1. On 24-8-1949, Messrs Janeshwar Lal-Rajeshwar Lal Jain of Simla instituted Small Cause suit No. 138 of 1948 for the recovery of Rs. 222-13-0 from the Dominion of India (now Union of India) on account of compensation for short delivery of goods weighing 1 Page: 384maund, 21 seers sent by rail from Farrakhabad to Simla. The deft., resisted the suit pleading inter alia, that the giving of notice under Section 77 of the Railways Act, 1890, hereinafter referred to as the Act was necessary to the maintain-.ability of the suit, that the pltf. firm was to prove that short delivery was due to the negligence & misconduct of the rly. authorities & that the pltf. firm had not served notice as required by Section 80 of the CPC. On the pleadings of the parties the trial of fixed the following issues:
“1. Whether the notice of claim as required by Section 77 of the Railways Act, was served on the E.I Rly., N.W Rly. & E.P Rly.?
2. Whether the notice of suit as required by Section 80 of the CPC was served?
3. Has the pltf. the locus standi to sue?
4. Is the pltf. firm a joint Hindu family firm?
5. Is the deft, liable for the loss of the bag?
6. What was the price of the goods?”
2. In deciding Small Cause suit No. 138 of 1948 the trial Ct. has found for the pltf. firm on issues Nos. 2, 3, 4, & 5 but has dismissed the suit on the findings that the pltf. firm had failed to prove that short delivery of the goods was due to the negligence & misconduct of the rly. authorities & that the pltf. firm had not preferred in writing a claim for compensation for short delivery to the Rly. Administration within six months from the date of the delivery of the goods to them.
3. Messrs Janeshwar Lal-Rajeshwar Lal now apply under S. 25 of Act IX [9] of 1887 for the revision of the order passed by the, trial Ct. on 2-3-1949.
4. Mr. Daulat Ram Manohanda has a double-baralled objection to the decree passed by the trial Ct. He contends that the trial Ct. was in error in holding that the pltf. firm had to prove that short delivery of the goods was due to the negligence & misconduct of the rly. authorities. He then contends that in the case of short delivery of goods no notice is necessary under S. 77 of the Act.
5. Mr. Gurdev Singh, learned counsel for the resp. while supporting the judgment of the trial Ct. on issues 1 & 5 argued that the trial of was in error in finding under issues 2 that a valid notice under Section 80 of the CPC had been served.
6. In the written statement deft, pleaded:
“No notice of suit as required by Section 80 of the CPC has been served, That suit should, therefore, be dismissed.”
7. In deciding issue 2 the trial Ct. said:
“With regard to this the pltf. has proved Ex. P. 8, the acknowledgment receipt, & Ex. P. 4, the copy of the notice. It is clear from these that notice under Section 80 of the CPC has been served.”
8. Now, notice, Ex. P. 4, was given to the Secretary, Central Govt. Rly. Board Office, stating the cause of action, the name, description & place of residence of the pltf.-firm & the relief which the pltf.-firm claimed. That being so, I have no doubt that the notice, Ex. P. 4, served by the pltf.-firm on the Secretary. Central Govt. Rly. Board Office, Govt. of India, New Delhi, on 8-12-1947, satisfies the requirements of S. 80 of the Code.
9. As mentioned above, Mr. Daulat Ram Manchanda contends that notwithstanding the fact that the goods were booked under Risk Note “A” it was not the duty of the Pltfs. to prove that the short delivery of the goods was due to the negligence & misconduct of the rly. authorities. On this point counsel cites Governor-General of India in Council v. Firm Bishundayal Ram Gourishankar, A.I.R(35) 1948 Pat. 48. In that case, Meredith, J., said—
“The word ‘loss’ as used here (Risk Note ‘A’), in my opinion, cannot refer to any loss of the goods, but refers to loss arising from the condition in which the goods are delivered. In other words, the risk note has no application at all to cases of failure to delivery, or pilferage because a thing never delivered cannot be said to have been delivered in any condition, & therefore, no question arises of any loss arising from the condition in which the goods were found on delivery.”
