and 31 of the Urn. Act upon Sections 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of goods does not fall within Section 77."
It was held clearly by their Lordships of the Supreme Court that a notice under Section 77 of the Railways Act is required even in the case of a claim for compensation for the loss of goods to the owner thereof, because of non-delivery of the same for any reason whatsoever. In view of this decision, the contention of Mr. Bose in respect of the bar of Section 77 must also prevail.
10. In view of the findings that the suit is barred by limitation as also for want of notice under Section 77 of the Railways Act, the plaintiff is not entitled to a decree even for the sum of Rs. 200/-, which was fetched at the auction sale. It is true that, in their letter (Ext. A) dated the 8th March 1958, the railway administration said that arrangements were being made for the payment of the sale proceeds to the plaintiff; but the Court has no power to grant a decree even for this sum in view of the aforesaid legal bars. The Court, however, expects the railway administration to keep their promise contained in Ext. A and pay the sale proceeds to the plaintiff.
11. In the result, the suit must fail and it is dismissed. The appeal is, therefore, dismissed and the cross-objection is allowed; but the parties will bear their own costs throughout in the circumstances.
Bahadur, J.
12. I agree.