NARENDRANATH BISWAS Vs. GOVERNOR-GENERAL IN COUNCIL

JUDGEMENT

(1.) THE plaintiff has filed this civil revision against the decision of the Civil Judge, Second Class, empowered Under Section 18, C.P. Courts Act, dismissing his claim for refund partly, i. e, to the extent of Rs. 21-4.0.

(2.) TO appreciate the questions involved in this revision the following facts are necessary to be stated. (a) Desirous of gravelling from Howrah to Raipur by Bengal Nagpur Railway, now owned by the non-applicant, the applicant paid at Howrah on 30-9-1947 third class single fare and the Railway Company issued to him a ticket No. 1577. The applicant also got his luggage booked at Howrah on payment and was granted a luggage ticket No. 37416. The applicant boarded the Bombay Mail, leaving Howrah in the afternoon of the 30th September and travelled in a third class compartment which, according to him, was not lighted during night and was also over-crowded. (b) As the train was reaching Bilaspur, an intermediate station between Howrah and Raipur, the next morning, the applicant found to his regret that his purse containing inter alia the two railway tickets, was stolen. The applicant thus lost the two tickets as a result of theft in a railway carriage. At Bilaspur, the applicant reported this fact voluntarily to the railway officer on duty. The officer demanded and recovered from the applicant Rs. 27-12-0 under the following heads: Rs. 9-12-0 for single railway fare from Howrah to Bilaspur. Rs. 9-12-0 for excess charge. Rs. 8- 4-0 for luggage. _____________ Rs. 27-12-0 The applicant continued the journey by the same train to Raipur where he was made to pay Rs. 3-8-0 i.e. RS. 1-12-0 for fare from Bilaspur to Raipur. RS. 1-12-0 for luggage. _____________ Rs. 3-8-0 (c) The applicant thereafter moved the railway administration for refund of the amounts realised from him at Bilaspur and Raipur on the ground that he had already paid the fare and the charge for luggage at Howrah and that the loss of tickets was due to reasons beyond his control. The railway administration did not countenance the applicant's claim and he was obliged to file the suit from which this revision arises.

(3.) THE facts are however held established by the lower Court and the learned Counsel for the non-applicant has not disputed them in this Court. On the facts found, the learned Judge of the lower Court decreed the plaintiff-applicant's claim for refund of RS. 10-0-0 recovered from him at Bilaspur and Raipur, for luggage. The claim for the refund of Rs. 21-12-0 i.e. 11-8-0 recovered as single railway fare from Howrah to Raipur and Rs. 9-12-0 recovered as excess charge was however dismissed. The view taken by the lower Court was that the amount was legally demanded and recovered under Section 113, Railways Act, and was therefore not re-fundable. The decision of the Judicial Commissioner's Court in G.I.P. Ry. Co. v. Mahadeo was relied on. Out of Rs. 21-42-0 which were recovered from the plaintiff applicant, Rs. 9-12-0 were realised as excess charge. This is obviously an illegal recovery except to the extent of Rs. 1-10-0. Where a passenger has incurred a liability for excess charge Under Section 113(1), the amount which can be realised from him on this account is mentioned in Sub-section (3) of that section. The applicant notified to the railway servant on duty the loss of his tickets voluntarily and without being detected by the railway officer and the amount which can therefore be realised from him as excess charge is Rs. 1-10-0 i.e. 1/6th of Rs. 9-12-0 otherwise payable under Sub-section (1) of the Act. The amount of RS. 8-2-0 realised in excess from the applicant was recovered illegally and that amount is liable to be refunded. Thus the applicant's claim for Rs. 8-2-0 in addition to Rs. 10-0-0 for which a decree is passed by the lower Court must succeed.