Harnam Singh, J.:— The question that has been referred for decision to the Full Bench reads:—
“Whether in a suit against a railway administration for the value of goods delivered to the administration to be carried by railway, when the suit is based upon non-delivery of those goods, notice of claim is necessary in the manner provided by section 77 of the Indian Railways Act.?”
2. Briefly summarised the facts that have given rise to this reference are these. On the 18th of June, 1947, Babu Lal plaintiff and his wife purchased two railway tickets at Kalka railway station for journey from Kalka to Dharampore the by the North Western Railway, Kalka-Simla Section. The luggage of the plaintiff was delivered to the administration to be carried by rail to Dharampore and receipt No. 29-291, dated the 18th June, 1947, for two trunks and a bedding was given to the plaintiff. One trunk and a bedding was delivered to the plaintiff at Dharampore but the second trunk Was not delivered to the plaintiff. Lot of correspondence passed between the parties and on the 18th of August, 1948, Babu Lal plaintiff Instituted Small Cause Suit No. 75 of 1948 for the recovery of Rs. 199/5/- on account of the price of goods not delivered.
3. In deciding Small Cause Suit No. 75 of 1948 the Court of first instance found that notice of claim Under section 77 of the Indian Railways Act, 1890, hereinafter referred to as the Act, was not necessary, but dismissed the suit on the findings that the notice given under section 80 of the Code of Civil Procedure was defective and that the suit was instituted against a wrong defendant.
4. From the decree passed in Small Cause Suit No. 75 of 1948 Babu Lal plaintiff has come to this Court under section 25 of the Provincial Small Cause Courts Act, 1887.
5. In Civil Revision No. 304 of 1949 the defendant-Respondent has sought to maintain the decree passed in Small Cause Suit No. 75 of 1948 inter alia on the ground that the plaintiff had failed to give notice in the manner provided by section 77 of the Act.
6. In Janeshwar Lal Rajeshwar Lal v. Dominion of India . A.I.R 1951 Punjab 383., I have had occasion to determine a point identical with that raised in the order of reference. In that case I discussed the point in some detail and came to the conclusion that no notice is necessary to maintain a suit for compensation for short delivery if short delivery is not the result of loss. Indeed, the question referred to us for decision has been the subject-matter of decision in several cases in this and other High Courts. In some cases it was held that the term ‘loss’ occurring in section 77 of the Act means pecuniary or other loss suffered by the owner of the goods through being wrongfully deprived of the possession, use or enjoyment thereof, while in other cases it was held that the term ‘loss’ means loss of the goods by the railway administration while in transit. In cases where the term ‘loss’ was construed to mean pecuniary or other loss suffered by the owner of the goods it was said that notice was necessary to maintain a suit for compensation non-delivery, while in cases where the term ‘loss’ was construed to mean loss of the goods by the railway administration while is transit it was that no notice was necessary to maintain a suit for compensation for non-delivery if non-delivery was not the result of loss, destruction or deterioration of the goods. In these circumstance this reference has been made for cases of this nature are very frequent.
7. Chapter VII of the Act deals with the responsibilities of Railway Administrations as carriers. Section 72(1) of the Act states that the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872. Section 72(3) of the Act then states that nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility of a railway administration under section 72(1) of the Act. Section 77 of the Act provides:—
“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 or deterioration 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.”
8. Now, non-delivery may be due to the loss of the goods, or may be due to detention, misdelivery, conversion or wrongful sale of the goods. If so, non-delivery is not included in the term “loss” occurring in section 72 and 77 of the Act.
9. But it is said that there is no responsibility of the railway administration for non-delivery of the goods if non-delivery is not included in the term “loss” occurring in section 72 of the Act. The argument proceeds upon the fact that section 160 of the Contract Act dealing with the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, is not mentioned in section 72(1) of the Act. I do not accede to the argument raised for the reasons appearing hereinafter.
