GOVERNMENT OF MYSORE Vs. KAPURCHAND

JUDGEMENT

(1.) On 29-6-1944, two bales of Lotus were sent by rail from Ambarnath Station to the plaintiff at Bangalore City. Of these, only one was delivered to the plaintiff and for recovery of Rs. 919-4-0as the value of the undelivered bale he sued the Government of Mysore and the Mysore State Railways. Subsequent to the institution of the suit, part of the goods contained in the undelivered bale was given to the plaintiff and the claim was therefore reduced to Rs. 590-12-0. The suit was contested on various grounds but decreed. The decree has been confirmed in appeal.

(2.) In the second appeal preferred by the defendants the decree made in favour of the plaintiff is challenged mainly on three grounds viz., firstly that the articles said to have been lost being of the kind mentioned in the schedule to the Railways Act, declaration of the contents of the bales should have been made as required by Section 59 of the Railways Act and since there was no such declaration, the defendants are not liable for the loss secondly that the claim has to fail for want of a proper notice under Section 61 of the Act and thirdly that the suit is barred by limitation. The first two depend on the interpretation of Sections 59 and 61 of the Railways Act and the last on the application of the relevant Article of the Limitation Act. According to Section 59 in the case of articles mentioned in the schedule declaration is necessary about the contents, if the value thereof is more than Rs. 100/- to render the Railways liable for toss. The declaration will put the Railway on guard to take extra care for safe transit of such goods and additional charges are levied to cover the responsibility. These goods are termed excepted goods on this account and enumerated in the schedule under the heading "Articles to be declared and insured". It is argued that Lohis are shawls mentioned as item (m) in the schedule and the total value of these being more than Rs. 100/-the Railway is protected from liability by the absence of the declaration. Besides the several articles specifically mentioned in the schedule it includes "any article of special value which the Government may by Notification in the Official Gazette, add to this schedule" implying that the schedule relates to articles of special value. What is called "shawl" in common parlance in a loose sense which is a coarse mixture of woollen and cotton, priced low to attract large sales, cannot be deemed to be article of "special value". For the purpose of the schedule "shawls" must be construed as having application to those "shawls" which are of superior quality, texture, colour and finish. It may appropriately refer to Kashmir Shawls or other fabric requiring more than ordinary skill & cost. In -- 'Sarat Chandra Bose v. Secy. of State', 39 Cal 1029 it was held that the term refers to shawls of special value and cannot be taken to apply to articles of inferior value such as Alwans. The same view was adopted in --'E. I. Rly. Co. v. Dayabhai Vanmalidas', AIR 1922 Bom 416. The description of the articles as woollen in the consignment note is not of significance in view of the control price of a lohi being only Rs. 9-2-0 and D. W. 1's evidence as follows: "Lohis are classed under general classification and not along with shawls. Shawls are not included under general classification. In goods tariff there is nothing to show that lohis and shawls are identical." The plaintiff has produced a letter from the Cawnpore Woollen Mills intimating that lohis are included by the Indian Railway Board in the general classification of goods and not treated as shawls for the purpose of Section 75 of the Indian Act corresponding to Section 59 of the Mysore Act and this is borne out by what is found in the goods tariff No. 26 of 1-6-1944 issued by the Indian Railways Conference Association. There is also a letter of the Assistant Secretary, Railway Board, to the Secretary, Upper India Chamber of Commerce, Cawnpore, showing that lohis are not excepted articles. In my opinion lohis are not shawls in the sense the term "shawl" is used in the schedule and Section 59 of the Act cannot be relied upon to resist the plaintiff's claim.

(3.) Section 61 of the Act prescribes that within six months from the date the goods are consigned to the railways for delivery, a notice in writing to the Railway Administration should be issued to sustain a claim for compensation. As already mentioned, the goods in this case were consigned on 29-6-1944. The notice Exhibit H was issued to the Traffic Manager on 20th May 1946. Between these two dates there was a notification dated 9-11-1945 by which the Traffic Manager (was) delegated with the authority to receive notice and settle claim. It cannot now be said that it is defective as being addressed to the Traffic Manager instead of the General Manager. The decision in -- R. A. 166 of 44-45' to the effect that the notice issued to the Traffic Manager is invalid may have affected the suit but for the notification subsequently issued which provides for it. There is, however, the other objection that the notice was issued beyond the period of six months from the date of delivery for carriage of the goods and therefore the requirement of Section 61 is not satisfied. The correspondence about nondelivery was started by the plaintiff within six months but it was prior to the notification. The contention is that since it was the Traffic Manager and not Manager to whom the letters were then addressed there was no valid notice within time. In -- 'Govind Lal v. Governor-General in Council', AIR 1948 Nag 17, the facts were almost similar. As in this case one bale of cloth was not delivered to the consignee and the notice was sent to the Superintendent General and not as it should have been to the Manager or Agent of the Company. The notice was sent in October 1942 and in November 1942 the Superintendent General was authorised to receive notices under Section 77 of the Indian Act corresponding to 61 of the Mysore Act. The delegation of authority though subsequent to the date of the notice the notification was regarded as sufficient to validate the notice. The notification in the present case clearly states "Any notice served wilt be treated as equivalent to one served on the Railway Administration in compliance with the provisions of Sections 61 and 122 of the Mysore Railways Act". At the time the notification was issued the claim with respect to the undelivered bale was pending consideration and having regard to the terms of the notification and the fact that the Railway Administration treated it as sufficient to be acted upon the objection is not tenable. In this view of the matter, it is unnecessary to examine whether a notice is necessary at all in case of non-delivery -- a question on which there is cleavage of judicial opinion.