Authored By : Thomas William Richardson, B.B. Ghose

Thomas William Richardson, J.

1. The Opposite Party obtained a decree in the Small CauseCourt at Munshigunj against the Petitioner, the Assam Bengal Railway Company,for compensation for non-delivery of a parcel of medicines. The goods wereentrusted by the Opposite Party as consignor to a Steamer Company for carriageto a station on the Assam Bengal Railway. It was thus the Steamer Company whichdelivered the goods to the Railway Company. This Rule, obtained by the RailwayCompany, calls upon the Opposite Party to show cause why the decree should notbe set aside on several grounds of which the following are material:--

1. For that the Court below has erred in low in holding thatnotice to the Traffic Manager was notice to the Agent of the Defendant Companywithin the meaning of secs. 77 end 140 of the Indian Railways Act, IX of I andthe said Court ought to have held that the Plaintiffs suit was fit to bedismissed for want of notice.

2. For that in the absence of any finding that the TrafficManager had any authority to accept notice on behalf of the Agent or that theAgent in this particular case had any knowledge directly or indirectly of thePlaintiffs claim within the statutory period of six months the Court below iswrong in decreeing the suit.

3. For that the Court below has misconceived the legaleffect of the Traffic Managers communication made without prejudice to therights of the Company and this has materially affected the decision of the caseon the merits.

As to these picas the question is whether the learnedSubordinate Judge correctly applied the law to the facts found by him. What hesays in his judgment is this:

Upon the evidence I find that the Plaintiff gave notice ofhis claim to the Traffic Manager who offered to pay Rs. 18 to him in satisfactionof the claim. Under the rules, the Traffic Manager settles all claims and theAgent refers some claims to him for settlement. Under the circumstances I holdthat notice to the Traffic Manager is notice to the Agent as held in Woods v.Meher Ali 13 C.W.N. 24 (1908) and the notice was given within 6 months time aslaid down in the law.

2. It has frequently been held in this Court under sec. 140of the Act, that in the case of a Railway Company the head-quarters of whichare in England, the notice required by sec. 77 should be given to the Agent ofthe Company in India. The case of Woods v. Meher Ali 13 C.W.N. 24 (1908) onwhich the learned Judge relies has been distinguished more than once inlanguage appropriate to the present case. See The East Indian Railway Companyv. Babu Madho Lal 17 C.W.N. 1134 (1913), Radha Kishun Lal v. The East IndianRailway Company 19 C.W.N. 62 (1913) and The East Indian Railway Company v. RamAutar 20 C.W.N. 696 (1915). Here also there is no evidence that claims of thiskind are usually referred by the Agent to the Traffic Manager and there is nofinding, as there was in the case of Woods v. Meher Ali 13 C.W.N. 24 (1908),that the notice had in fact reached the Agent. In Babu Madho Lals case 17C.W.N. 1134 (1913), it was painted out that the learned Judges who decidedWoods v. Meher Ali 13 C.W.N. 24 (1908) did not lay down as matter of law thatservice on the Traffic Manager was a sufficient compliance with the Act andthat the decision was based on the particular facts of the case. Reference mayalso be made to Kala Chand Shaha v. Secretary of State 21 C.W.N. 751 (1917). Inmy opinion the view of the learned Judge that notice to the Traffic Managervisas notice to the Agent is erroneous in law.

3. The case of Radha Sham Basak v. The Secretary of State 20C.W.N. 790 (1916) cited for the Opposite Party is distinguishable. The questionwhich arose there is not the question which we have to determine.

4. As to the offer made by the Traffic Manager to theOpposite Party, the learned Judge does not refer to the fact that the offer wasmade without prejudice. In any case the offer in itself cannot show that theTraffic Manager had authority to receive the notice on behalf of the Agent.

5. So far the Petitioner is entitled to succeed but for theOpposite Party an attempt was made to support the decision of the learned Judgeon the ground that in the present, case no notice under sec. 77 was necessary.

