DR MOTI LAL Vs. AGENT, ORRAILWAY

JUDGEMENT

(1.) This is an application in revision against a decree dismissing the suit of the plaintiff for damages for the loss of a cask of methylated spirit consigned to him by the Managing Proprietor of the Indian Distillery, Cawnpore. The claim is brought both against the railway and the consignor and has been dismissed against both. The facts set out in the plaint are that the cask in question was consigned from Cawnpore to the plaintiff at Roorkee on 25 July 1921, that it was lost by the railway staff in transit and never reaohed its destination, and that in June 1922 the plaintiff was given delivery of a cask which, on being opened, was found to contain water. The railway pleaded seotion 77 of the Indian Railways Aot, in bar of the suit againsfc them. It is admitted that no notioe in accordance with the seotion was given to the Agent of the Railway. The plaintiff urges that the seotion is not applicable beoause he did nob disoover the substitution of the methylated spirit for water till June 1922 more than six months after the goods were consigned. This, however, does not exclude the case from the plain letter of the seotion. The seotion is one whioh, as has been pointed out many times, works hardship in a number of cases. In para. 1 of the plaint the claim is distinctly based on the ground of loss so that it comes definitely within the seotion. The plaintiff's remedy however, was, when the six months were about to expire and the goods had not been delivered to him, to give notioe to the Agent under Section 77 and so preserve his right of suit. It is fair to the Railway Company to say that in this case an offer of compensation was made without prejudice during the oourse of the negotiations and was refused by the plaintiff as being insufficient.

(2.) As regards defendant No. 3 the suit has been dismissed on the ground that the plainb contained an admission that methylated spirit was duly consigned by this defendant. Applicant now says that this statement was merely based on the rail receipt and is to be construed as meaning that these goods purported to have been consigned, but no such qualifying words are to be found in the plaint.

(3.) The application, therefore, fails, but under the circumstanoes I make no order as to costs.