10. Appendix a to Act IX[9] of 1890 sets out the form of Risk Note “A”. The relevant portion of Risk Note “A” provides that the consignor agrees & undertakes to hold the Rly. Administration over whose rly. the goods booked may be carried in transit from one station to another station harmless & free from all responsibility for the condition in which the goods be delivered to the consignee at destination & for any loss arising from the same except upon proof that such loss (sic) from misconduct on the part of the Rly. Administration's servants. In plain English, the words “any loss arising from the same” occurring in Risk Note “A” mean any loss arising from the condition in which the goods booked are delivered to the consignee at destination. In other words, Risk Note Form “a” has no application to cases of failure to deliver the goods booked to the consignee because a thing never delivered cannot be said to have been delivered in any condition. Clearly, the trial Ct. was in error in deciding under issue 5 that considering that the goods were booked under Risk Note “A” it was the duty of the Pltfs. to show that short-delivery was due to the negligence or misconduct of the rly. authorities.
11. I now pass on to examine the contention that in the case of short delivery of the goods no notice is necessary under S. 77 of Act IX [9] of 1890.
12. In deciding issue 1 the trial Ct. seems to think that a suit for compensation for short Page: 385delivery of the goods is a suit for compensation for the loss of the goods. This is not so for there is a real distinction between a suit against the Rly. Administration based on “short delivery of goods” & a suit against the Rly. Administration based on “loss of the goods”. That this is so is apparent from the fact that short delivery may be due to the loss of the goods or may be due to detention, misdelivery, conversion, or wrongful sale of goods by the Rly. Administration. Clearly, “loss” & “short delivery” are not interchangeable terms. Section 72 of the Act deals only with the responsibility arising from loss destruction or deterioration of goods delivered to the administration for carriage & does not deal with the responsibility for short delivery where short delivery is not due to the loss of the goods.
13. Indeed, from the juxtaposition of the words “loss, destruction or deterioration” in S. 72 of the Act it appears that the word “loss” occurring in ss. 72 & 77 of the Act does not mean pecuniary or other loss suffered by the owner of the goods through being wrongfully deprived of the possession, use or enjoyment thereof, but means loss of the goods whilst in transit. In plain English the words “loss of the goods” occurring in S. 77 of the Act mean “disappearance of the goods delivered to the Administration to be carried by rail”, for if the word “loss” in S. 77 of the Act was intended to mean “loss to the owner” the words “destruction” & “deterioration” would be redundant in that section, as loss in that sense would necessarily result from “destruction” or “deterioration” of the goods.
14. Tracing the history of the legislation on the point I find that the words “loss”, “destruction” & “deterioration” occurring in Ss. 72 & 77 of the Act appear to have been taken from Sections 152 & 161 of the Contract Act, 1872. Section 152 of the Contract Act reads:
“The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151.”
15. Clearly the word “loss” occurring in Section 152 of the Contract Act, is used in the sense of something that happens to the goods whilst in transit as distinguished from any loss or injury sustained by the owner. Indeed S. 72 of the Act which provides responsibility of the Rly. Administration for the loss, destruction or deterioration of goods delivered to the Administration to be carried by rail itself shows that the word “loss” has been used in that section to mean disappearance of the goods whilst in transit.
16. In clear words Sections 152 & 161 of the Contract Act, provide that up of the time of delivery the bailee is protected against loss destruction & deterioration of the goods provided he takes as much care of them as a prudent man of his goods would in the same circumstances. But if delivery is not made at the proper time by any default of the bailee then the bailee will be responsible for any loss, destruction or deterioration taking place thereafter no matter whether he has or has not taken adequate care of the goods. The duty of a bailee to return the goods at a proper time is laid down in Section 160 of the Contract Act, & a suit based on a “short delivery” is really based on a breach of the duty as laid down in that section of the Act. But as S. 160 is not mentioned in S. 72 of the Act a Rly. Administration is not entitled to limit its liability under S. 72 by an agreement embodied in Risk Note “A”. From what I have said in this para, it again appears that Risk Note “A” has no application to the case of short delivery of the goods.
