Allahabad High Court
Union Of India vs Awadhesh Kr.Agarwal on 20 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 801
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.03 Case :- SECOND APPEAL No. - 540 of 1991 Appellant :- Union Of India Respondent :- Awadhesh Kr.Agarwal Counsel for Appellant :- S.N.Agarwal,Devendra Tripathi Counsel for Respondent :- Dhan Prakash,Rakesh Kumar Garg Hon'ble Ajay Bhanot,J.
1. This second appeal arises out of the judgment and decree dated 23.11.1990 rendered in Civil Appeal No. 03 of 1987, Awadhesh Kumar Agarwal Vs. Union of India and another, by learned Special Judge, Essential Commodities Act, Etah, which reverses the judgment and decree of the learned trial court/ learned Additional Civil Judge, Etah in Original Suit No. 15 of 1984, (Awadhesh Kumar Agarwal Vs. Union of India and another), dated 05.08.1986.
2. The instant second appeal has been instituted by the defendants in the civil suit.
3. The plaintiff-respondent brought civil proceedings, registered as Original Suit No. 15 of 1984, (Awadhesh Kumar Agarwal Vs. Union of India and another), seeking compensation for damage caused to goods by the negligence of the Railway authorities. The learned trial court by judgment and decree dated 05.08.1986 had dismissed the suit of the plaintiff on the foot that the notice dated 21.07.1981 sent by the plaintiff, under Section 78B of the Indian Railways Act, 1890, was not served upon the Railway authorities within the time stipulated under the said provision.
4. The plaintiff took the judgment and decree of the learned trial court in appeal. The appeal was registered as Civil Appeal no. 03 of 1987, Awadhesh Kumar. Vs. Union of India and another.
5. The only point formulated for determination and argued before the learned first appellate court was whether the notice under Section 78B of the Indian Railways Act was lawful and within the statutory time limit prescribed in the provision. The findings of the appellate court are set forth hereinafter.
6. The learned appellate court in its judgment took judicial notice of the fact that a telegram is delivered within 24 hours of its dispatch. If the distance between the two places, namely, place of dispatch and the point of receipt is very far, at the outside the telegram will be received by the addressee within 48 hours.
7. Admittedly, the telegram was sent by the plaintiff on 21.07.1981. Six months period from the date of delivery of the goods for carriage to the railways, were set to expire on 25.07.1981. The appellate court noticed the statement on oath given by the plaintiff in regard to timely service of the telegram and also the failure of the defendant-appellant to refute the same. The appellate court then opined that in the normal course of things, the telegram would reach its destination within 24 hours after the same was booked for dispatch by the plaintiff-respondent. There was no reason to take a different view in this case.
8. The endorsement made by the railway employees of the Gorakhpur Office of the Railways on the telegram that the same was received on 28.07.1981, was disbelieved by the learned appellate court. The learned appellate court found against the Railways (defendant-appellant), that on the basis of such endorsement, it cannot be concluded that the telegram did not reach its destination in the time.
9. Consequently, the learned appellate court found that it cannot be said that the plaintiff did not submit his claim within time.
10. The learned appellate court then delved into the legal obligations of the postal authorities, after a telegram is submitted to them for dispatch. The Posts and Telegraph Departments became responsible for timely dispatch of the telegram after the signature and deposit of prescribed expenses for telegraph services. In light of such legal obligations of the postal authorities also the plaintiff cannot be fastened with for delay on the part of the postal authorities.
11. The learned appellate court finally concluded that the date on which the letter were delivered to the postal department for dispatch, along with the prescribed expenses would be the date of service of the notice for the claim. The plaintiff-respondent had delivered telegram for dispatch after payment of prescribed expenses on 21.07.1981. Hence, it would be presumed that the claim was also submitted by the plaintiff on like date i.e. 21.07.1981, which was well within the statutory time limit for the notice.
12. The contents of the notice were also noticed by the learned appellate court. The telegraphic communication records the date and number of the Bilti. The consignment of goods was identified with full particulars in the notice. The amount of loss and the demand /claim of compensation is also stated in the communication sent by the telegram.
13. After looking to the said recitals in the telegram, the learned first appellate court found that the substance of the claim for compensation was mentioned in the telegram. In this manner, the telegram satisfied the ingredients of Section 78B of the Indian Railways Act.
14. In the wake of these enquiries, the first appellate court found that the claim sent by the plaintiff-respondent was within prescribed time and the notice conformed to the requirements of Section 78B of the Indian Railways Act, 1890.
