1. This is a petition for revision of a decree of a Small Cause Court passed in favour of the plaintiffs.
2. The plaintiffs brought a suit against the railway alleging short delivery of 11 seers of catechu and 8 sheers of Kesadana and they valued their claim at Rs. 125. The plaintiffs' case was that they had consigned 3 maunds 18 seers of catechu and 2 maunds 3 seers of Kesadana at Sealdah to be carried to Malda. On arrival there was this shortage. Hence the claim.
3. It appears that the goods were covered by Risk Note B.
4. Inter alia the railway pleaded that no notice had been served on them as required by Section 77 of the Railways Act. The railway took other defences, but eventually the learned Judge came to the conclusion that notice in accordance with Section 77 of the Railways Act, was served and that the company were liable for this short delivery. He accordingly made a decree in favour of the plaintiffs. The main point taken by the company in revision is that the Court below was wrong in holding that proper notice under S. 77 had been served on the railway company. The case for the company was that the notice served was out of time.
5. Section 77 of the Railways Act, is in these terms:
“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.”
6. The learned Judge of the Small Cause Court held that the period of six months contemplated by Section 77 of the Railways Act, is six months from the date of the delivery of the goods to the consignee. It appears to me that construction is in direct conflict with the plain words of the statute. The section requires that this claim in writing must be preferred within six months from the date of the delivery of the animals or goods for carriage by railway, that is, the claim must be made within six months of the goods being delivered to the railway for carriage, not within six months of the date when the railway delivers the goods to the consignee.
7. The learned Judge appears to have thought that the construction he gave was a more equitable one, but I am afraid that equity cannot be prayed in aid in construing a section such as this. The learned Judge also seemed to think that this view was supported by a Bench decision of this Court in the case of Nadir Chand Saha v. Mr. Wood, Agent Assam Bengal Ry., 12 C.W.N 450 : (35 Cal. 194). But it will be observed on reading the judgment in this case that there is no discussion as to what this section really meant and it would appear as if the learned Judges misquoted it. It is certainly no authority for the proposition that the notice must be with, in six months from the date of the delivery of the goods to the consignee.
8. The learned advocate also relied upon & Bench decision of the Patna High Court in the case of Ram Gapal Marwari v. Bengal and North Western Railway Co., A.I.R (14) 1927 Pat. 241 : (6 Pat 266). There the question to be decided was whether merely posting the letter was sufficient, if it was posted within time. But Adami, J. in delivering the judgment made this observation:
“Section 77 states that a person shall not be entitles to compensation for loss of goods delivered to the Railway to be carried unless his claim to compensation bets 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 goods by the railway.”
9. This, it is urged, is an authority for holding that time begins to run from the date of delivery to the consignee; but it is to be observed that Adami, J., really was not discussing the construction of the section and his quite clearly misquoted it because he uses the words within his months from the date of the delivery of the goods by the railways, whereas the section has the words “within six months from the date of the delivery of the goods for carriage by railway.” The goods can only be delivered for carriage by railway to the railway company and the point of time referred to in S. 77 is the date of delivery to the railway company for the purposes of carriage.
10. It appears to me that these Bench decisions are no authority for the proposition that; the six months begins to run from the date of delivery to the consignee. That being so, the view of the learned Judge of the Samall Gauss Court cannot be sustained.
11. It was then urged before me that S. 77 does not apply to a case of short delivery. But that is stating the case rather too broadly. Section 77 has no application to a case of short delivery where the short delivery is not due to loss. It only applies to a case where the whole consignment or part of it has been lost by the railway company in the process of carrying it from the point of loading to the point of unloading. In the present case it is quite clear that the goods were lost. Evidence was given which is referred to by the learned Judge and he was satisfied that in all probability these goods were lost while they were being off loaded and unload-ed at a station called Amnura. I think from the judgment of the learned Judge it is clear that in his view these goods were not delivered be-cause they were lost. If the cause of non-delivery was loss, then I think it is clear that S. 77 applies to the case. This was the view of a Bench of this Court in the case of E.I Rly Co. v. Jogpat Singh, A.I.R (11) 1924 Cal. 726 : (51 Cal. 615). The same view has been taken by the Allahabad High Court in a number of cases. But in any event I must follow the Bench decision of this Court. Loss must not be presumed from short delivery but if short delivery is the result of loss then it appears to me that the authorities are clear that notice under S. 77 must be served. As I have said, in this case the learned Judge held upon the evidence that these goods had been lost and by the misconduct of the railway administration. But they had been clearly lost. That being so, S. 77 applies and as the suit was not brought within ??? months from the date of the delivery to the railway for carriage the suit was bound to fail. It is an unfortunate result; but as I have said one cannot apply any equitable principles to the construction of a section like Section 77 of the Railways Act.
12. For these reasons I am satisfied that the decree of the Court below cannot stand and must be set aside. This petition is therefore allowed, the decree of the lower Court, is set aside and the plaintiffs' claim dismissed. In the circumstances I would make no order as to costs an this Court or in the Court below.
13. The Rule is made absolute accordingly.
D.H
14. Rule made absolute.