17. Indeed the distinction between “short-delivery” & “loss” receives statutory recognition in Articles 30 & 31 of Sch. 1 to the Limitation Act. Article 30 provides limitation for a suit against a carrier for compensation for losing or injurying goods & 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 date 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 Ss. 72 & 77 of the Act.
18. For the foregoing reasons, I think that a claim of short delivery where short delivery is not due to loss does not entail the necessity of a notice under S. 77 of the Act.
19. In supporting the judgment of the trial Ct., Mr. Gurdev Singh based himself on Hill Sawyers & Co. v. Secy. of State, 2 Lah. 133 : (A.I.R(8) 1921 Lah. 1 F.B), D.B Jiwandas v. Agent E.I Ry. Co., 19 N.L.R 139 : (A.I.R(10) 1923 Nag 314). Agent B.N Rly. Co. Ltd. v. Hamir Mull Chagan Mull, A.I.R(12) 1925 Pat. 727 : (5 Pat. 106), Duni Chand Ram Saran Das v. Secy. of State, A.I.R(18) 1931 Cal. 585 : (134 I.C 93) & Dominion of India v. Modi Sugar Mills Ltd., 1950, A.L.J 41. In support of the contention raised by the pltf. firm Mr. Dault Ram Manchanda cites Haryana Cotton Mills Co. Ltd. v. B.B & C.I Rly., 8 Lah. 555 : (A.I.R(14) 1927 Lah. 471), Ram Lal v. B.N Bly. Co. Page: 386Ltd. Calcutta, A.I.R(23) 1938 Nag. 21 : (31 N.L.R Sup. 79). The Governor General in Council v. Kasiram, A.I.R(36) 1949 Pat. 268 : (29 P.L.T 477), Governor-General in Council v. Sarbeswar Das, A.I.R(36) 1949 Cal. 420 : (83 C.L.J 165) & Secretary Of State…Applicant; v. Firm Daulat Ram-Makhan Lal…Opposite Party., A.I.R(24) 1987 All. 632 : (171 I.C 532).
20. In Haryana Cotton Mills Co. Ltd. v. B.B & C.I Rly. Co. Ltd. Calcutta, 8 Lah. 655 : (A.I.R(14) 1927 Lah. 471) Fforde, J., (Campbell, J. concurring) declined to accept the definition of the term “loss” given by Scottsmith, J. in Hill Sawyers & Co. v. Secy. of State, 2 Lah. 133 : (A.I.R(8) 1921 Lah. 1 F.B). Dealing with the same matter Campbell, J., said
“It seems to me that the case of the relation of Section 77 of the Railway Act, to a suit for damages for non-delivery stands thus. A pltf. who institutes such a suit without having preferred a claim in accordance with S. 77 takes a considerable risk. In nine cases out of ten the rly. comes into Ct. & pleads that the goods have disappeared out of the Rly's sight or control, that they are loss, & hence that the suit is barred by the provisions of S. 77, This seems to have been the situtation in all the cases cited before us in which it has been held that failure to give notice of the claim under S. 77 bars a suit for compensation for non-delivery, & on the authority of those cases the pltf. might very well fail in his action.
The present, however, is the tenth case where the Rly. does not see 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 Rly. or to the consignee & where neither has alleged any deterioration of the goods. In such circumstances I cannot see that the terms of S. 77 have any bearing upon the question whether the suit can lie or not.”
21. That being so, no reliance can be placed upon, Hill Sawyers & Co. v. Secy of State, 2 Lah. 133 : (A.I.R(8) 1921 Lah. 1 F.B) & clearly there was no necessity to serve a notice of the claim on the rly. companies under S. 77 of the Act.
