Full Judgment Text
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PETITIONER:
JETMULL BHOJRAJ
Vs.
RESPONDENT:
THE DARJEELING HIMALAYAN RAILWAY CO. LTD. AND OTHERS
DATE OF JUDGMENT:
02/05/1962
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1962 AIR 1879 1963 SCR (2) 832
CITATOR INFO :
R 1965 SC1755 (5)
R 1969 SC 23 (9)
E 1969 SC 817 (12)
ACT:
Railways--Suit for compensation--Notice of claim--implied
notice--Limitation--Date when damage occurred--Indian
Limitation Act, 1908, (9 of 1908), First Schedule, arts. 30,
31--Indian Railways Act, 1890 (9 of 1890), s. 77.
HEADNOTE:
On May 10, 1946, the appellant had consigned 259 bales of
cloth from W, a station on the G. I. P. Railway, to be
carried to G, a station on the Darjeeling Himalayan Railway,
respondent No. 1. out of these bales only 169 reached the
destination on or about June 7, 1946. As the remaining
bales had not reached the destination the appellant sent a
telegram on July 1, 1946, to respondent No. 1 asking for
early delivery of those bales, and also a letter dated July
9, 1946, as follows : "we confirm our telegram .... on 1st
inst .... and regret very much to inform you that we have as
yet heard nothing in response thereto nor the part ninety
bales have reached destination. Will you, therefore, please
take necessary action to cause the part consignment to reach
destination immediately". The ninety bales actually arrived
at the station, G, shortly prior to December 21, 1946. on
which date the appellant wrote a letter to respondent No. 1.
stating that they had come to know that the consignment bad
arrived at G in a very damaged condition and requesting that
open delivery of the consignment be given immediately. Open
delivery was given on February 12, 1947, and the damage done
lo the goods was assessed by agreement between the parties.
As the appellant’s claim was not settled. he instituted a
suit for damages on April 9, 1948. Respondent No. 1 pleaded
that the suit must fail because (1) no notice as required by
s. 77 of the Indian Railways Act, 1890, claiming
compensation for the damage to the ninety bales wAs given by
the appellant to it within six months of the delivery of the
consignment to the G. I. P. Railways and (2) the suit was
barred by limitation having been instituted more than twelve
months of the date on which damage had occurred,
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833
Held (per Subba Rao and Mudholkar, jj., Sarkar, J.,
dissenting), (1) that the letter dated July 9, 1946, which
was sent within six months of booking the consignment amount
to a sufficient notice for the purposes of s. 77 of the
Indian Railways Act, 1890, and that a claim for compensation
must also be deemed to be implied in that letter.
Where a person says that his consignment has not been
delivered as it should have been according to the contract
between him and the railway, he must be regarded as making
it clear that he would be holding the railway, to its
contractual engagement which necessarily involves the
payment of damages for breach of that engagement.
(2) That the suit was not barred by limitation under art. 30
of the Indian Limitation Act, 1908; the burden was on the
respondent to establish that the loss or injury occurred
more than one year before the institution of the suit and
that it had not been discharged by it.
Union of India v. Amar Singh [1960] 2 S. C. R. 75 followed.
Per Sarkar, (1) Section 77 of the Indian Railways Act, 1890,
which is mandatory, requires a claim to compensation to be
preferred and a letter asking that a search for the goods be
made and they be delivered is not a compliance with that
section.
(2) A claim under s. 77 has to be preferred within the
period of six months therein mentioned whether the person
entitled to the goods is then aware that the goods have been
lost, destroyed or damaged or not.
(3) In the present case, the appellant came to know of th
damaged condition of the bales on December 21, 1946 and as
the damage must have occurred prior to that date the suit
which was filed on April 9, 1948 was clearly barred by
limitation under art. 30 of the Indian Limitation Act, 1908.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 402 of 1959.
Appeal from the judgment and decree dated March 15, 1956 of
the Calcutta High Court in Appeal from Original Decree No.
236 of 1949.
834
C. B. Aggarwala and Sukumar Ghose, for the appellant.
Rameshwar Nath, for the respondent Nos. 1 to 3.
D. N. Mukherjee and D. Gupta, for respondent No. 4.
1962. May 2. The following judgment were delivered. The
judgment of Subba Rao and Mudholkar, JJ., was delivered by
Mudholkar, J.
SARKAR., J.-This appeal arises out of a suit for recovery of
damages in respect of 90 bales out of 259 bales of cloth
delivered on May 10, 1946, at Wadi Bunder station on the
Great Indian Peninsula Railway, hereafter called the G. I.
P. Railway, to be carried from there to Giellekhola a
station on the Darjeeling Himalayan Railway, hereafter
called the D. H. Railway. In order to reach Giellekhola the
goods had to be carried over four railways, namely, the G.
