GOVERNOR-GENERAL IN COUNCIL, REPRESENTED BY THE GENERAL MANAGER, MADRAS AND SOUTHERN MAHRATTA RAILWAY Vs. GUJRATHI SANKARAPPA BEING MINOR BY NEXT FRIEND AND PATERNAL UNCLE MOROJI

JUDGEMENT

(1.) THIS is a second appeal which has been preferred against the decree and judgment of the District Judge of Kurnool in A. S. 101 of 1947 reversing the decree and judgment of the learned District Munsif in O. S. 167 of 1945.

(2.) THE facts are: Six bundles of cotton cloth were consigned on 14 -9 -1943 by the plaintiff's deceased father Devappa from the Tuggali railway station under R. R. No. 63/17791 and invoice No. 116 for delivery to himself at Hindupur. Of these six bundles, only three bundles, weighing 3 maunds & 26 seers, arrived at Hindupur on 16 -9 -1943. The plaintiff's father took delivery of these three bundles under protest and informed the railway authorities on 30 -9 -1943 about the non -delivery of the remaining three bundles. The Chief Commercial Manager, M. & S. M. Railway wrote to the plaintiff's father on 14 -10 -1943 that he would make enquiries into the matter and send a reply in due course. As no reply was however received by the plaintiff's father for nearly a month afterwards, he got a notice sent through his lawyer on 14 -11 -1943 claiming compensation of Rs. 2955 -13 -0 for the non -delivery of the remaining three bales. The Chief commercial Manager by his letter dated 17 -2 -1944 replied that the bales in question had been lost from a running train and that the property recovered by the police and kept in the Sub -Magistrate's Court, Gooty would be delivered to the plaintiff's father in due course. On 15 -6 -1944, 63 items of cloth valued at Rs. 571 were delivered to the plaintiff's father by the Traffic inspector, Guntakkal. The remaining cloth of the value of Rs. 1964 -13 -0 was not delivered to the plaintiff's father. Nor was its value paid to him. The Chief Commercial Manager by his letters dated 31 -5 -1944 and 14 -7 -1944 declined to entertain the plaintiff's claim in respect of it. The plaintiff is entitled to recover as compensation Rs. 1964 -13 -0 being the value of the remaining cloth, Rs. 100 being the amount spent by the plaintiff's father towards travelling expenses and Rs. 300 which the plaintiff's father would have realised as profit had the cloth not delivered been sold by him during the Dasara season of 1943 making up in all Rs. 2364 -13 -0 from the defendant. Notice under Section 80, C. P. C. has been given to the defendant prior to the institution of the suit. The plaintiff had instituted the suit on 14 -7 -1945 Impleading the defendant as "The Madras and Southern Maharatta Railway Co.. represented by the Member to the Railway Board, Government of India., New Delhi." On 8 -2 -1946, he put in I. A. No. 145 of 1946 for leave to amend the description of the defendant as "Governor General of India in Council represented by the General Manager M. & S. M. Railway". This application was allowed on 18 -2 -1946.

(3.) ON the point of fact namely whether the plaintiff was entitled to any amount, the trial Court found that the plaintiff was entitled to a sum of Rs. 1964 -13 -0 as compensation. On the ground of want of proper notice following the decisions in - - 'Bhagchand Dagdusa v. ; - - 'Apparao v. : AIR1935Mad389 , - - 'Marina Ammayi v. Secy. of State', : AIR 1941 Mad 446 (C). - - 'Governor General in Council v. Krishnaswami Pillai', : AIR 1946 Mad 366 (D) and - - 'Governor -General of India v. Raghunandan', : AIR 1947 Mad 64 (E) and also that the suit was barred by limitation by reason of the fact that on the date when the amendment was allowed it was beyond the time prescribed under Article 30 or 31, Limitation Act, the trial Court dismissed the suit.