MADANLAL KADIA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit to recover Rs. 5070 from the Union of India representing the defendant-Railways was dismissed by the Subordinate judge, Sambalpur. The plaintiff was the endorsed consignee in respect of a consignment of 220 bags of sugar booked from Bhatni to Jharsuguda. When the consignment was delivered there was a total shortage of 4437 kg. or 119 mds. of sugar. The plaintiff obtained a short certificate and served notices under Section 77 of the Railways Act and under Section 80 Civil P. C. Thereafter he filed a suit claiming damages for 4437 kg. of sugar and the cost of 36 gunny bags received in torn condition, amounting to Rs. 5070. The Union of India denied the title of the plaintiff to the goods and contended that the goods having been booked at owner's risk rate without compliance with the packing conditions and the bags being old and torn the defendant cannot be held liable for the loss. It was further contended that the statutory notices under section 80 Civil P. C. having not been duly served on the Railways, the suit was not maintainable. The correctness of the rate at which the damages were claimed was also disputed. At the time of hearing, however, the defendants did not press their contentions regarding shortage and the non-compliance with the packing conditions. The learned Subordinate Judge held that the rate at which the damages have been claimed is not excessive. A decree for the plaintiff was therefore to follow, but for the finding of the learned Subordinate Judge that the plaintiff failed to prove that notices under Section 80 Civil P. C. have been duly served on the defendants. In the result be dismissed the suit, but without any costs. Hence this appeal by the plaintiff.

(2.) THE only question therefore for consideration in this appeal is whether there was due service of notices under Section 80, Civil P. C. on the defendants,

(3.) THE plaintiff Madanlal Kadia is the sole proprietor of the business "madanlal sajan Kumar Kadia" at Jharsuguda. Notices were issued under Section 77 of railways Act and under Section 80, Civil P. C. in the name of M/s. Madanlal Sajan kumar Kadia. These notices were dated 20-1-61. Immediately afterwards the plaintiff discovered that the notices were defective obviously in view of the decision in AIR 1961 SC 1449, to the effect that where an individual carries on business in some name and style the notice has to be given by the individual in his own name. Plaintiff's case is that thereafter he served further notices under section 80, Civil P. C. , to the defendants, Ex. 6 is the copy of the notice produced by the plaintiff, and it is dated 8-10-61. Exts. 6 (a) to 6 (e) are the postal receipts which go to show that registered letters were sent to the defendants arid they were despatched to the North Eastern Railway and Eastern Railway on 9-10-61 and to the three other Railways on 10-10-61. P. W. 2 who is plaintiff's claim agent deposes that the receipts Exts. 6 (a) to 6 (e)related to the notice Ext. 6 sent to the defendants. Exts. 6 (f) to 6 (j) are the postal acknowledgments received from the defendant-railways in token of their having accepted certain registered letters and P. W. 2 says that Exts. 6 (f) to Ext. 6 (j) related to the receipts Exts. 6 (a) to 6 (e ). D. W. 1 who is a clerk of the office of the General Manager, South Eastern Railway produced 3 registers Exts. A, A/1 and A/2 maintained in General Manager's office in which receipts of all notices in the office of the General Manager are noted. It is with reference to these registers that he said that the General Manager's office did not receive any claim in respect of the suit consignment. But on being confronted with the Ext. 6 (f) the postal acknowledgment, D. W. 1 admitted that the letter relating to Ext 6 (f) had been received in his office. This letter has not been produced to show that the letter received under Ext. 6 (f) does not relate to the present claim. We therefore see no reason to disbelieve the evidence of P. W. 2 that Ext. 6 (f) related to the notice ext, 6 (e) sent to the General Manager, South Eastern Railway. No employee of any of the other Railways has been examined on the defendant's side to dispute the correctness of the statement made by P. W. 2. Exts. 6 (g) to 6 (j) are acknowledgments received from the General Managers of Eastern Railways, North eastern Railways, Central Railways and Northern Railways, respectively. That apart if a letter is properly directed and is proved to have been put into the post office it is presumed that the letter reached the destination in proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. AIR 1918 PC 102, Harihar Banerjee v. Ramshashi Roy. P. W. 2 has deposed that he himself had despatched the notices referred to above. He has no doubt stated that all these notices were despatched on the same day from Jharsuguda. Our attention was drawn by the learned advocate for respondent to the fact that notices relating to Ext. 6 (c) and Ext. 6 (d) were despatched on 9-10-61 from Barabazar post office and Exts. 6 (a) and 6 (e) were despatched from Khetrajpur post office on 10-10-61. It is well known that Barabazar and Khetrajpur Post Offices are situated within Sambalpur town. It is pointed out that the statement made by P. W. 2 that he had despatched all these notices on the same day from Jharsuguda should not be believed. P. W. 2's attention was not drawn to the discrepancy. Had that been clone he would have had an opportunity to explain the same. It is therefore not permissible for the respondents at this stage to base his criticism on this lacuna which in the circumstances we do not at all consider to be very material. It may be just a case of lapse of memory. On a consideration of the evidence on record we are satisfied that notices under Section 80, Civil P. C. had been served on the different Railways 2 months before 19-1-62 when the suit was instituted in Court. It is not disputed before us that the notice under Section 77 of the Railways Act had been duly served on the defendants.