1. This second appeal arises out of a suit in which the plaintiffs (The Imperial Match Co. (India) Ltd.) claim damages from the Railway Administration on account of the loss sustained by them through the negligence of the Railway. The plaintiffs' case in brief is that some blocks of wood for the manufacture of match-sticks were dispatched on 11-9-49 from Lal Kua Station (O.T.R) to Gwalior. On 18-6-50, almost after a year from the date of their despatch, the plaintiffs received an intimation from the Station Master, Gwalior, that the goods had arrived.
2. They requested for an open delivery with assessment of damages caused by this late delivery. The Railway complied with the request and gave an open delivery on 19-8-50 as suggested by the plaintiffs. On 27-8-50, the plaintiffs served a notice on the Railway and filed the present suit on 13-11-50 for the recovery of damages, alleging that the wood through the negligence of the Railway was delivered after about a year and that it had rotted and become unfit for the manufacture of match-sticks. The trial Court dismissed the suit on the ground that no notice was served on the Railway according to Section 77 of the Indian Railways Act. This decision was affirmed in appeal and now this is plaintiffs' second appeal. The short question for determination is whether in the circumstances of the case, it was necessary to give a notice according to Section 77 of the Indian Railways Act.
3. I have listened to lengthy and elaborate arguments of the learned counsel of both the parties and after giving to the question my serious consideration which it deserves, I have come to the conclusion that no notice was necessary in this case.
4. In determining the question of notice, we must first of all see what the requirements of Section 77 of the Indian Railways Act are. The Section runs thus:
“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 of 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.”
5. And it may well be to consider also the provisions of S. 72(1) of the Act which says that the responsibility of a Railway Administration for the loss, destruction or deterioration of goods shall be that of a bailee under Sections 152 and 161 of the Indian Contract Act. Now bailment is a branch of the law of contract and this means that any claim made against the Railway for compensation will be one for the breach of a contract.
6. On reading Ss. 72 and 77 of the Act together, one is forced to the conclusion that when an action is brought against the Railway for the breach of a contract, in which compensation is claimed for the loss, destruction or deterioration of goods dispatched through the Railway, a notice under S. 77 is a pre-requisite condition to the institution of such a suit. But what if the suit is not based upon a breach of contract, but is an action for a tortious act? A tort is described as an act independent of contract. Would a notice under S. 77 of the Act be still necessary?
7. In considering this aspect of the matter, one finds that the Indian Railways Act is silent about the responsibility of the Railway as to tortious acts. It will be too academical to embark on a full discussion of what a tort is. Suffice it to say that a tort is a civil injury independent of contract and an action for damages is the essential feature of its remedy. In Roman Law a tort was known as obligations ex delicto, that is duties arising out of wrong. It is obvious that a contract and a tort belong to two different branches of the law. Though contractual or delictual duties differ in their juridical source, yet they may co-exist or concur in the same act, and when it is so, the wrong is both a breach of contract and a tort. A simple illustration of this is a case in which a man undertakes by contract the performance of a duty which lies on him already, in pendently of any contract.
8. Thus if a person, who has borrowed an article, refuses to return it, he commits both a breach of contract and also the tort, known as conversion; the act is a breach of contract, because he promised to return the articles; it is also a tort, because he would have been equally liable to return another person's property, even if he had made no such contract at all. Another example of it would be that of a doctor, who undertakes to operate upon a patient for fees. The doctor in this instance is under a duty, arising out of a contract to perform the operation skillfully.
9. The doctor would also be liable in tort if he performed the operation negligently. Another instance of the same action being a breach of contract and tort is when a person travels with a ticket in a railway train, and, owing to Railway's negligence is injured. The Railway Company is guilty of a wrong which is both a breach of contract and a tort. Examples can be multiplied but it is sufficient for my purpose to say that a concurrent liability in tort and contract sometimes does exist. This coincidence of contractual and delictual liability is sometimes found in the case of a bailee or carrier. See Groom v. Grocker, (1939) 1 KB 194 (A).