6. It was contended in the first place that the case was notwithin sec. 77 by reason of the fact that the goods were handed to the RailwayCompany for carriage not by the Opposite Party but by the Steamer Company. Itis not easy, however, to see how the claim made by the Opposite Party againstthe Railway Company can be maintained at all unless it be on the footing thatin handing the goods to the Railway Company, the Steamer Company acted as hisagent. It was said that the Steamer Company referred the Opposite Party to theRailway Company. If that be so, the explanation no doubt is that the SteamerCompany took up this position, that as regards the Railway Company the SteamerCompany was merely an Agent acting on behalf of the Opposite Party asprincipal.

7. In the second place, it was argued that in the presentcase there was no "loss" of any goods within the meaning of sec. 77of the Act and that for that reason there was no necessity to give any noticeof the claim to the Railway Company. It does not appear to have been contendedin any previous case in this Court that no notice is required of a claim forcompensation in respect of the non-delivery or short delivery of goodsentrusted to a Railway Administration for carriage. But that is not of itself asufficient answer.

8. Sec. 77 of the Act so far as it is materialprovides:--"A person shall not be entitled .... to compensation for theloss, destruction or deterioration of animals or goods delivered to be socarried." that is carried by railway, "unless his claim to the ....compensation has been preferred in writing by him or on his behalf to theRailway Administration within six months from the date of the delivery of theanimals or goods for carnage by railway."

9. I will assume that the word "loss" in thissection means loss by the Railway Administration. The argument is that goodsnot delivered or short-delivered are not "lost" and reliance wasplaced on the judgment of Jwala Prasad, J., in The East Indian Railway Companyv. Kali Charm Ram Prasad [1922] Pat. 145. The learned Judge referred to thedistinction which appears in Arts. 30 and 31 of the schedule of the LimitationAct between claims against a carrier on the one hand for compensation forlosing or injuring goods and on the other for compensation for non-delivery ofor delay in delivering goods. In the first case limitation runs from the timewhen the loss or injury occurs and in the second case from the time when thegoods ought to be delivered. In my opinion, with respect, these two articles ofthe Limitation Act throw little, if any, light on the construction of sec. 77of the Railways Act. There may be reasons for the presence of both articles inthe Limitation Act but they may still be overlapping. Where there is anagreement by a carrier to deliver goods at a fixed time or within a reasonabletime, a claim for goods lost may be drawn as a claim for their non-delivery.

10. The reasoning of the learned Judge then proceeds on theassumption, mistaken as I venture to think, that a claim for non-deliverynecessarily imports that the Railway Company are consciously and deliberatelywithholding goods in their possession, which they might deliver if they choseto do so.

11. As it seems to me, a claim for non-delivery, withoutmore, merely asserts that the goods were not delivered at the agreed time orwithin a reasonable time. Such a claim asserts nothing as to the cause of thenon-delivery.

12. In Ghelabai Parsi v. East Indian, Railway Company I.L.R.45 Bom. 1201 (1921) there was no question as to the construction of sec. 77 ofthe Railways Act. The question was as to the right of the Railway Company toexemption from liability under a risk-note in Form B. The decision is based onthe judgment of Palles, C.B. in the Irish case of Curran v. M.G.W. RailwayCompany 2 IR 183 (1896) which also turned on a special contract between theconsignor and the Railway Company, Currans case 2 IR 183 (1896) has recentlybeen the subject of comment in the House of Lords in Smith v. Great WesternRailway Company [1922] I A.C. 178. But for the present purpose it isunnecessary to examine these cases. The question discussed was a question ofthe burden of proof turning on the state of the evidence at the conclusion ofthe trial upon an issue raised between the parties which it was necessary todecide one way or the other.

13. In the present case there is no finding that the goodswere detained by the Railway Company. It is true also that there is no findingthat the goods had, as the Company alleged, been stolen from the godown. As thecase seems to have been framed and placed before the Court, it was notnecessary to deal with these matters. Damages were awarded merely for thenon-delivery of the goods.

