GENERAL MANAGER WESTERN RAILWAY Vs. LEKSHMI TEXTILES

JUDGEMENT

(1.) THIS Civil Revision Petition has been referred to a bench for decision, as it raises a question of importance under S. 78b of the indian Rail ways Act, 1830. On the 15th March 1962, the respondent consigned goods for carriage by railway from Cannanore Railway Station for delivery to self at Bilimora Railway Station. They were not taken delivery of at the destination, and were, at the request of the respondent, rebooked at Bilimora on the 25th June 1962, for carriage by Railway and delivery at Cannanore. The consignment never reached Cannanore. The respondent preferred a claim under s. 78b by forwarding it by registered post on the 26th December, 1962. The claim not being met, the respondent sued the revision petitioner, the Union of India, represented by the General Managers of the concerned railways, for compensation for non-delivery of goods. The petitioner contended, that no claim was preferred within the period prescribed by S. 78b. The Munsiff overruled the contention and gave judgment to the respondent which is now sought to be revised.

(2.) THE only question is whether the claim preferred was in compliance with S. 78b. THE relevant part of that section is as follows: "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, damage, deterioration or non-delivery 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 (a) to the railway administration to which the animals or goods were delivered to be carried by railway, or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carriage by railway. " According to the revision petitioner, the claim had not been preferred within six months from the 25th june 1962, the date on which the goods were delivered at Bilimora Railway station for carriage by railway to Cannanore. Applying S. 9 of the General clauses Act, 1897, the period of "six months from the date of delivery" has to be reckoned, excluding the 25th June 1962; so excluding, the period of sin months expired on the 25th December 1962. It may be assumed, that the 25th December being Christmas day was a holiday for the post office and it may further be assumed without deciding, that by virtue of S. 10 of the general Clauses Act, the claim may be made on the next day, the 26th. That was the date on which the claim was forwarded by registered post. It is not necessary to pronounce on these points, for even so, we are of the view that the respondent has to fail.

(3.) BUT learned counsel for the respondent argued, that whereas S. 78b uses the term "preferred", S. 140 to 142 use the term "served". Such a distinction was not maintained in any of the cases relied on by him, not even in the two cases just cited. Even the term "served" according to clause (c) of S. 140 and 141, contemplates no more than forwarding by post and not actual or constructive delivery by post. According to the dictionary too, the distinction does not seem tenable. It is useful to note, that there is no provision in the Act, which expressly and in terms uses the term "serve" or "service by post" on or by the railway administration except S. 140 to 142. S. 59 (2) speaks of "giving" notice to a railway servant, and S. 78b appears to be the only provision in the Act for a notice of claim being given to the railway administration. Similarly S. 56 (1) appears to be the only provision in the Act for a notice being served by the railway administration upon any person. It seems to follow, that S. 140 and 141 were intended to govern the manner of service of claims or notices under S. 78b and S. 56 (1) respectively; to hold otherwise would be to render both S. 140 and 141, otiose. According to S. 27 of the General Clauses Act, the term "serve" has the same meaning as the terms "give", "send" etc. , if so, the term "prefer" cannot mean anything different. Apparently, the respondent himself adopted the mode prescribed by S. 140 (c) for preferring the claim under s. 78b. On these considerations, it is not possible to hold that S. 142 has no application to a claim under S. 78b.