Case: Jetmull Bhojraj Vs. The Darjeeling Himalayan Railway Co. Ltd. And Others

14. The admitted facts are briefly these. The appellant had consigned 259 bales of cloth from Wadi-Bunder, a station on the Great Indian Peninsular Railway (now the Central Railway) to Giellekhola, a station on the Darjeeling Himalayan Railway (now in liquidation) on May 10, 1946. Out of these bales 169 reached the destination on or about June 7,1946. As the remaining bales had not reached the destination the appellant sent a telegram on July 1, 1946, to the General Manager of the D. H. Railway requesting him to give early delivery of those bales. By a letter dated July 9, 1946 the appellant confirmed the telegram and requested the General Manager to see that the remaining bales reached the destination immediately. Thereafter, some correspondence followed between the appellant and the Political Officer, Sikkim to whom the bales were to be delivered by the appellant, and also between the Political Officer and the D. H. Railway administration. It is, however, not necessary to refer to this correspondence and to certain other correspondence which has been referred to in the statement of the case except to the letter dated December 21, 1946 addressed by the appellant to the D. H. Railway stating that they have come to know that the consignment had arrived at Giellekhola in "a very damaged condition" and requesting that open delivery of the consignment be given immediately. Open delivery was given to the appellants assistant manager, Tulsi Ram, P. W. 1, on February 12, 1947 by the Commercial Inspector, D. H. Railway. The damage was jointly assessed by the Commercial Inspector, D. H. Railway and the Claims Inspector, Bengal Assam Railway at Rs. 27,920-13-6 and the assessment list was signed by them as well as by Tulsi Ram. By a letter dated June 26, 1947 Mr. A. C. Chatterjee, Advocate, made a claim of Rs. 34,192 against the Manager of the B. A. Railway, the General Manager of the D. H. Railway and Messrs. Gillander Arbuthnot and Co., Managing Agents for D. H. Railway. On the same day Mr. Chtterjee sent a similar letter to the G. I. P. Railway administration. But the Superintendent of Claims of that Administration at Bombay repudiated the claim on the ground that it had not been preferred within six months from the date of booking as required by S. 77 of the Indian Railways Act, 1890 (Act IX of 1890). It may be mentioned that the consignment had to pass over the railway systems of G. I. P. Railway, East Indian Railway, Bengal Assam Railway, and Darjeeling Himalayan Railway. It does not appear that any notice was given to the E. I. Railway. As the appellants claim was not settled, he instituted a suit in the court of Subordinate Judge, Darjeeling on April 9, 1948. To that suit the Dominion of India, presumably as representing the G. I. P. Railway, E. I. Railway and the B. A. Railway was made defendant No. 1, the second defendant being the D. H. Railway.15. The appellants claim was denied by both the defendants. Two written statements were, however, filed by the Dominion of India, one as representing the G. I. P. Railway and the other as representing the E. I. Railway. The only contention in these written statements to which reference need be made is non-compliance with the provisions of S. 77 of the Indian Railways Act.16. The main contesting defendant was the D. H. Railway. We will refer to only those contentions raised by it which bear on the arguments advanced by it. The first of these contentions is that no notice as required by S. 77 of the Indian Railways Act claiming compensation for the damage to the 90 bales was given by the appellant to it within six months of the delivery of the consignment to the G. I. P. Railway. The second contention is that the suit was barred by limitation, having been instituted more than twelve months of the date on which damage had occurred.17. The learned Subordinate Judge dismissed the suit in so far as the Dominion of India was concerned on the ground that no notice under S. 77 was given to the G. I. P. Railway administration or the E. I. Railway administration or the B. A. Railway administration. He, however, held that the telegarm dated July 1, 1946 and the letter dated July 9, 1946 addressed to the Manager of D. H. Railway amounted to sufficient compliance with the requirements of S. 77. He further held that the limitation for the suit is that prescribed by Art. 30 of the Limitation Act. According to him a suit instituted within one year from the date on which the loss was discovered by the plaintiff would be within time. On this finding the learned Subordinate Judge passed a decree for Rupees 26,920-13-6 against the second defendant and dismissed the suit against the first defendant.18. The second defendant preferred an appeal before the High Court but shortly thereafter went into liquidation. Thereupon the liquidators were added as appellants. The plaintiff preferred a cross-objection with respect to that part of his claim which was dismissed. Eventually the plaintiff amended the cross-objection and sought a decree in the alternative against the G. I. P. Railway or the E. I. Railway.19. The High Court allowed the appeal and dismissed the cross-objection upon the view that the provisions of S. 77 have not been complied with and that the suit which falls under Art. 31 of the Limitation Act was barred by time.

