UNION OF INDIA Vs. FIRM RAMDAS AMRITLAL PALI

JUDGEMENT

(1.) THIS revision application is directed against the judgment of the District Judge, pali, who passed a decree against the Union of India for a sum of Rs. 364/4/- on account of shortage in the goods delivered by the Railways to the consignee.

(2.) ON 17th June, 1955, under Railway Receipt No. Q. 71726, 1197 steel angles and 540 steel squares were booked from Jamshedpur by the Tata Iron and Steel company Ltd. to Marwar Pali, the consignee being the Firm of Ramdas Amrit Lal. When open delivery was taken by the consignee at Marwar Pali it was discovered that the consignment was short by 28 steel angles weighing 23 maunds and 32 seers. A shortage certificate was obtained from the railway official concerned at marwar Pali. Notices dated 21-12-55 under Section 77 of the Indian Railways Act were sent claiming compensation for short delivery. The Eastern, Northern and western Railways over which the consignment travelled did not settle the claim and the consignee firm, therefore, instituted a suit against the Union of India for the recovery of the sum of Rs. 562/2/- before the Civil Judge, Pali, alleging that the short delivery was due to the misconduct on the part of the Railway administrations. The learned Civil Judge held that the plaintiff failed to prove that the wagon was loaded with 1197 steel angles and 540 steel squares weighing 1008 maunds and 20 seers. The loading was done by the sender inside its own works and the Railway had clearly safeguarded its position by saying that the wagon was 'said to contain' the goods described by the sender. The Civil Judge further found that the Railways were not proved to be guilty of any misconduct or negligence and, therefore, the plaintiff firm was not entitled to any decree. Dissatisfied with the judgment and decree of the Civil Judge, the plaintiff-firm preferred an appeal, before the District Judge, Pali. The learned District Judge found that the plaintiff-firm was able to establish that there was a shortage of goods at the time of its delivery at Marwar Pali, the value whereof was Rs. 364/4/ -. He rejected the claim of the plaintiff-firm on items relating to interest, sales-tax, etc. on the two objections which were raised on behalf of the Railways that no notice under Section 77 was served within time on the Railways and that the notice served under Section 80 was not proper, the learned District Judge held, following the authority of this Court in Jhabar Mal v. The Union of India, ILR (1954) 4 Raj 662 that no notice under Section 77 was necessary in the circumstances of this case. He further held that the notice served under Section 80 of the Code of Civil Procedure was proper and accordingly decreed the plaintiff's case for the sum of Rs. 364/4/- with costs. It is against this judgment and decree that the Union of India has come up in revision.

(3.) THE learned counsel for the petitioner urges that the controversy concerning the interpretation of the word 'loss' in Section 77 between the various High Courts in india has now been resolved by an authoritative pronouncement of their lordships of the Supreme Court in Governor-General-in-Council v. Musaddi Lal, AIR 1961 SC 725 and the case of Jhabar Mal, ILR (1954) 4 Raj 662 is no longer good law. The learned counsel for the non-petitioner does not contest this proposition. The supreme Court has laid down that,-"section 77 of the Railways Act is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by section 72. The liability declared by Section 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or, destruction of goods; it docs not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression, 'loss, destruction or deterioration', what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner thereof. If because of negligence or inadvertence or even wrongful act on the part of the employees of the railway administration goods entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by Section 72 of the Railways Act". Refusing to project the considerations arising from the provisions of Article 30 or 31 of the Limitation Act upon the constructions to be put on Sections 72 and 77 of the Railways Act, their Lordships agreed with the view taken in M. and S. M. Rly. Co. Ltd. v. Haridoss Banmalidoss, AIR 1919 Mad 140 and held that the view taken in Jais Ram Ramrekha Dass v. G. I. P. Rly. Co. , AIR 1929 Pat 109 is erroneous. The word 'loss' in Section 77 of the Indian Railways Act thus received a wider connotation including cases where the goods, were not forthcoming and therefore service of a notice in such cases has been held to be equally obligatory. The view in the present case taken by the District Judge that no notice was necessary under section 77 of the Railways Act is clearly untenable and must be reversed. A notice as required by Section 77 of the Indian Railways Act was necessary in the present case despite the fact that it was a case of short-delivery.