DOMINION OF INDIA Vs. HAZARI LAL

JUDGEMENT

(1.) These two applications under Section 115, Civil P.C., arise out of two analogous suits against the Railway Administration of the Government of India. The suits were by the same plaintiff for recovery of compensation for non-delivery of portion of two consignments of thalis and lotas booked from Bankura Station on the B.N. Railway to Nirmali on the O.T. Railway. The plaintiff took open delivery in each case, and in each case shortage of the thalis and lotas was found, evidently due to pilferage en route. The learned Munsif found in favour of the plaintiff except with regard to notice under Section 77, Railways Act, and, considering the failure to serve this notice fatal to the suits, he dismissed them. In appeal the learned Subordinate Judge held that because the suits were based on failure to deliver, and not on loss, no notice under Section 77 was necessary. He, therefore, gave the plaintiff a decree in both cases.

(2.) I was responsible for these applications being referred to a Pull Bench for consideration of the question whether the word "loss" in Section 77 meant only actual loss of the goods or would include loss to the plaintiff owing to failure to deliver. At the hearing it has become apparent that this question does not actually arise and the reference was unnecessary. When the applications originally came before me, my attention was not drawn to the plaints, but it now Appears that there is a clear statement in para. 5 of the plaints that the goods in respect of which the claim was made had been lost through the negligence of the Railway Administration. As was pointed out by a Full Bench of this Court in Puran Das v. E.I. Rly. Co. A.I.R. 1927 Pat. 234 ., where the plaintiff's allegation in the plaint is that the goods have been lost owing to negligence on the part of the servants of the defendant company, it being so admitted in the plaint that there was a loss of the goods, the onus no longer lies upon the defendant to call evidence upon the point which was admitted in the pleadings, and therefore, the case must be treated on the pleadings as one of loss. For this reason in that case also it was held that the question referred to the Full Bench, whether non-delivery is included in the word "loss" within the meaning of the Risk Note Form B, did not arise.

(3.) The present cases are, therefore, clearly cases of loss even though the plaintiff may have framed the suits as for non-delivery. In any view, therefore, notice under Section 77 was necessary, and the learned Subordinate Judge was wrong. He ought to have maintained the dismissal of the suits by the learned Munsif.