Reasoning: The High Courts in India have taken the view that the object of service of notice under this provision is essentially to enable the railway administration to make an enquiry and investigation as to whether the loss destruction or deterioration was due to the consignors laches or to the wilful neglect of the railway administration and its servants and further to prevent stale and possibly dishonest claims being made when owing to delay it may be practically impossible to trace the transaction or check the allegations made by thein mind the object of the section it has also been held by several High Courts that a notice under S. 77 should be liberally construed. In our opinion that would be the proper way of construing a notice under that section. In enacting the section the intention of the legislature must have been to afford only a protection to the railway administration against fraud and not to provide a means for depriving the consignors of their legitimate claims for compensation for the loss of or damage cause to their consignments during the course of transit on theletter clearly brings to the notice of the administration that 90 bales out of the consignment of 259 bales had not reached their destination. More than that by this letter the appellant requested the General Manager of the D. H. Railway to take appropriate action without delay. It is true that a claim for compensation has not been made by the appellant in this notice. In our view, however, such a claim must be deemed to be implied in the notice. The reason is obvious. Where a person says that his consignment has not been delivered as it should have been delivered according to the contract between him and the railway administration he must be regarded as making it clear that he would be holding the railway administration to its contractual engagement which necessarily involves the payment of damages for breach of that engagement. In our opinion, therefore, not only the object underlying S. 77 is satisfied by the letter dated July 9, 1946 but also a claim for compensation is implied in that letter.22. Upon the language of S. 77 it would appear that a notice thereunder must be given to every railway administration against whom a suit is eventually filed. No such notice was given by the appellant to the G. I. P. Railway administration or the E. I. Railway administration or the B. A. Railway administration within six months of booking the consignment and, therefore, in so far as they are concerned the suit must be held to have been rightly dismissed. That however, would not help the second defendant. For, so far as this defendant is concerned, as we have already held, a notice under S. 77 was given within six months from the date ofseems to us that the appropriate article would be Art. 30 and not Art. 31 because what the appellant is claiming is compensation for the damage to the goods which were eventually delivered. Even so, the question is what is the starting point of limitation. According to col. 3 the starting point would be the date of the loss or injury to the goods. Now when goods are consigned by a consignor he would not be in a position to know the precise date on which the loss or injury hasattempt has been made on behalf of the D. H. Railway to show that the damage in fact occurred more than one year before the suit was instituted. All that is said on their behalf is that the appellant knew in December, 1946 that the consignment appeared to be damaged. In this connection reliance is placed on Ex. B which is a letter addressed by the appellant to the D. H. Railway on December 21, 1946. What is stated there is that the consignment has arrived at Giellekhole in "a very damaged condition." This has reference to the outer covering or the package and not to the contents. Moreover, delivery was given nearly two months after this and it is not possible to say whether the damage which was noticed at that time had already been caused before December 21, 1946 or was caused thereafter. The D. H. Railway which had the custody of the goods could alone have been in a position to say, if at all, as to when the damage was caused. Upon the material before us it is not possible to say that the suit was instituted beyond one year of the accrual of the cause of action. It is, therefore, not barred bytheir written statement they have contended that the consignment of 90 bales was received by them at Silguri from the B. A. Railway and that it was transshipped by them to Giellekhole in the same condition. No evidence, however, was led by them in support of this contention. Under S. 80 of the Railways Act it is for the consignor to establish, if he wants to sue a railway administration other than the one which booked the consignment, that the damage had occurred on its system. The contention seems to us to be correct. But where a consignor receives his consignment in a damaged condition from the delivering railway the burden would shift to the delivering railway to show that the damage had not occurred on its railway. The burden could be discharged by showing that the consignment was already damaged before it was received by that railway. Here no evidence having been given on behalf of the D. H. Railway on the point we hold that the presumption has not been rebutted.