15. The learned first appellate court allowed the appeal of the plaintiff and set aside the judgment and decree dated 05.08.1986 of the learned trial court. The suit of the plaintiff for Rs. 9,740.50/- along with costs was decreed in favour of the plaintiff-appellant by the learned appellate court.
16. Aggrieved by the judgment of the learned appellate court, the defendant-respondent, namely, Union of India, instituted the instant second appeal before this Court.
17. Shri Devendra Tripathi, learned counsel for the appellant submits that the learned first appellate court erred in law and misinterpreted the provisions of Section 78B read with Section 140 of the Indian Railways Act, 1890. Learned counsel for the appellant contended that on account of such incorrect interpretation, the notice which was ineffective and time barred was found to be valid and within time prescribed by the first appellate court.
18. Shri Rakesh Kumar Garg, learned counsel for the respondents submits that all the ingredients of Section 78B were satisfied. The contents of notice were consistent with Section 78B of the Indian Railways Act, 1890. Further the notice was within time and cannot be held to be outside the period of limitation.
19. The learned counsels for both the parties agree that the following substantial question of law arises for consideration in appeal:
"1. Whether the notice dated 21.07.1981 conformed to the requirements of Section 78B of the Indian Railways Act and was served within the time stipulated therein, and in a manner provided in the said provision read with Section 140 of the Indian Railways Act, 1890?"
20. A claim to compensation for loss caused by the Railways has to be preceded by a notice of such claim under Section 78B of the Indian Railways Act, 1890 (as amended from time to time) to the competent authorities described in the aforesaid provision. The service of such notice has to be made in the manner provided under Section 140 of the Indian Railways Act, 1890.
21. Thus, the combined reading of Section 78B and Section 140 of the Indian Railways Act, 1890 (as amended from time to time), provides the conditions precedent and the statutory scheme for instituting and processing of claims to compensation for losses. Section 78B provides for the notice in the following terms:
"78B. Notification of claims to refunds of overcharges and to compensation for losses. 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, damage, deterioration or non-delivery of animals or goods delivered to be carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf
(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or
(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carriage by railway :
Provided that any information demanded or inquiry made in writing from, or any complaint made in writing to, any of the railway administration mentioned above by or on behalf of the person within that said period of six months regarding the non-delivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation."
22. The purpose of the notice contemplated under Section 78B of the Indian Railways Act, 1890, is to enable the Railway authorities to make an expeditious and meticulous enquiry into the nature and bonafides of the claim for compensation. This enquiry would aid the Railway authorities in determining whether the loss for which compensation is being claimed was occasioned by negligence of the Railway employees or agents of the Railways and the extent of the responsibility of the Railways to pay such compensation.
23. A specific time period prescribed in Section 78B of the Indian Railways Act, 1890, for a notice for compensation, would prevent stale claims from being raised to the detriment to the Railway authorities. The Railway authorities will be hard put to entertain claims submitted after inordinate delay as evidence would be lost to time and remembrance.
24. A bonafide claim would also encourage resolution of disputes without recourse to frivolous litigation. There is a strong public interest element involved in this provision. Fictitious claims and frivolous litigation make an unnecessary drought on the time of the courts and are a drain on the public exchequer.
25. The purpose of the notice is not to deprive a bonafide claimant of his/her legitimate claim but to assist the process of determining both the correctness and the quantum of such claim. The provision also offers a protection to the Railways against fraudulent claims.
26. In this wake, the notice under Section 78B of the Indian Railways Act, 1890, has to be construed in a liberal manner and a pedantic approach has to be eschewed. The effective service of the notice in the time period stipulated in the statute, is of course a mandatory requirement before Courts can consider the claim on its merits.
27. The fundamental ingredients of such a notice, as set out under Section 78B of the Indian Railways Act, 1890, is that the claim should be preferred in writing. The section also requires that claim must be preferred strictly within the time period mentioned in it. The notice should contain a claim for damages. There is no requirement for a specific sum for compensation to be denoted in the notice. The notice has to be served upon the competent authority described in the provision.
28. At this stage, it is pertinent to mention here that Section 78B of the Indian Railways Act, 1890, was inserted by amending Act No. 39 of 1961 in the Indian Railways Act, 1890. The corresponding old section or precursor of Section 78B of the Indian Railways Act, 1890, was Section 77 which ran as follows:
"77. Notification of claims to refunds of overcharges and to compensation for losses. 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, damage, deterioration or non-delivery 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 his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway."
