UNION NORTHERN RAILWAY Vs. FIRM ANIS KHAN

JUDGEMENT

(1.) The only point canvassed in this second appeal on behalf of the Railway Administration of the Northern and North-Eastern Railways is whether a claim addressed by the plaintiff-respondent to Divisional Traffic Superintendent, Varanasi, by means of a letter dated 27-8-1968, a copy of which is Ex. 17 on the record, was a sufficient compliance of the requirements of Section 78-B of the Indian Railways Act, 1890. The finding recorded by the lower appellate court is that although the claim was addressed to Divisional Traffic Superintendent, Varanasi, the Railway Administration took notice of it and the loss was assessed, vide-Ext. 18 dated 8-9-1968, by the Assistant Commercial Superintendent, Varanasi. According to the lower appellate court it is clear from this certificate that the claim addressed by the plaintiffs to the D. T. S. Varanasi ultimately reached the Commercial Superintendent who acted upon it and deputed an officer of the department to assess the loss and assessment certificate was issued by the Assistant Commercial Superintendent on behalf of the Commercial Superintendent, "and that" the claim addressed by the plaintiffs (Ex. 17) to the D. T. S. can thus be called to be an information demanded or inquiry made in writing from or complaint made in writing to the Railway administration concerned as laid down by the proviso attached to Section 78-B of the Indian Railways Act.

(2.) The original of the claim letter Ext. 17 was obviously in the possession of the Railway Administration. The Railway administration did not produce it and yet raised the plea in its written statement to the effect that the Divisional Traffic Superintendent, Varanasi was not a competent authority in law to receive the claim notices under Section 78-B and that in any case it was unsigned and bore wrong booking particulars. I even gave an opportunity to the Railway Administration to produce the original of Ex. 17 in order to see whether the plea that it was unsigned was correct or not, and also to see whether the finding of the lower appellate court that it must have reached the Chief Commercial Superintendent was correct or not, by ordering its discovering and production on oath, but an affidavit has been filed in this Court on behalf of the appellants that the original of that letter is not traceable. The non-production of the letter by the Railway Administration even in this Court doubly supports the inference drawn by the lower appellate court against the Railway Administration. Moreover, on the facts and in the circumstances of the case, the decree of the lower appellate court cannot be interfered with at the instance of the Railway Administration. Under the certificate granted by Assistant Commercial Superintendent, Varanasi dated 8-9-1968, Ext. 18, while granting delivery of the goods to the plaintiff, the Railway Administration admitted the liability to pay the sum of Rs. 4963.40 to the plaintiff-firm on account of the loss sustained by it. The plaintiff had claimed Rs. 5972.20 on account of the loss, but the two courts below decreed the claim for damages only in the sum of Rs. 4963.40. There was no dispute about the claim of Rs. 161/- on account of the proportionate amount of railway-freight and Rs. 15/- on account of the cost of notices sent. The Railway Administration could not have resisted the plaintiff's claim for the amount of Rs. 4963.40 which has been decreed as compensation for the loss incurred by the plaintiff. On complaint being made by its letter dated 29-8-1968 addressed to the Divisional Traffic Superintendent Varanasi of which copies were forwarded to D. C. I. Azamgarh Range and the Station Master Azamgarh also, it appears that the Railway Administration investigated into the matter and a responsible officer like the Assistant Commercial Superintendent, Varanasi, who must have been deputed for the purpose and must be presumed to have been acting within the scope of his authority, assessed the loss vide-Ext. 18. The Railway Administration thus admitted its liability to pay the said amount to the plaintiff, but it appears that the amount not having been paid for many months thereafter, the plaintiff served a notice dated 6-5-1969. He referred to the assessment made by the Assistant Commercial Superintendent Varanasi in that notice, but claimed compensation for the loss in the sum of Rs. 5972.20. The amount does not appear to have been paid to the plaintiff in spite of that notice and he appears to have served a further notice dated 8-7-1969, vide Ext. 27 under Section 80 C. P. C. claiming the said amount of Rs. 5972.20 on account of the damage to the goods, Rs. 161/- on account of the loss of proportionate railway fare and Rs. 15/- on account of notice charges. The amount was not paid even then. The suit giving rise to the present second appeal was thereafter filed on 10-9-1969. It has been decreed for the amount certified by the Assistant Commercial Superintendent, vide his certificate Ext. 18, to be the amount of loss suffered by the plaintiff. To now tell the plaintiff that his suit is liable to be dismissed because he did not make a proper claim within the time prescribed by law, as required by Section 78-B, is to make a mockery of the law. It is the Railway Administration which has been responsible for the delay in compensating the plaintiff for the loss of goods. The object of Section 78-B is not to deprive citizens of their lawful claims against the Railway Administration, but to prevent stale claims and to protect the Railway Administration against fraud by fixing a reasonable time of six months within which a claim for compensation on account of loss must be made inasmuch as it becomes more and more difficult to investigate into cases of loss to the goods or to assess the loss occasioned by damage to the goods or to fix responsibility for the same, in case the claim is not lodged by the person concerned as soon as may be after the occurrence of the loss or damage. I am supported in this view by the observations of the Supreme Court made in G. G. In Council v. Mussaddi Lal (AIR 1961 SC 725) (at page 727) in the context of the corresponding Section 77 of the Railways Act, as it stood before the amendments made by Act 39 of 1961. Indeed, as observed by the Supreme Court in the case of Niranjan Lal v. Union of India, AIR 1969 SC 23 the rigour of the provision has been considerably lessened by the amendments made by Act No. 39 of 1961.

(3.) So far as the facts of the present case are concerned, the Railway Administration could not take advantage of their own wrong by not paying the amount assessed to be due to the plaintiff by the Assistant Commercial Superintendent, vide Ext. 18, by pleading want of a notice under Section 78-B of the Indian Railways Act. The plaintiff's letter dated 27-8-1968 in response to which the Assistant Commercial Superintendent of the Railway Administration concerned assessed the plaintiff's loss must be deemed to have been a proper claim as contemplated by Section 78-B. The obiect of that provision was satisfied, more particularly in the light of the proviso added thereto, for the concerned authority of the Railway Administration was moved by that letter, Ext. 17, into making the required enquiry about the plaintiff's claim and to assess the loss suffered by it. As held by the Supreme Court in the context of Section 77 of the Railways Act, before its amendment, in Jetmull v. Darjeeling Himalayan Railway Co. Ltd., (AIR 1962 SC 1879) the provision has to be liberally construed. The same rule applies to Section 78-B after the amendment and in view of the proviso the Supreme Court has even observed in the case of Niranjan Lal Agarwal v. Union of India (AIR 1969 SC 23) that the kind of question that has been raised in the present case and used to be raised in the past, has now become academic in view of amendments to the Railways Act; the amendment referred to being the addition of the proviso which we now find in Section 78-B, and the addition of the Chief Commercial Superintendent as one of the authorities on which notice could be served under Section 140 of the Indian Railways Act.