PARVATHAM MUTHU Vs. UNION OF INDIA RAILWAYS

JUDGEMENT

(1.) THE point which arises in this revision concerns the interpretation of section 78-B of the Indian Railways Act.

(2.) THE matter arises this way: THE petitioner was the consignee of a consignment of timber logs which was carried by the Southern Railway from Punalur to Coimbatore. THE logs arrived in Coimbatore, on 13th November, 1973. But there was a delay in the consignee unloading the logs from the wagons. THE Railway calculated the delay as 73 hours. On that basis, the Railway demanded from the consignee Rs. 835-20 P. as demurrage and Rs. 102. 30 P. as wharfage, aggregating to Rs. 937-50 P. THE consignee paid the amount under protest. She then sent a notice of claim to the Railway administration on 31st July, 1976, claiming a refund of the amount paid, on the score that the delay in unloading must be attributed entirely to the Railway administration in not placing the wagons in a position for unloading. Since there was no compliance with the terms of the notice of claim, the consignee filed a small cause suit for the amount in the Sub Court, Coimbatore. THE Railway entered appearance and resisted the suit One of the defences put forward by the Railway was that the suit had not been preceded by a valid notice issued by the consignee under section 78-B of the Indian Railways Act, within the permitted time-limit of six months from the date of delivery of the consignment. THE Sub Court went into the merits of the consignee-s claim and found that she was bound to pay demurrage charges for a duration of 14- hours as against 73 hours determined by the Railway. THE Sub Court further held that the consignee was liable to pay the entire wharfage amounting to Rs. 102-30. On the issue as to the maintainability of the suit, which arose on the plea of the Railway that the suit notice was not within the time prescribed under section 78-B, the Sub Court found that the notice was issued beyond six months from the date of delivery of the goods. On this ground of want of proper statutory notice within the prescribed time, the Sub Court dismissed the suit.

(3.) THE petitioner-s contention calls for an examination as to what the scope is of section 78-B, and whether the consignee, in this case, was bound to send a notice under this provision as a pre-requisite for filing the suit. Section 78-B is couched in a negative form. It provides that a person shall not be entitled to a refund of overcharge in respect of goods carried by a railway unless his claim to refund has been preferred in writing within six months from the date of delivery of the goods carried by the railway. THE point urged by learned counsel for the petitioner is that a claim for refund of excess demurrage or wharfage cannot be brought within the mischief of the expression -refund of an overcharge in respect of goods carried by a railway-. THE suggestion is that demurrage and wharfage are terminal charges, and not charges for carriage of the goods. THE further contention is that the suit claim in this case did not pertain to rates of charge, so as to come within the meaning of the statutory expression -overcharge-. An overcharge, according to learned counsel, has reference only to the rates aspect of the charge and not to the amount of liability itself, as ultimately quantified. THE consignee it was urged, did not question the rates as excessive, but questioned the overall liability alone as not chargeable.