SHANKAR NARAYAN Vs. BARSI LIGHT RAILWAY CO LTD

JUDGEMENT

(1.) THIS appeal arises out of a test suit filed by a pleader of Pandharpur to recover Rs. 17-11-0 by way of damages for discomfort and worry caused to him when he had to travel in a Pilgrim Traffic Vehicle of the Barsi Light Railway Company from Kurduwadi to Pandharpur to attend the Kartiki fair in November 1939. The plaintiff purchased a third class concession ticket from Dhulia to Pandharpur on November 20, 1939, and travelled by the G. I. P. Railway as far as Kurduwadi, and there he had to change over to the Barsi Light Railway; but he found that there was no room in any of the third class compartments and he was asked to sit in a goods wagon described as "pilgrim Traffic Vehicle". He further found that that vehicle was marked with the words "bags only" and was overcrowded. He then made a complaint to the respective Station Masters at every station on the way as far as Pandharpur and took their signatures on a copy of the complaint which he had preserved for himself. He filed this suit for damages to assert his right to travel by the usual third class compartment.

(2.) THE main facts are not in dispute. THE trial Court found that the plaintiff had to suffer "much mental and bodily agony, discomfort and inconvenience during his travel from Kurduwadi to Pandharpur due to the over-crowding and due to the carrying of him through the Pilgrim Traffic Vehicle". It held that by selling a third class passenger ticket to the plaintiff the Barsi Light Railway Company, Ltd. , entered into a contract with him that it would take him in a third class compartment as far as Pandharpur, and by requiring him to sit in a Pilgrim Traffic Vehicle it had committed a breach of the contract. But instead of awarding the damages demanded by the plaintiff, it awarded to him only the difference between the third class fare between Kurduwadi and Pandharpur and the charge for goods of his weight to be carried in a goods wagon between those two stations. THE difference amounted to Rs. 0-7-0 and the plaintiff was awarded that amount together with Rs. 3 as notice charges and 9-annas as interest, total Rs. 5.THE plaintiff had also impleaded Government representing the G. I. P. Railway Co. , but as that company had nothing to do with the alleged breach of the contract, the decree was passed only against the Barsi Light Railway Co. Ltd. In appeal, the learned District Judge held that there was no breach of contract on the part of the railway company and that the remedy sought by the plaintiff was misconceived. THE appeal was, therefore, allowed and the plaintiff's suit was dismissed with costs throughout.

(3.) THIS is a correct statement of the company's contractual obligation. The real question is Whether under the existing conditions reasonable accommodation was afforded to the plaintiff, and the standard of reasonableness varies with the circumstances existing at the time when the contract is entered into. In fact by reason of shortage of third class compartments that were usually run by the company, the Agent and Chief Engineer of the company wrote to the Secretary, Railway Board, Delhi, that he had designed "special Pilgrim Vehicles" to take the place of some of the third class coaches and pointed out that the new type of vehicle had the advantage that when not required for carrying passengers it could be used for carrying food grains or oil seeds in bags. He sent the specification of the proposed new type of vehicle and requested sanction for its adoption on the railway in the place of some of the third class coaches. His suggestion was accepted and sanction was given to the use of such Pilgrim Traffic Vehicles instead of the usual third class compartments whenever necessary. It is true that this sanction was not published in the Tariff but it was well-known that such Pilgrim Traffic Vehicles were running between Kurduwadi and Pandharpur on the occasions of the fairs at Pandharpur. The learned District Judge has pointed out that the plaintiff knew very well when he purchased the ticket that he might have to travel in such a Pilgrim Traffic Vehicle, and yet when he was asked to occupy such a vehicle he made a protest and took care to lodge a complaint to the Station Master. He now complains that the vehicle in which he was made to sit was overcrowded. But he never made that complaint to any of the Station Masters. The original copy of the complaint which he preserved for himself and on which he took the signatures of the Station Masters at every Station has been produced at Exhibit 30, and all that he stated therein was: I am a holder of a third class single fare return ticket No. 060 Ex. Dhulia to Pandharpur. Instead of providing me with a third class coaching vehicle, your Company offered me goods wagon to sit in. Please note that I am travelling in Wagon No. P. T. 73 'bags only' of 4 Down train under protest. He made no complaint to any of the Station Masters that the wagon in which he was sitting was overcrowded. On the contrary, the Assistant Station Master at Lavul, exhibit 39, has given evidence that when a complaint like exhibit 30 was handed over to him, he went along with a guard to the compartment occupied by the plaintiff. There he found that it was not overcrowded. He told him then that if he wanted, he would secure for him a seat in the third class compartment and also showed him the public notice published under the orders of the company that third class passengers would have to travel in Pilgrim Traffic Vehicles. But the plaintiff refused to accept the offer and told him that he would sit in the Pilgrim Traffic Vehicle as he wanted to make a test case. The contract evidenced by the sale of the third class ticket to the plaintiff was subject to the provisions of Section 67, and as held in Manendra Chandra v. E. I. R. Co. [1927] A. I. R. Pat. 352 that section not only operates in the case where there are compartments of a particular class available but there is no room in those compartments, but it also extends to a case where there is no compartment of that class at all, so that even if there was no regular third class compartment to be offered to the plaintiff, his only remedy was to refuse to travel by the Pilgrim Traffic Vehicle and ask for a refund of the fare within three hours after the departure of the train as provided by Sub-section (2) of Section 67.