I. P. Railway, East Indian Railway, hereafter Called the
E.I. Railway, the Bengal Assam Railway, hereafter called the
B.A. Railway and the D. H. Railway. The goods had been
booked through to be carried over all these railways. At
all material times the railways other than the D. H.
Railway, were owned by the Government of India, the D. H.
Railway being owned by a private company. At some stage of
the litigation the D. H. Railway Company went into
liquidation and the liquidators were brought on the record.
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On June, 7, 1946, 169 bales were delivered to the appellant
to whom the Railway Receipt had been endorsed.’ Various
correspondence thereafter ensued as to the remaining 90
bales with which alone the present litigation is concerned.
About September 1946, the wagon containing the 90 bales Was
traced at a station called Gadkhali on the
835
B. A. Railway. Further correspondence ensued and the 90
bales actually arrived at Giellekhola shortly prior to
December 21, 1946, on which date, having found the
consignment in a very damaged condition, the appellant
requested the D. H. Railway to give open delivery.
Thereafter on February 12, 1947 , open delivery of the
contents of the 90 bales was given to the appellant. At
that time the damage done to the goods was assessed by
agreement between the appellant, the B. A. Railway and the
D. H. Railway at Rs. 27,920-13-6. The appellant thereafter
on January 29, 1948, sent a notice under s. 80 of the Code
of Civil Procedure to the Secretary of the Railway
Department, Government of India, making a demand of Rs.
34,192 for damage suffered by it as a result of the
negligence of the railways in carrying the goods. This sum
was made up of the aforesaid ,sum of Rs. 27,920-13-6 and
certain other sums on account of the difference between the
ex-mill price and the retail price of the goods and of the
refund of the railway freight. A demand for a similar sum
was made on the D. H. Railway. This demand was repudiated
by the railways. The appellant, therefore., on April 9,
1948, filed the suit for damages.
The suit was decreed against the D.H. Railway way only by
the trial Court for Rs. 27,920-13-6. The D. H. Railway
preferred an appeal against the judgment of the trial Court
to the High Court at Calcutta. The appellant also filed
across objection contending that the suit should have been
decreed against all the railways and the decree should have
been for the full amount claimed by it., The High Court
allowed the appeal and dismissed the cross-objection. Hence
the present appeal.
It seems to me that there are two reasons why this appeal
should fail. The first is that the
836
suit was barred by limitations This case is governed by Art.
30 of the Limitation Act which provides for a suit against a
carrier for compensation for injuring goods, a period of one
year from the date when the injury occurs. Now it seems to
me that on the evidence produced in this case and the plaint
it has to be held that the damage to the goods occurred
before December 21, 1946. In the plaint the appellant
stated, "Before the receipt of those bales at Giellekhola in
December 1946 it was not possible for the plaintiff to know
about the aforesaid damaged condition of those bales, but no
sooner the same arrived the fact that the same arrived in
hopelessly damaged condition was brought to the notice of
the railway authorities concerned." On the same date, the
appellant wrote to the Political Officer of Sikkim for whom
it had purchased the cloth, stating, ",we have been advised
by our Tista Bridge agent that the consignment of 90 bales
has now arrived at Giellekhola but the same has reached in a
very damaged condition." Thirdly, there is a letter written
sometime prior to January 29, 1947, by the appellant to the
Political Officer of Sikkim, the precise date of which does
not appear in the record, in which it stated, "It has been
nearly one month the cloth arrived at Giellekhola in a
hopeless condition and no further step is being taken by the
railway. We beg therefore to request that steps may very
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kindly be taken to expedite the settlement of the same."
I think that these letters clearly establish that the damage
had occurred prior to December 21, 1946. On this part of
the case, the trial Court held that the damaged condition
referred to in the correspondence "’could only refer to the
outward aspect and could in no sense refer to the real
internal damage which certainly could not be ascertained
unless the bales were opened and open delivery was given."
It seems to me that the
837
trial Court overlooked the fact that it was not the
ascertainment of the damage by the appellant that is
relevant for the purpose of deciding the question of
limitation. What is relevant for that purpose is the fact
of the happening of the damage. It has to be observed that
this is not a case where it is alleged that the railways
fraudulently concealed the damaged condition of the goods.
The trial Court also overlooked the fact that in the plaint
the appellant made the case that the damage had occurred
prior to December, 1946. Lastly, the trial Court did not
notice that in one of the letters to which I have referred
in the preceding paragraph, the appellant expressly stated
that the cloth, that is, the goods themselves’ had been
damaged in December, 1946. The open delivery was demanded
by the appellant only to assess the quantum of the damage.