22. In Ram Lal v. B.N Rly. Co. Ltd. Calcutta, A.I.R(23) 1986 Nag. 21 : (31 N.L.R Sup. 79), Grille J.C, in repealing a similar contention said—
“The issues then are simply whether notice under Section 77 of the Railways Act, was necessary & whether Article 81 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 deft, 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 Jiwandas v. Agent E.I Rly. Co., 19 N.L.R 139 : (A.I.R(10) 1923 Nag. 314) as applying to a case where it is common ground that there has been no loss, damage or deterioration.”
23. In construing Section 77 of the Railways Act 1890 Ramaswami, J., (Sinha, J., concurring) said in Governor-General in Council v. Kashi Ram, A.I.R(36) 1949 Pat. 268 : (29 P.L.T 477):
“Non-delivery did not constitute ‘loss’ within the meaning of S. 77, & no notice under that section was necessary in a suit for damages for non-delivery of a consignment.”
24. In deciding Governor General in Council v. Kashi Ram, A.I.R(36) 1949 Pat. 268 : (29 P.L.T 477) the Ct. following Jaisram Ram Rekha Dass v. G.I.P Rly., A.I.R(16) 1929 Pat. 109 : (8 Pat. 545) said that the word “loss” in S. 77 does not include non-delivery B.N Rly. Co. v. Hamir Mull Chaganmull, A.I.R(12) 1925 Pat. 727 : (5 Pat. 106) was not followed in Jaisram Ram Rakha Dass v. G.I.P Rly. Co., A.I.R(16) 1929 Pat. 109 : (8 Pat. 545).
25. In Governor General in Council v. Sarbeswar Das, A.I.R(36) 1949 Cal. 420 : (83 C.L.J 165) it was pressed before Harries, C.J, that S. 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 dear that notice under S. 77 must be served.”
26. In the clearest possible terms Harries, C.J, laid down in Governor General in Council v. Sarbeswar Das, A.I.R(36) 1949 Cal. 420 : (83 C.L.J 165) that S. 77 has no application to a case of short delivery where the short delivery is not due to loss but S. 77 will apply to a case where part of the consigment has been lost by the rly. co. in the process of carrying it from the point of loading to the point of unloading. In other words, if short delivery is the result of loss then notice under S. 77 must be served.
27. In Secy. of State v. Firm Daulat Ram Makhanlal, A.I.R(24) 1937 ALL. 632 : (171 I.C 532). Sulaiman, C.J, and Bennet, J., said—
“The next question which arises is in regard to notice. No notice was given in this case & the learned Govt. Advocate contended that notice was required. Under Section 77 of the Railways Act, IX [9] of 1890, notice if 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 mis-delivery & is not one for loss & we are satisfied that do notice was necessary in the present rate although the rulings are somewhat conflicting on the point.”
28. Secy. of State v. Firm Daulat Ram Makhanlal, A.I.R(24) 1937 All. 632 : (171 I.C 532). was not considered by Misra, J., in Dominion of India v. Modi Sugar Mills Ltd. 1950 A.L.J 41.
29. From what I have said above it follows that although at one time there was a conflict Page: 387whether notice was necessary in the case of a suit for compensation for short delivery of the goods, there is now a general agreement among the High Courts in India that no notice is necessary to maintain a suit for compensation for short delivery if short delivery is not the result of loss.
30. In the suit out of which these proceedings have arisen the pltf. firm did not allege or admit that the goods were lost. No doubt there has been loss to the owner owing to short-delivery but the short delivery was not due to the loss of the goods delivered to the administration to be carried by rly. That being so, both on principle & authority I am definitely of the view that in the present case no notice was necessary under S. 77 of Act IX [9] of 1890.
31. No other point was raised in these proceedings. Finding as I do that no notice under S. 77 of Act IX [9] of 1890 was necessary to maintain the suit & that Risk Note “a” has no application to the facts of this case I allowing the petn. set aside the judgment & decree of the trial Ct. & decree the Pltfs. suit with costs throughout.
D.H
32. Revision allowed.