10. At one stage of the English legal history, the concurrence of causes of action in tort and contract was a source of headache to lawyers, who had to mould an action in the form of original writs. But the English Judicature Act of 1875 swept away all the technical forms and thereafter it was not necessary for a plaintiff to adopt any set words or formula in his pleadings. In. India happily no such hard and Page: 113fast rules of pleadings ever existed. Here a plaintiff is required only to state concisely the material facts constituting the cause of action. He need not designate his cause of action as being either in tort or in breach of contract. Even if he did so wrongly, he would not for that reason alone lose the relief which on a proper view of his case he is in justice entitled to.
11. Though for the purpose of pleadings it may not be necessary to say whether a suit is for breach of contract or tort, yet it may be worth while for the plaintiff to choose between the two. The distinction is important, because damages for tort may be exemplary, whereas compensation for breach of contract is confined as a rule to the extent of actual or material loss.
12. In determining the liability of the Railway in the present case, I find that there exists a concurrent liability in contract as well as in tort. In so far as the Railway agreed to transport the goods of the plaintiffs, their liability arose out of a contract. But if in carrying the goods, the Railway was negligent (and the present suit is founded on negligence), it cannot escape liability under torts.
13. On looking to the plaint in this case, I find that the suit is not really for compensation of loss arising out of a breach of contract, but it is an action in tort for the negligence of the Railway in carrying the goods and the relief sought is damages. In para two of the plaint, the plaintiffs have stated all the facts which in their opinion constituted the negligence of the Railway. The expression “wilful negligence” has been actually used. In para 7 of the plaint, the plaintiffs have claimed damages. There is no doubt that in para 4 of the plaint the plaintiffs have stated that “due notices under Section 77 of the Railways Act and Section 80 of the CPC were served”, but I put it down to the bad drafting of the pleadings and having regard to the other facts, the mention of the notice under S. 77 was redundant. The nature of a suit should be determined by the material facts given in the plaint and not by the mere mention of the giving of a notice.
14. I feel fortified in the view that I have taken by a decision of a Division Bench of the Patna High Court Sundarjei Shivji v. Secretary of State, AIR 1934 Pat 507 (B), in which Courtney-Terrel C.J observed that
“Section 77 refers only to a claim to a refund of an overcharge or compensation for loss, destruction or deterioration of goods delivered to be so carried, that is to say it refers to a suit against the carrier in his capacity as a carrier for the loss, destruction or deterioration of goods. This Section, therefore, refers to the special liability of the carrier as such; it has no application to the broad liability of the Railway Company in the case of tortfeasors quite apart from their position of railway carriers and therefore no notice is necessary before bringing such a suit.”
15. In a similar case reported in Secy. of State v. Simla Footwear Co., AIR 1935 All 601 (C). Division Bench consisting of Suleman C.T held that in a suit for damages against the Railway Company, Section 77 of the Railways Act did not apply and that no notice under it was necessary.
16. In both the cases the Railway Company, to whom the goods were consigned for transit committed the tortious act of conversion and it was held that no notice was necessary under S. 77 of the Act.
17. In the present case the Railway Company is being sued for negligence, which is a tortious act like conversion. Both on reason and authority, I hold that in the present case no notice under Section 77 of the Indian Railways Act is necessary, because the suit is based on negligence, and the relief sought is damages.
18. It is obvious that the two Courts below did not treat it as a case in tort and therefore they failed to frame an issue with regard to the alleged negligence of the Railway. Nor was there an issue about the question of damages. For this purpose the suit should go back to the trial Court for framing two issues; one about the negligence and the other about the question of damages. The burden of these two issues would be on the plaintiffs. The Court shall record the evidence of the parties and after hearing arguments give its judgment. For reasons stated above, the appeal is allowed and the case is sent back with the above direction to the trial Court. Costs hitherto incurred shall be provided in the revised decision of the Court.
19. Appeal allowed.