29. A perusal of amended Section 78B of the Indian Railways Act, 1890, and its precursor Section 77 of the Indian Railways Act, 1890, shows the nature of the notice in both the provisions essentially remains the same. The amendments in regard to the notice made under Section 78B of the Indian Railways Act, 1890, only provide for certain additional railway authorities to whom the notice is to be preferred and also incorporates communications which are deemed to be valid notices under Section 78B of the Indian Railways Act, 1890.
30. The scope and purpose of Section 77 of the Indian Railways Act, 1890, discussed in the preceding part of the narrative, finds support in authority of old standing. The authority can be safely applied to this case as well.
31. The Hon'ble Supreme Court in Jetmull Bhojraj Vs. Darjeeling Himalayan Railway Co. Ltd. and Others, reported at AIR 1962 SC 1879, considered the scope of the notice under Section 77 of the Indian Railways Act, 1890. In Jetmull Bhojraj (supra), the Hon'ble Supreme Court consolidated and distilled the authorities handed down by the various High Courts in regard to the requirements of a notice under Section 77 of the Indian Railways Act, 1890. Being in agreement with such authorities, adopted the same in their entirety by holding thus:
"20. The first question to which we address ourselves is whether the appellant had complied with the requirements of Section 77 of the Railways Act. The relevant portion of that section reads thus:
"A person shall not be entitled to compensation for the loss, destruction or deterioration of goods delivered to be so carried unless his claim to compensation has been perferred in writing by him or on his behalf to the Railway administration within six months from the date of the delivery of the goods for carriage by railway."
The High Courts in India have taken the view that the object of service of notice under this provision is essentially to enable the Railway administration to make an enquiry and investigation as to whether the loss, destruction or deterioration was due to the consignor's laches or to the wilful neglect of the Railway administration and its servants and further to prevent stale and possibly dishonest claims being made when owing to delay it may be practically impossible to trace the transaction or check the allegations made by the consignor. In this connection we may refer to a few of the decisions. They are: Shamsul Huqv. Secretary of State [ILR 57 Cal 1286] ; A. Mahadeva Ayyar v. S.I. Railway [R 45 Mad 135 (FB)] ; Governor-General-in-Council v. Gouri Shankar Mills Ltd., [ILR 28 Pat 178 FB] ; Meghaji Hirajee & Co. v. Bengal Nagpur Railway [(1939) Nag 141] . Bearing in mind the object of the section it has also been held by several High Courts that a notice under Section 77 should be liberally construed. In our opinion that would be the proper way of construing a notice under that section. In enacting the section the intention of the legislature must have been to afford only a protection to the Railway administration against fraud and not to provide a means for depriving the consignors of their legitimate claims for compensation for the loss of or damage caused to their consignments during the course of transit on the Railways."
32. The mode of service of notice on railway administration is provided under Section 140 of the Indian Railways Act, 1890. The provision being relevant to the controversy is extracted hereunder:
"140. Service of notices on railway administration. Any notice or other document required or authorised by this Act to be served on a railway administration may be served, in the case of a railway administered by the Government, on the Manager or the Chief Commercial superintendent and, in the case of a railway administered by a railway company, on the Agent in India of the railway company--
(a) by delivering the notice or other document to the Manager or the Chief Commercial Superintendent or Agent; or
(b) by leaving it at his office; or
(c) by forwarding it by post in a prepaid letter addressed to the Manager or the Chief Commercial Superintendent or Agent at his office and registered under the Indian Post Office Act, 1898 (VI of 1898)."
33. A combined reading of Sections 78B and 140 of the Indian Railways Act, 1890, show that no exclusive mode for service of notice has been provided in the statute. The service can be made by multiple modes as described in the said provision.
34. The phrase "may be served" in Section 140 of the Indian Railways Act, 1890, manifests the permissive intent of the legislature in regard to the mode of service and conferment of the option of choosing the mode of service upon the claimant.
35. Section 140(a) of the Indian Railways Act, 1890, contemplates service of notice "by delivering the notice" to the competent officials named therein. Section 140(b) of the Indian Railways Act, 1890, visualises service "by leaving it at his office". The amplitude of the provision allows service to be made in diverse forms. The claimant may adopt any of the methods of service according to his preference. However, the fact of effective service is an imperative requirement.
36. Clearly the legislature accords primacy to the fact of effective service of notice over the method of service.
37. The view taken by by this Court in regard to the scheme of Section 140 read with Section 78B of the Indian Railways Act, 1890, can be reinforced by good authority.