10. In the Act there is no express provision laying down the duty of the railway administration to return the goods consigned to the consignor or the consignee. But from that it cannot be inferred that a railway administration is not bound to deliver the goods to the consignor or the consignee. The obligation to return or deliver the goods is implied in the contract if carriage for reward. section 161 of the Contract Act read with section 72(1) of the Act provides that if by default of the railway administration, the goods are not returned, delivered or tendered at the proper time, the administration is responsible to the consignor for any loss, destruction or deterioration of the goods as from that time. That being so, from the mere omission of section 160 of the Contract Act in section 72(1) of the Act it cannot be inferred that it is not the duty of the railway administration to return or deliver the goods consigned. Clearly, it could not be the object of section 72(1) of the Apt to lay down that if the administration take the required amount of care for the preservation of the goods delivered to the administration to be carried by railway but does not return the goods to the consider the consignee, the administration can escape the liability by showing that the administration has taken the care of the good as required by law. The obligation to return or deliver the goods to the consignor or the consignee is implicit in section 72(1) of the Act read with section 161 of the Contract Act and a suit for compensation for non-delivery of the goods proceeds upon a breach of duty laid down inflection 160 of the Contract Act. From the preamble of the Act it appears that the Act consolidates, amends and adds to the law relating to the railways in India. If reference to sections 151, 152 and 161 of the Indian Contract Act section. 72(1) of the Act was intended to exclude the application of other sections of the Indian Contract Act in regard to bailment there would have been a reference to those other sections in section 72(3) of the Act. In Bhullan Mal-Asa Ram v. Secretary of State for India in Council . I.L.R 52 All. 126., Bennet and Iqbal Ahmed, JJ., said:—
“Section 72(1) of the Indian Railways Act lays down as follows:— “‘The responsibility, of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872.’ It will be noted that this sub-section deals with the responsibility of the Railway Company for loss, destruction or deterioration only. It does not exclude other sections on the Indian Contract Act in regard to bailment. If section 72 had intended to exclude those other sections, then there would have been a reference to those other sections in section 72(3) which says:— ‘Nothing in the common law of England or in the Carriers Act, 1865, regarding responsibility of common carriers with respect to the carriage of animals or goods shall affect the responsibility as in this section defined of a railway administration.’ It is only the liability of common carriers under the common law of England and under the Carriers Act of 1865 that is declared not to be applicable to railway companies. Accordingly we hold that the sections of the Contract Act dealing with bailment do apply to a railway company, except so far as they may be excluded by the Railways Act or rules made under that Act. One of these sections of the Contract Act is section 160, which runs as follows:—‘It is the duty of the bailee to return or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished’.”
11. In Bast Indian Railway Company v. Piyare Lal Sohan Lal . I.L.R 10 Lah. 360, the distinction between a suit based on non-delivery and a suit based upon loss was affirmed and I have no doubt that the nature of a suit for non-delivery is distinguishable from that of a suit for compensation for loss, destruction or deterioration.
12. That there is real distinction between non-delivery and loss receives statutory recognition in Articles 30 and 31 of Schedule 1 to the Limitation Act. Article 30 provides limitation for a suit against a carrier for compensation for losing or injuring goods and limitation for such a suit starts from when the loss or injury occurs, while Article 31 provides limitation inter alia for a suit against a carrier for compensation for non-delivery starting from the time when the goods are to be delivered. Article 31 was added in the Limitation Act in the year 1877 but notwithstanding the addition of Article 31 to the Limitation Act it was not considered necessary in 1890 to add the words “non-delivery, mis-delivery or detention” to sections 72 and 77 of the Act.
13. Then it is said that the word ‘loss’ occurring in section 77 of the Act means lots sustained by the owner of the goods and a suit for compensation for non-delivery of the goods is a suit for compensation for the loss of the goods. That this is not so is apparent from the juxtaposition of the words ‘loss’, destruction or deterioration’ in sections 72 and 77 of the Act for if the word ‘loss’ means loss sustained by the owner, the words ‘destruction or deterioration’ appearing in sections 72 and 77 of the Act are redundant.
14. That the term “loss” occurring in section 77 of the Act does not include “non-delivery” is apparent from section 76 of the Act which provides inter alia that in any suit against a railway administration for compensation for loss, destruction or deterioration of animals or goods delivered to a railway administration for carriage by railway, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused. In suits for compensation for non-delivery the plaintiff must plead non-delivery in the plaint. If so, no question of proving ‘loss’ by the railway administration arises in suits for compensation for non-delivery.
15. Sections 72, 73, 75 and 76 of the Act were amended by Act No. LVI of 1949. Section 77 of the Act dealing with notice was not amended. From what follows it appears that before Act No. LVI of 1949 was placed on the statute book there was a general agreement amongst the High Courts in India that no notice is necessary to maintain a suit for compensation for non-delivery when non-delivery is not the result of loss, destruction or deterioration. That being so, it is legit mate to presume that the Legislature has accepted the construction placed by the High Courts in India upon section 77 of the Act.
16. For the foregoing reasons, I hold that the term ‘loss’ occurring in section 77 of the Act does not include ‘non-delivery’.