14. I have indicated that in my view, a claim forcompensation for non-delivery includes the case of the loss of the goods justas much as the case of the detention of the goods. If that be so, it seems tofollow that the statutory notice is a condition precedent to a verdict beingtaken on that alternative footing, because on that footing the goods may havebeen lost.

15. If it be conceded, though I do not decide, that wheregoods are wrongfully detained by a Railway Company, no notice is necessaryunder sec. 77, a plea by the Company of want of notice must at least be met onthat ground and the Court must be asked to find that the goods were beingdetained and were not lost when they ought to have been delivered.

16. Where detention is not pleaded or put in issue a claimsimpliciter for compensation for non-delivery must be understood as includingor involving a claim for the loss of the goods within the meaning of sec. 77.

17. The result is that in my opinion the Rule should be madeabsolute and the suit against the Company dismissed with costs of the Courtbelow and of this Rule (hearing-fee four gold mohurs).

B.B. Ghose, J.

18. I agree. The current of decisions in this Court is thatnotice under sec. 77 of the Railways Act should be served on the Agent. In thecase of Woods v. Meher Ali (1908) 13 C.W.N. 24 , the learned Judges expresslysay that they did not desire to differ from those decisions. It was apparentlyfound as a fact in that case that the Agent was aware of the notice and it washeld under the circumstances of the case that the Agent had the requirednotice. If that is so, the decision was in accordance with The Secretary of Statev. Dipchand I.L.R. 24 Cal. 306 (1896), where it was held that the plea of wantof notice would be sufficiently met if it were shown that the notice served onthe Traffic Superintendent reached the Manager within six months of thedelivery of the goods. There is no such allegation or finding in this case. Thenotice served on the Traffic Manager was not therefore sufficient in law.

19. I do not think that there is much substance in theargument advanced by the learned Vakil for the Opposite Party in support of thedecision of the lower Court that no notice under sec. 77 of the Railways Actwas necessary in the present case as the goods were not delivered by thePlaintiff to the Railway Company for being carried by the Railway. If thiscontention is accepted I think it would cut the ground on which the claimagainst the Railway Company rests, and the Railway Company would not at all beliable for the value of the goods. The learned Vakil urged that the SteamerCompany was really liable to the Plaintiff and the Railway Company is onlyliable because they took upon themselves the liability of the Steamer Companyto pay damages for the breach of their contract. The Plaintiff, however, didnot bring his suit on that basis and if he had done so there might have beenvarious grounds for defence on behalf of the Railway Company. The liability ofthe Railway Company must therefore depend on the fact that there was deliveryof the goods to the Railway Company, either by the Steamer Company acting asagents of the Plaintiff, or by the Plaintiff to the Steamer Company whoreceived delivery of the goods us Agents of the Railway Company. The Plaintifftherefore cannot get rid of the obligation to give notice of his claim on thisground.

20. It is next urged by the learned Vakil for the OppositeParty that no notice under sec. 77 was necessary as the Plaintiff sued fornon-delivery of the goods and not for loss. For this distinction reliance isplaced on the case of East Indian Railway Company v. Kali Charan [1922] Pat.145. I find some difficulty in understanding the facts of the case as reported.It is stated at page 147 of the report: "The Court below has found thatthe goods in question were lost not on account of a running train robbery, noron account of theft but on account of the wilful neglect on the part ofDefendants servants." Thus there was finding that the goods were lost,and in such a case it cannot be questioned that notice is necessary. But thereis another passage at p. 148 which runs thus:-- "The lower Court hasdisbelieved the plea set up by the Defendant of the loss of the goods in themanner alleged by the Company and has expressly held that it was a case ofnon-delivery of the goods of the Plaintiff." The learned Judge, however,held that although no notice was necessary the Plaintiff had actually givennotice, which according to him was good notice under sec. 77 of the Act. Hecited a number of cases in support of his opinion that the notice served wassufficient. It may, however, be pointed cut, in passing, that the cases of theCalcutta High Court cited do not seem to support his proposition. Theobservations, therefore, in the judgment that notice under sec. 77 was notnecessary in the case of non-delivery of goods, are mere obiter. In conclusionthe learned Judge declined to exercise his discretionary power of revision infavour of the Company as in his opinion justice had been done.

