MARTAB ALI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE plaintiff sues to recover from the defendant a sum of Rs. 80,291-11-0 as compensation for loss occasioned to him by non-delivery of certain bales of cloth, consigned to Gujranwalla station by the plaintiff's agents in Bombay and delivered to the-B. B. and C. I. Railway. The defendant is the successor-in-title of the Governor-General in-Council and the B. B. and CJ. Railway has now/ vested in the defendant as its owner and administrator.

(2.) IT is the plaintiff's case that Messrs. Murlidhar Mohanlal, the plaintiff's agents in Bombay, purchased and consigned on his behalf 85 bales-of cloth for delivery to themselves at Gujranwalla station in the Punjab. According to the plaintiff, a railway receipt bearing No. B-49 485979 dated August 4, 1947, was issued by the railway company in favour of the plaintiff's agents and the consignment was booked at railway risk except in respect of 5 put of the 85 bales. The goods-did not reach their destination as about the middle of August 1947 there were serious disturbances, and riots in the Punjab. Correspondence ensued, in the course of which the Chief Commercial. Manager of the North Western Railway, Lahore, stated that the wagon No. 34,773 in which these-bales of cloth were loaded was looted near Mour on 23 August, 1947, and that the loss was caused-by circumstances beyond the control of the railway administration. Ultimately the plaintiff filed this suit on 20 September, 1950, after giving the requisite notice to the defendant Under Section 80, Civil P. C. In para. 7 of the plaint the plaintiff based his cause of action on loss suffered by him by reason of wrongful detention and/or non-delivery of the bales-and in the alternative on wrongful conversion, of the bales. He also pleaded that loss was caused, to him, as a result of the misconduct of the servants and officers of the railway administration. In para. 9 of the plaint it is stated that no notice-under Section 77, Railways Act was necessary as that section did not apply to the facts of the case and that the claim of the plaintiff was not affected by the absence of any such notice.

(3.) BY the written statement the defendant has contended that the plaintiff was not entitled to any relief as he had failed to give any notice to-the railway administration as required under Section 77, Railways Act. The defendant has also pleaded the bar of limitation. It is further pleaded that 80 out of the 85 bales were consigned under risk-note "form Z" and the remaining 5 bales were consigned under risk-note "form A". It is denied; that there was any misconduct of any servant or officer of the railway administration as alleged by the plaintiff. The defendant has also denied; that the non-delivery of the goods or loss of the said consignment was caused by the railway administration as alleged by the plaintiff.