38. A Full Bench of the Hon'ble Madras High Court in A. Mahadeva Aiyar Vs. The South Indian Railway Company, Limited, reported at AIR 1922 Mad 362 : 1921 SCC OnLine Mad 140, while considering the scope of Section 140 of the Indian Railways Act, 1890, held thus:
"12...Section 140 refers to three modes by which service may be effected, namely (1) delivery of the notice to the Manager or Agent personally, (2) leaving it at his office and (3) sending it by registered post. The second and third methods are not peisonal service but a person is relieved from further liability if he leaves the notice at the Agent's office or sends it by registered post, even if the notice for some reason does not actually come into the Agent's hands.. The object of the section is to see that the company gets notice and there is no magic in the methods provided for by the section to see that it reaches him, if as a matter of fact the notice comes into his hands. Supposing the plaintiff adopts the method of sending the notice by post without registration and the Agent admits receipt of the notice which is otherwise valid, there is no reason for holding that non-registration is such a vital defect that it invalidates the notice. The Code of Civil Procedure provides for modes of service of summons and notices. I do not think it can be said that where a party without objection receives and admits receipt of the summons or notice, he can fail to appear and plead the mode by which he received the process as an excuse.
So far as notices of action are concerned the substantial point is whether they reached the person to whom the law requires notice to be given; and the method by which he received it is a matter which is of comparative unimportance and a deviation from the methods prescribed in the section will in my opinion be only an irregularity."
39. The plaintiff chose the mode of service of notice by sending a telegraph. Notices or communications sent by telegraph, are covered under the Indian Telegraph Act, 1885, as well as the Indian Evidence Act, 1872. This mode of service clearly comes within the ambit of Section 140(a) and 140(b) of the Indian Railways Act, 1890.
40. The mode of service adopted by the plaintiff-respondent to serve the notice upon the appellant-respondent/railway authorities, was a lawful mode as contemplated under the Indian Railways Act,1890.
41. The learned appellate court has found that the notice contemplated under Section 78B of the Indian Railways Act, 1890, was served upon the competent authority on 21.07.1981. The last date of service of notice in terms of Section 78B of the Indian Railways Act, 1890, was 25.07.1981. The contents of the notice as recorded by the learned appellate court have been noticed earlier.
42. The above findings of fact returned by the learned first appellate court have been extracted in extenso in the earlier part of the narrative. The findings of fact are beyond reproach and are based upon material and the evidence in the record. These findings of fact are also supported with cogent reasons.
43. Applying the aforesaid findings of fact to the statutory scheme explained hereinabove, this Court finds that the notice for claim under Section 78B of the Indian Railways Act, 1890, was served upon the competent railway authority within the statutory period of six months from the date of the delivery of the consignment. The notice contained the demand for compensation as contemplated in the provision. The notice clearly identifies the goods with sufficient particulars to enable the railway authorities to undertake any necessary enquiry in that regard.
44. In this manner, the service of the notice upon the Railway authorities was valid and within the time period prescribed under Section 78B of the Indian Railways Act,1890. Further, the ingredients of a notice as required under Section 78B of the Indian Railways Act, 1890, are satisfied by the notice dated 21.07.1981 sent by the plaintiff-respondent.
45. The service of such a valid notice with the stipulated time period is a precondition for success of any claim for compensation. The service of a valid notice in the manner prescribed by law, has been established. The claim of the plaintiff-respondent for compensation is liable to be allowed and was rightly granted by the learned first appellate court.
46. The substantial question of law is answered as follows.
"The notice under Section 78B of the Indian Railways Act, 1890, contained the necessary ingredients in a valid notice for compensation and was also served in a lawful manner and within the time frame prescribed in Section 78B of the Indian Railways Act, 1890. The notice was fully consistent with the requirements of Section 78B read with Section 140 of the Indian Railways Act, 1890, and cannot be faulted in any manner."
47. The substantial question of law having been answered in favour of the plaintiff-respondent and against the appellant, the judgment and decree of the learned first appellate court is liable to be upheld.
48. The judgment and decree dated 23.11.1990 rendered by the learned Special Judge, Essential Commodities Act, Etah, in Civil Appeal No. 03 of 1987 (Awadhesh Kumar Agarwal Vs. Union of India and another) is affirmed.
49. The second appeal is dismissed.
Order Date: 20.01.2020 Dhananjai