17. In arguments Mr. Gurdev Singh based himself on Hill Sawyers and Co. v. Secretary of State . I.L.R 2 Lah. 133 F.B.. D.B Jiwandas v. Agent E.I Railway Co. . 19 N.L.R 139., Agent B.N, Rly Co. Ltd. v. Hamir Mull Chagan Mull . I.L.R 5 Pat. 106., Duni Chand Ram-sarandas v. Secretary of State . A.I.R 1931 Cal. 585., and Dominion of India v. Modi Sugar Mills Ltd. . 1950 A.L.J 41., while Mr. Mehr Chand Sud appearing for the plaintiff cited Haryana Cotton Mills Co., Ltd. v. B.B & C.I Railway . I.L.R 8 Lah. 555, Ram Lal v. B.N Railway Co. Ltd., Calcutta . A.I.R 1938 Nag. 21., The Governor-General in Council v. Kasiram . A.I.R 1949 Pat. 268., Governor-General in Council v. Sarbeswar Das . A.I.R 1949 Cal. 420., and Secretary of State v. F. Daulat Ram Makhan Lal . A.I.R 1937 All. 632..
18. In Haryana Cotton Mills Co. Ltd. v. B.B & C.I Rly. Co. Ltd., Calcutta, Fforde, J., (Campbell, J., concurring) declined to accept the definition of the term ‘loss’ given by Scot-Smith, J. in Hill Sawyers and Co. v. Secretary of State. Dealing with the same matter Campbell, J., said:—
“It seems to me that the case of the relation of section 77, Railway Act, to a suit for damages for non-delivery stands thus. A plaintiff who institutes such a suit without having preferred a claim in accordance with section 77 takes a considerable risk. In nine cases out of ten the railway comes into court and pleads that the goods have disappeared out of the Railway's sight or control, that they are lost and hence that the suit is barred by the provisions of section 77. This seems to have been the situation in all the cases cited before us in which it has been held that failure to give notice of the claim under section 77 bars a suit for compensation for non-delivery, and on the authority of those cases the plaintiff might very well fail in his action.
The present, however, is the tenth case where the Railway does not say either that the goods are lost or that they ever have been lost, even temporarily, where both parties are agreed that the goods have never been lost either by the Railway or to the consignee and where neither has alleged any deterioration of the goods. In such circumstances I cannot see that the terms of section 77 have any bearing upon the question whether the suit can lie or not.”
19. In Hill Sawyers and Co. v. Secretary of State. Abdul Raoof, J., did not accept the definition of the word ‘loss’ given by Scott-Smith, J., and thought that the Legislature contemplated by the employment of the word ‘loss’ something different and distinct from loss resulting from destruction or deterioration. That being so, no reliance can be placed upon the opinion of Scout-Smith, J., in Hill Sawyers and Co. v. Secretary of State.
20. In Ram Lal v. B.N Rly Co. Ltd., Calcutta Grille, J.C in repelling a similar contention said:—
“The issues then are simply whether notice under section 77, Railways Act, was necessary and whether Article 31 or Article 49, Limitation Act, applies. I am satisfied that in this case there was no necessity to serve a notice of the claim on the defendant-company. There is general agreement among the High Courts of India that such a notice is necessary only in the case of loss, damage or deterioration, as the wording of the section itself shows. A claim of non-delivery may entail the necessity of a notice where such non-delivery may be due to loss of the goods concerned, but I do not interpret the judgment in D.B Jiwarldas v. Agent E.I Rly Co., as applying to a case where it is common ground that there has been no loss, damage or deterioration.”
21. In construing section 77 of the Act Ramaswami. J., (Sinha, J., concurring) said in Governor-General in Council v. Kasiram:
“Non-delivery did not constitute ‘loss’ within the meaning of section 77 and no notice under that section was necessary in a suit for damages for non-delivery of a consignment.”
22. In deciding Governor-General in Council v. Kasiram the Court following Jaisram Ram Rehha Das v. G.I.P Rly . A.I.R 1929 Pat. 109., held that the word ‘loss’ in section 77 does not include non-delivery. Agent B.N Rly. Co. v. Hamir Mull Chagan Mull Was not followed in Jaisram Ram Rekha Das v. G.I.P Rly. Co..
23. In Governor General in Council v. Sdrbeswar Das, it was pressed before Harries, C.J, that section 77 does not apply to a case of short delivery. Finding that the proposition as urged before him was stated too broadly, Harries C.J, said:—
“Loss must not be presumed from short delivery but if short delivery is the result of loss then it appears that the authorities are clear that notice under section 77 must be served.”
