Patna High Court
Union Of India (Uoi) vs Firm Balwant Rai Bansidhar And Anr. on 13 March, 1957
Equivalent citations: AIR1958PAT536, AIR 1958 PATNA 536
JUDGMENT K. Sahai, J.
1. Defendant No. 1, the Union of India, as owner of the North-Eastern Railway has presented this appeal. The suit out of which it arises was instituted for recovery of the price of ten bags of flour as well as ten empty bags, besides damages.
2. The Munsif who tried the suit dismissed it, and one of the findings to which he arrived was that the plaintiff had not served notice upon defendant No. 1 as required under Section 77 of the Indian Railways Act. On appeal the learned Additional Subr ordinate Judge held that it was not necessary for the plaintiff to serve notice as required under Section 77 upon defendant No. 1. On this finding, he allowed the appeal, and decreed the plaintiffs suit in part.
3. The only point which Mr. P. K. Bose has taken on behalf of the appellant is that the learned Additional Subordinate Judge committed an error of law in holding that, in the circumstances of this case, the plaintiff was not required to serve a notice upon defendant No. 1 under Section 77 of the aforesaid Act. That, therefore, is the only point which arises for consideration in this appeal.
4. Section 77 of the Railways Act provides that a person must put his claim of compensation on the ground of loss, destruction or deterioration of the goods to the railway administration within six months from the date of delivery of those goods for carriage by the railway. It is, however, well settled, so far as this Court is concerned, that, where a plaintiff bases his claim on the ground of non-delivery and not on the ground of loss, destruction or deterioration of the goods, he is not required to serve a notice upon the railway administration as provided for in Section 77. I may refer, in this connection, only to two decisions of this court: they are Jaisram Ramrekh Das v. G. I. P. Rly. Co., ILR 8 Pat 545: (AIR 1929 Pat 109) (A) and Dominion of India v. Hazari Lal, 30 Pat LT 280: (AIR 1949 Pat 410) (FB) (B). In the latter case, Manohar Lall, J., who was a member of the Full Bench, observed as follows:
"But I desire to emphasise that, so far as the Patna High Court is concerned, it is now our settled practice which has prevailed for more than twenty years that in the cases where the plaintiff's suit is based upon non-delivery of the goods, he is not required to give a notice under Section 77."
Mr. Bose has admitted that the plaintiff firm has, in this case, framed its suit and has based its claim on non-delivery; but he has contended that the plaintiff's allegations in paragraph 7 of the plaint lead to an inference that the ten bags of flour, which were consigned to it, were actually lost due to the negligence of the railway administration. On this fact, he has founded the argument that, loss of the goods being admitted by the plaintiff, the case is one in which the plaintiff had to give a notice under Section 77. In support of his argument, he has drawn my attention to the decisions in the cases of Puras Das v. E.I. Rly. Co., ILR 8 Pat 718: (AIR 1927 Pat 234) (FB) (C) and 30 Pat LT 280: (AIR 1949 Pat 410) (FB) (B).
5. It is necessary to mention some of the facts of this case in order to appreciate Mr. Bose's arguments. On 25-2-1948, ten bags of flour were booked at Marufganj, and the consignment was to be delivered to the plaintiff firm at Dalsingsarai. When delivery was to be taken on behalf of the plaintiff, it was found that the consignment consisted of ten bags of husk instead of 10 bags of flour. The plaintiff firm, therefore, refused to take delivery. It has alleged in the plaint that it entered into correspondence with the Traffic Manager who directed it to take open delivery through the Traffic Inspector, Darbhanga, but the bags were not delivered to it because they were found even by the Traffic Manager to contain husk. It has further alleged that it has suffered loss due to non delivery of the commodities consigned to it. In paragraph 7 of the plaint, it has stated as follows :
"That, as a matter of fact, the railway servants had been grossly negligent in their duty in directly or indirectly participating in the said change and conversion causing loss to the plaintiff and the defendant No. 1 are legally bound to reimburse the plaintiff to the extent of the loss sustained."
Mr. Bose has made the submission that, in using the words "change and conversion,'' the plaintiff has impliedly alleged that the goods were lost from the possession of the railway administration. It appears from the judgment of Dawson-Miller C.J. in ILR 6 Pat 718 : (AIR 1927 Pat 234) (FB) (C) that the plaintiff had, in that case, also, claimed compensation on the ground of non-delivery.
As, however, the plaintiff in that case alleged that "he came to know that the goods had been lost owing to negligence on the part of the servants of the defendants" and later referred to the fact that two bales "were not found," Dawson-Miller, C. J. held that onus to prove loss of the goods did not lie upon the defendants as the loss had been admitted by the plaintiff. The decision of a Majority of the Judges forming the Full Bench was, therefore, that the appeal should be dismissed. In 30 Pat L.T. 280: (AIR 1949 Pat 410) (FB) (B) also, the plaintiff had laid his claim on the basis of non delivery but had alleged, in paragraph 5 of the plaint, that the goods in question had been lost through the negligence of the railway administration.
Their Lordships, who decided that case, therefore, held that the case should have been treated as one based upon the allegation of loss and hence it was necessary for the plaintiff to serve notice under Section 77 of the Railways Act on the defendant.
6. While there can he no doubt on the authority of the two decisions, which I have just referred to, that the plaintiff must serve a notice under Section 77 upon the defendant, if he admits that the goods in question have been lost, the question which arises for consideration in this case is whether the words used by the plaintiff in paragraph 7 can be interpreted to be an admission of loss of the goods consigned. It is not a case where no goods were offered for delivery at all to the plaintiff.
It is a case in which valueless material like husk was offered to it for delivery, though flour was consigned to it. The plaintiff could not, therefore, stop after saying that delivery of the goods consigned to it had not been made. It had to say that something different from the goods consigned was offered for delivery to it. The fact, therefore, that it has stated that there was a change and conversion in the goods means merelv that husk was being offered to it as substitute for flour, and it, therefore, did not take delivery.
It has not made any allegation about whether the atta consigned to it remained in the possession of the railway administration or was misplaced or lost. In these circumstances, it is clear that it has not made an admission, as the plaintiff in the cases of AIR 1927 Pat 234 (FB) (C) and AIR 1949 Pat 410 (FB) (B) had made, that the goods had been lost. The principle laid down in those cases has, therefore, no application to the facts of this case.
7. As the plaintiff has claimed in the present case on the basis of non-delivery and as the settled law, so far as this Court is concerned, is that a notice under Section 77 is not necessary if a suit is so framed unless there is an admission of loss, I hold that no notice under Section 77 was necessary in this case. It is, therefore, clear that the learned Subordinate Judge has not committed any error of law in holding that, in spite of non-service of notice under Section 77, the plaintiff was entitled to succeed in its suit.
8. I hold in the result that there is no merit in this appeal. It is, therefore, dismissed with costs.