PRAHLAD RAI AND SONS Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for the recovery of Rs. 670/12/6 claimed as price of 90 bags of cement plus Rs. 42/12/8 claimed as interest. On 8-6-1954 two consignments of cement bags of 585 bags and 530 bags respectively were booked from Tallayathu Madras, Railway Station on the Southern Railway for being delivered to the consignee at Sonda which is a railway station on the N. E. Railway. These two consignments were delivered to the consignee, viz., the plaintiff-appellant in three instalments: The first instalment of 495 bags was delivered on 10-6-1954, the second of 285 bags on 22- 6-1954 and the third of 245 bags on 2-8-1954. Thus the delivery was short by 90 bags. It is in these circumstances that after serving notices as required by Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure the plaintiff-appellant filed this suit against the Union of India through the general Manager. N. E. Railway, Gorakhpur, for the amount mentioned above.

(2.) THE main plea on which the claim was contested was that in view of the provisions of section 80 of the Railways Act no liability for short delivery could be fastened on the N. E. Railway since it received only 1025 bags and delivered the same number of bags to the consignee. Both the courts have recorded a finding on the basis of the very evidence led by the plaintiff-appellant that N. E. Railway received only 1025 bags. On that finding they came to the conclusion that the plaintiff-appellant had failed to prove that the loss occurred on the N, E. Railway Administration and hence having regard to the provisions of section 80 of the Railways Act no decree could be passed in favour of the appellant in the suit which is directed against the Union of India through the General Manager, N. E. Railway only. In that view of the matter the trial court dismissed the suit and the first appellate court has upheld that decree. It is in these circumstance that the plainiff has come up in second appeal.

(3.) LEARNED counsel has referred me to the case of Narayanswami lyer v. Union of India, AIR 1960 Mad 58 in support of his contention. There are no doubt, certain observations made in that case which go to help the appellant but they are in the nature of obiter. The point that arose for decision in that case was whether the notice given under Section 77 of the Indian Railways Act to one of the various railway administrations concerned in the transport of the goods was enough to entitle the consignee to maintain a suit for compensation for the loss. That question was raised on behalf of the Union of India on the basis of the provisions of Section 80 of the Railways Act. The Hon'ble Judges decided that Section 80 had nothing to do for the interpretation of Section 77 and Section 77 as it stood did not oblige that the notice required thereunder should be given to each of the various railway administrations. The first appellate Court has referred to the Full Bench case of Chandra Mohan Saha v Union of India AIR 1958 Assam I953 in support of the view taken by it. To the same effect is the case of Governor General of India in Council v. Sukhdeo Ram AIR 1949 Pat 329. Both these cases fully support the view taken by the first appellate Court. So long as Section 80 of the Indian Railways Act stands, as it is, it is obvious that if the plaintiff makes a choice in the matter of bringing a suit as against a railway administration other than the one which received the goods at the time of consignment, he with eyes open lakes upon himself the extra burden of proving that the loss occurred while the goods were in transit on that particular administration.