24. In the clearest possible terms Harries, C.J, laid down in Governor-General in Council v. Sarbeswar Das, that section 77 has no application to a case of short delivery where the short delivery is not due to loss but section 77 will apply to a case where part of the consignment has been lost by the Railway Company in the process of carrying it from the point of loading to the point of unloading. In other words, notice under section 77 must be served when short delivery is the result of loss.
25. In Secretary of State v. Firm Daulat Ram Makhanlal. Sulaiman, C.J, and Bennet, J., said:—
“The next question which arises is in regard to notice. No notice was given in this case and the learned Government Advocate contended that notice was required. Under section 77, Railways Act, IX of 1890, notice is required in the case of a claim for compensation for loss, destruction or deterioration of goods. The present claim, however, is one for non-delivery or misdelivery and is not one for loss and we are satisfied that no notice was necessary in the present case although the rulings are somewhat conflicting on the point.”
26. Secretary of State v. Firm Daulat Ram Makhanlal was not considered by Misra, J., in the Dominion of India v. Modi Sugar Mills Ltd..
27. In my opinion, both on principle and authority, no notice is necessary to entitle a plaintiff to compensation for non-delivery of the goods delivered by him to the railway administration for carriage when non-delivery is not the result of loss, destruction or deterioration.
28. Before parting with this judgment I wish to mention that there appears to be no reason for excepting suits based on non-delivery from the operation of section 77 of the Act, but it is not for this court to sit in judgment upon what the Legislature has decided and to weigh the pros and cons of the policy which has induced the Legislature to exclude suits for compensation for non-delivery from the operation of section 77 of the Act.
29. For the reasons given above. I find the answer to the question referred for decision to the Full Bench to be in the negative.
30. Weston, C.J:— section 77 of the Indian Railways Act provides:—
“A person shall not be entitled to a refund of an overcharge in respect of anima's or goods carried by railway or to compensation for the loss, destruction or deterioration 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”
31. The section does not make the preferment of a claim a condition precedent to the filing of a suit, but it does require that no decree shall be passed for compensation for loss, destruction or deterioration unless a claim as provided by the section has been preferred. Section 140 of the Act sets out the manner in which any notice required by the Act to be served on a railway administration may be served, and the trend of authority is that the claim required by section 77 must be made in the manner provided by section 140. The result is perhaps unfortunate. If the object of section 77 is only to ensure that claims should not be delayed, it might be said that this object could be secured without the requirement of formal notice in the manner of section 140. There is usually correspondence apart from formal notice indicating sufficiently the existence and nature of the claim to be made. The question in this reference, however, is whether section 77 has application when the suit is not for compensation for loss, destruction or deterioration but is a suit for the value of the animals or goods consigned based simply on the non-delivery by the railway of those animals or goods. Logically there seems no particular reason why compensation for non-delivery should be allowable without any claim having been made, while compensation for loss, destruction or deterioration should require a claim to be made within six months of delivery for carriage.
32. The words “loss, destruction or deterioration” occur in earlier sections of the Railways Act. Section 72 lays down that the responsibility of a railway administration for loss, destruction or deterioration shall, subject to other provisions of the Railways Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act. Section 73 places a pecuniary limit on the liability under section 72 in certain cases. Section 72 exempts the railway administration from liability for the loss, destruction or deterioration of any luggage unless it has been booked and a receipt given. Section 75 again limits the liability under section. It in respect of certain articles in the absence of declaration of value and nature. Section 76 provides that in a suit against a railway administration for compensation for loss, destruction or deterioration of animals or goods delivered to the railway for carriage, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused. Section 78 exonerates the railway administration from responsibility for loss, destruction or deterioration of goods if the loss, destruction or deterioration is in any way brought about by a false description give under section 58 of the Act. Section 79 is not material. Lastly, section 80 provides that a suit for compensation for loss, destruction or deterioration of animals or goods, if booked through over the rail ways of two or more railway administrations, may be brought either against the railway administration to which the animals or goods were delivered by the consignor thereof, or against the railway administration on whose railway the loss, destruction or deterioration occurred.