21. Reference has been made to Arts. 30 and 31of theLimitation Act in support of the contention that there is a distinction betweenloss and non-delivery. That distinction may be necessary for the purpose offixing the starting-point for the period of limitation for suits underdifferent circumstances. Art. 30 applies only to a suit for compensationagainst a carrier for losing or injuring goods, and difficulty was actuallyexperienced in applying the appropriate article to suits for damages fornon-delivery before the amendment of the Limitation Act, I shall refer to lateron. It can therefore be hardly argued by reference to those articles that theword "loss" in sec. 77 of the Railways Act excludes"non-delivery" of the goods. The words "non-delivery of" inArt. 31 of the Limitation Act was first introduced by way of amendment in theLimitation Act of 1877, by sec. 3 of Act X of 1899. By sec. 2 of the same Actaddition of a new sec. 10 to the Carriers Act of 1865 was made. Sec. 9 of theCarriers Act provides that: "In any suit brought against a common carrierfor the loss, damage or non-delivery of goods .... it shall not be necessaryfor the Plaintiff to prove." . . . Under the new sec. 10 notice wasrequired to be given as is provided in sec. 77 of the Railways Act. The word"non-delivery" does not appear in sec. 10, but it seems to me that itwas not intended to exclude the necessity of giving notice in the case ofnon-delivery, although a different article was found necessary for the purposeof limitation of suits. The case might have been different if the suit was fordamages for wrongful detention of the Plaintiffs goods. But in such a case asthat, the Plaintiff must prove that the goods are with the Railway Companywhich have been wrongfully detained by them, otherwise his suit must fail. Theword "loss" used in sec. 77 is in my opinion wide enough to includeall cases where the goods are not forthcoming and therefore includes a case ofnon-delivery. It may also be observed that under sec. 72 of the Railways Act,subject to the other provisions of the Act, the liability of the RailwayCompany is that of a bailee under secs. 152 and 161 of the Indian Contract Act,Sec. 161 of the Contract Act runs as follows: "If by the fault of thebailee the goods are not returned, delivered or tendered at the proper time heis responsible to the bailor for any loss or destruction or any deteriorationof the goods from that time." It seems to me that if any person asks fordamages for any loss on account, of goods not being delivered against a RailwayCompany, he is under the provisions of sec. 72 bound to give notice under sec.77.

22. In order to see whether the contention of the OppositeParty can find any support in the case of Curran v. Midland G.W. Ry. Co. 2 IR183 (1896) and the case of Ghelabai v. E.I. Ry. Co. I.L.R. 45 Bom. 1201 (1921)which followed the Irish case, we have examined those cases as also the case ofSmith v. G.M. Ry. Co. [1922] I A.C. 178 in which Currans case 2 IR 183 (1896)was distinguished and commented on, Currans case 2 IR 183 (1896) turned uponthe question of burden of proof with reference to the special contract enteredinto between the parties and cannot therefore be of any assistance in decidingthe question whether the word "loss" in sec. 77 of the Railways Actexcludes the case of " non-delivery." I am therefore of opinion thatit was incumbent on the Plaintiff, who sues the Railway Company for damages fornon-delivery of goods to give notice as provided in sec. 77 of the RailwaysAct. I desire, however, to make it clear that I do not intend to express anyopinion as to the meaning of the word "loss" where it is contained ina risk-note or any other document, which should be construed with reference tothe context. I agree with the order proposed by my learned brother.

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The Assam Bengal Railway Co. Ltd. vs. Radhica Mohan Nath (28.08.1922 - CALHC)