FAGUMANI KHUNTIA Vs. DOMINION OF INDIA

JUDGEMENT

(1.) THIS is a First Appeal by the plaintiff against the judgment and decree dated 13 -5 -1949 of Sri B. K. Patra, Subordinate Judge of Puri, dismissing the plaintiff's suit for recovery of a sum of Rs. 5633/ -as damages on account of the injuries to the goods deliverable to the plaintiff at Sakhigopal, a station on the B. N. Railway. Defendant 1 is the Union of India representing the former East Indian and Bengal Nagpur Railways, and defendants 2 and 3 are the General Managers of Bengal Nagpur and East Indian Railways respectively. The plaintiff purchased 147 baskets of red potato seeds from Patna Ghat station and consigned the same on 31 -10 -1946 from Patna Ghat station on the E. I. Railway to be delivered to him at Sakhigopal. The consignment was delivered to the plaintiff on 21 -11 -1946, while the usual time taken for transit from Patna Ghat station to Sakhigopal was not more than 11 or 12 days. On taking delivery of the goods the plaintiff found the potato seeds in thoroughly rotten condition and therefore obtained a certificate from the Assistant Commercial Inspector of the B. N. Railway Administration to the effect that sixtyfive per cent of the goods had been damaged. The plaintiff in the present suit asserts that the damage was to the extent of eighty per cent. Thereafter the plaintiff sent a notice of claim to the Claims Officer, B. N. Rly., for compensation for the injury to the goods due to gross negligence and misconduct on the part of the employees of the Railway Administration. The plaintiff asserts that a copy of this claim was sent to the General Manager, E. I. Rly,, also. The claim was finally repudiated on 22 -2 -1948. Thereafter the suit has been brought on 13 -3 -1948.

(2.) THE defence is three -fold. First, that the consignment was sent under Risk Notes 'A' and 'B'. Risk Note A was executed as the consignor elected to despatch the goods at the owner's risk, that is, at a much reduced rate. There was in fact no misconduct on the part of the employees of the administration. The consignment itself was of perishable goods liable to be damaged and deteriorated on account of natural cause. Secondly, the plea was taken that 'the suit was not maintainable as against the East Indian Railway on account of the absence of notice under Section 77, Indian Railways Act (Act 9 of 1890); and thirdly, that the suit was barred by limitation under Article 30,Limitation Act as the suit was brought more than a year alter the date of delivery, that is, 21 -11 -1946.

(3.) IT is the admitted case of both parties that the consignment left Patna Ghat station on 31 -10 -1946 and reached Patna City station on the E. I. My. on that very day. The wagon containing the consignment was detained in the Patna City station till 10 -11 -1946 and reached Sakhigopal on 20 -11 -1946. The delay was on account of the wagon having been detained in the Patna City station for eleven days. It is the common case of both parties that after 10 -11 -1946 there was no delay at all and the consignment having left Patna city station on 10 -11 -1946 had reached Sakhigopal in due time. The misconduct, if any on the part of the Railway administration must be confined to the E. I. Railway administration if delay is not explained and not to the B. N. Rly. administration. Manifestly, therefore die, claim as against the B. N. Rly. administration must fail. The explanation of the delay put forth by the E. I. Rly. administration was that on account of the communal riots in Bihar during that period it was impossible to move the wagons during those days. We will take up this explanation for examination later; but we will first consider whether the suit is maintainable against the E. I. Rly. administration as no notice was given to the said administration under Section 77 of the Act. The position is indisputable that each Railway administration is a separate entity and a different legal person capable of suing and being sued independently. Notice against the B. N. Rly. of the claim of the plaintiff is not sufficient compliance of the provisions of Section 77 of the Act to constitute a notice against the E. I. Rly. Section 77 runs thus: 'A person shall not be entitled to a refund of an overcharge in respect of animals Or goods carried by railway or to compensation for the loss destruction or deterioration of animals or goods delivered to be so carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of delivery of the animals or goods for carriage by railway.' Indeed, there is no form for such a notice under Section 77 and the writing in any form need not be styled as such a notice. The intention behind the provisions of the section is that the particular railway, administration must be aware of the claim of the plaintiff against them so that they may avail of the opportunity of settling up the claim. What seems to us to be essential for compliance with the provisions of the section is that it must be preferred in writing by the plaintiff or on his behalf, and further what is pertinent for our case is that the plaintiff must lay his claim as against the particular railway administration whom he is suing for obtaining a decree on the basis of the liability.