33. Under section 160 of the Contract Act it is the duty of a bailee to return, or deliver according to the bailor's directions the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the put pose for which they were bailed has been accomplished and section 161, which is mentioned in section 72 of the Railways Act provides that if, by the default of the bailee, the goods are not delivered at the proper time, the bailee is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. The ordinary responsibility of a bailee for loss, destruction or deterioration of goods bailed is limited by sections 151 and 152 of the Contract Act. In a case where a railway administration refuses delivery of the goods to the consignee without such legal cause as non-payment of freight, the liability of the rail way administration undoubtedly will be absolute. The consignee can claim the lull value of the goods. If later the railway administration does offer delivery, then under section 161 of the Contract Act the railway administration is liable for loss, destruction or deterioration from the date when delivery was wrongly refused. The nature of a suit based on wrongful refusal of delivery therefore is distinguishable from that of a suit where there has not been refusal of delivery by the railway administration but by loss or destruction the railway administration is not in a position to give delivery. The distinction is recognised by Articles 30 and 31 of the Limitation Act.
34. It is of course possible for every consignee who has not obtained delivery to base his suit on nondelivery. It is then open to the railway administration to plead and prove that there has been loss or destruction of the goods and that their liability therefore is limited by sections 151 and 152 of the Contract Act. In such event the railway administration can avoid all liability to pay if a claim to compensation within six months from the date of delivery for carriage has not been made. If, however, the railway administration is not able to establish that the non-delivery was due to loss or destruction of the goods then it would seem that section 77 would not apply. As I have said, there seems nothing very logical in this conclusion, but section 77 being restrictive must be construed strictly, and if a particular relief does escape the restrictions of this section it should be allowed to do so. The question of the application of section 77 has been the subject of considerable judicial decision over a fairly lengthy period in which the later trend of authority has been towards a restricted application of the section. The Act was amended as late as the year 1949 by Act LVI of 1949, but the Legislature then did not consider it necessary to amend section 77 so as to include cases of compensation for wrongful refusal of delivery. In the circumstances I think that compensation for wrongful non-delivery cannot be denied on the ground that a previous claim under section 77 of the Railways Act has not been made. I agree therefore with the answers proposed by me learned brother Harnam Singh.
35. Falshaw, J.:— I agree that the question referred to the Full Bench should be answered in the negative, and have nothing to add to the reasons given by My Lord the Chief Justice and my learned brother Harnam Singh J.
The Judgment of the Court was delivered by
36. Weston, C.J:— This revision arises from a suit filed by the present applicant in the Court of the Senior Sub Judge, Simla, to recover an amount of Rs. 199/9/- from the Dominion of India being the alleged value of a trunk and its contents booked by the plaintiff from Kalka to Dharsmpore on the 18th of June 1947 on the ground of nondelivery.
37. The defendant raised a number of objections to the suit claiming inter alia that there was no notice under under section 77 of the Indian Railways Act and that the notice under section 80 of the Code of Civil Procedure was defective. The learned Judge's judgment is not easy to understand. He seems to have accepted that no notice under section 77 of the Indian Railways Act was necessary but that the notice under section 80 of the Code was defective as it was addressed to the Secretary in charge of the Railway, Dominion of India, and was not addressed to the Dominion of India. He also seems to have found a defect in the form of the suit as the Dominion of India purports to have been sued not simpliciter but through the East Punjab Railways. In the result he dismissed the suit.
38. When the matter came up first before me an argument was advanced regarding the notice under section 77 of the Indian Railways Act. It was claimed on behalf of the Dominion that absence of such notice was fatal to the suit. The matter was referred by me to a Full Bench which has held that no notice under section 77 is required when the claim is for nondelivery.
39. To other objections against notice under section 80 of the Code have now been urged. It is argued that under the amendment made in the year 1948 in the case of a suit against the Dominion where it relates to a railway the notice is to be delivered to or left at the office of the General Manager of that railway. The notice in the present case was addressed both to the Secretary in charge of Railways, Dominion of India, Delhi, and to the General Manager, East Punjab Railway, Delhi. It purports to be a notice to Government and to be notice of suit. I am not able to understand what the trial Court said when it remarked—
“Then the prayer is not demanding the money but the suit is to be filed in respect of missing trunk.”
40. To the notice was appended a list of the alleged contents of the trunk with their values and it is clear that the plaintiff proposed to sue for this amount if his claim was not settled. The notice satisfied all other requirements of section 80 and in my opinion is a perfectly valid notice.
41. There remains only the quantum of the claim. The plaintiff gave evidence of his father as to the value of the articles. It might be said that this evidence was not all the evidence which could have been given but there seems to have been little attempt to show by cross-examination that the valuation could not be accepted. The claim could hardly be called a large claim and while of course there is possibility of exaggeration even in small claims I think the plaintiff's case must be accepted at its face value. In the result therefore I make the rule absolute, set aside the order of dismissal and decree the plaintiff's suit for Rs. 1949/5/- with costs of the suit and in this court, the latter of which I assess at Rs. 30.
45. Rule made absolute.