KANYAKA PARAMESWARI CLOTH STORES Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff is the petitioner in this Civil Revision against an order of the learned Small Cause Court Judge, Berhampur in S.C.C. Suit No. 257 of 1956 whereby he dismissed the plaintiffs' suit.

(2.) The relevant facts, shortly stated, are these: In September 1955, the plaintiff, under an Invoice No. 170 dated September 22, 1955 consigned from Ahmedabad on Western Railway one bale of cotton piece goods for delivery to it at the Chhatrapur Railway Station on the South Eastern Railway. The goods arrived on October 15, 1955 and were left open on the platform at the Chliatrapur Railway Station instead of in a protected place with the consequence that the goods are alleged to have been drenched and damaged by rain water. The goods having not been taken delivery of within the reasonable time, demurrage Was charged. On December 28, 1955 an Assessment of Damage Certificate was issued by the Station Master Chhatrapur on the value of the bale. On January 27, 1956 a claim notice was served under Section 77 of the Railways Act. On August 26, 1956 notice under Section 80 Civil Procedure Code was served. Then, on December 20, 1956 the plaintiff filed a suit against the defendants for damages alleged to have been caused to the goods. In the written statement, the defence taken was that no notice under Section 80, Civil Procedure Code was served on the defendant -- Union of India and that the notice under Section 77 of the Railways Act was not valid and binding on the defendants. The further defence taken was that there was no carelessness on the part of the Railways; that no damage was caused to the goods, while in the custody of the defendants; that booking conditions were not complied with; and also pleaded that the suit was barred by limitation. The trial Court dismissed the suit against the defendant -- Union of India and ex parte against the defendants Nos. 2 to 4, namely, the Southern Railway, Central Railway and Western Railway for the reasons stated in the judgment.

(3.) The main question in this Civil Revision is whether in case of through- booking of goods, notice to one Railway, namely South Eastern Railway in the present case, was sufficient notice to the other Railways, in order that they may be made liable for the alleged loss or damage. Mr. H. Sen, learned Counsel for the plaintiff-petitioner, contended that notice to one Railway was sufficient notice to the other Railways also; and in support of his contention, he relied on a recent decision of the Madras High Court in P. R. Narayana Swami Iyer v. Union of India, (1959) 2 Mad LJ 479 : (AIR 1960 Mad 58), where it was held that in cases of through traffic where the goods consigned are carried over several railways, one notice to the General Manager of any one of the Railways concerned in the route over which the through traffic passed would be sufficient compliance with Section 77 of the Railways Act that the Section also does not lay down that such notice should be given to any particular railway administration such as the contracting railway or destination railway, etc. The learned Judges of the Madras High Court also expressed the view that Section 77 of the Railways Act does not require that notice of claim for loss or damages should be given to every one of the General Managers of the different railways over which a through traffic occurs; that the section contemplates only one notice and such a notice should be given to the General Manager of any one railway. As regards notice under Section 80. Civil Procedure Code, the Madras High Court held that the question of notice under Section 80 of Civil Procedure Code has no bearing on the liability of the Central Government in relation to the Railways run by it and it cannot govern the scope and application of Section 77 of the Railways Act; that the amendment of Section 80 Civil Procedure Code in 1948 inserting a special provision as to notice in case of railways cannot have any effect on the question of liability of Government, who now owns several railways after amalgamation. As against this view, a Division Bench of this High Court in Fagumani Khuntia v. Dominion of India, AIR 1956 Orissa 29 held that each railway administration is a separate entity and a different legal person capable of suing and being sued independently; that notice against the one Railway administration of the claim of the plaintiff is not, therefore, sufficient compliance with the provisions of Section 77 as to constitute notice against the other Railway administration. Thus, where the plaintiff, in that particular case, who had consigned goods from the Station P on the East Indian Railway to be delivered to the Station S on B. N. Railway (as it then was) sent a notice of claim for damages to the Claim Officer, B. N. Railway and a copy to the General Manager, E. I. Railway, it was held that the claim as against E. I. Railway was never brought to the notice of the said administration in any form as contemplated under Section 77 and the Section was not complied with as against the E. I. Railway. Indeed, there are two lines of cases on the point. The broad distinction in principle on these two lines of reasoning is based on the aspect that according to the one view, the railways are different legal entities although they are all under the Central Government, while according to the other view, the railways taken together forming a composite unit as such, is treated as one single administration, namely, the railway administration under the Central Government, Thus, according to the view which considers the railways as different legal entities, notice to one of the railways is not sufficient notice for purposes of making liable the other railways. According to the contrary view, namely that all the railways taken together, in a bunch,- constitute one legal entity, notice to one is sufficient notice to make all the railways concerned liable.