That appears from the appellant’s letter of December 21,
1946, to the Political Officer of Sikkim where it is stated,
’We beg, therefore, to request you to kindly instruct the
General Manager, D. H. Railway, Kurseong, telegraphically to
give open delivery of the consignment and to give a receipt
for any loss or damage." There is further nothing to show
that any damage had occurred after December 21, 1946, and
February 12, 1947, when open delivery was given to the
appellant. It would be idle to contend that only the
"outward aspect" of the bales had been damaged without their
contents being damaged. Then it has to be remembered that
the case made in the plaint is that the appellant came to
know of the damaged condition of the bales on December 21,
1946. If it came to know of the damage then, the damage
must have occurred before that date. The suit should,
therefore, have been filed within the period of one year of
the date when the damage occurred as provided in Art. 30 of
the Limitation Act and a further period of two months, being
the time requisite for the
838
notice under s. 80 of the Code of Civil Procedure to the
benefit of which the appellant was entitled under s. 15 (2)
of the Limitation Act. As the damage must have occurred
prior to December 21, 1946, the suit which was filed on
April 9, 1918, was therefore, clearly out of time.
The other reason why the appeal should fail is that no
’notice under a. 77 of the Railways Act, 1890, had been
given. That section so far as is material is in these
terms.
S. 77. A person shall not be entitled ...... to
compensation for the loss., destruction or deterioration of
goods delivered to be carried, unless his claim to the
compensation has been preferred in writing by him or on
his behalf to the railway administration,, within six months
’from the date of goods for carriage the delivery of the by
the railway.
The section requires a claim for compensation for the loss,
destruction or deterioration of goods to be preferred to the
railway administration within six months of the delivery of
the railway for carriage. It is well settled that the
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section is mandatory. If a claim is not preferred within
the time mentioned, it cannot be recovered from the railway;
a suit for such recovery must be dismissed.
Now I do not find that any claim was preferred by the
appellant on any of the railways at all within the
prescribed period. There are no doubt certain letters
written by the appellant to some of the railways including
the D. H. Railway within that period but all that these
letters did was to ask that an enquiry should be made by the
railway administration to trace the missing 90 bales and
that their delivery should be expedited. Not one of them
contained any claim to compensation
839
for deterioration of any goods. A request to trace goods
and expedite their delivery is certainly not a claim to
compensation in respect of them. The section requires such
a claim to be preferred. I am unable to hold that a letter
asking that a search for the goods be made and they be
delivered is a compliance with s. 77. Such a letter’ would
not .only not be in terms of the section nor serve the
purpose of the section. The object of the section is to
prevent stale claims: see Governor-General in Council v.
Musaddi Lal (1). Now if no claim is made within the
prescribed time, that object is not served. The letters in
this case do not expressly contain any claim against the
railway Administration nor can they be said to amount to any
claim by necessary implication. The view that I have taken
appears to have been taken, by some of the High Courts. In
Salem Dayal Bagh Stores Ltd. v. The Governor General in
Council (2) Happell, J., said, "In my opinion, Ex. P 3
cannot be regarded as a notice satisfying the requirement of
section 77. It makes no claim for compensation at all, and
is merely a letter stating that the goods bad not arrived
and asking that enquiries might be made." In Mardab Ali v.
Union of India (3) it was observed that a letter intimating
that nothing was known about the goods and requesting the
railway administration to locate then was held not to
satisfy s. 77. It was there observed that, "what is fatal
to the argument is that in none of these letters there is
any demand for compensation. A notification of a claim
under s. 77 must of necessity contain a demand for com-
pensation." No- case taking a contrary view has been brought
to our notice.
But it was said that in the present case it was impossible
to prefer any claim for damages for deterioration of goods
within the period mentioned
(1) (1961) 3 S.C.R. 647. (2) [1947] 1 M.L.J. 152.
(3) (1953) 56 Bom. L.R. 150.
840
in s. 77 for the appellant had no knowledge that expired. It
was therefore contended that the maxim lex non cogit ad,
impossibilia aut iniutlia applied and the performance of the
condition mentioned in the section should be dispensed with
on account of impossibility of such performance. Reference
was made to Maxwell on Interpretation of Statutes (10th ed.)
p. 385 in support of this contention. Hence it was said
that the claim in the present suit was maintainable though
no claim might have been preferred to the railway adminis-
tration as required by s. 77,
The contention proceeds on the basis of the impossibility of
preferring the claim within the time mentioned in a. 77.
But I think this is a misreading of the section. It does
seem to me that its terms can ever be impossible of
compliance. It ,requires that a claim to compensation for
loss, destruction or deterioration of goods must be pre-
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ferred within six months of the date of delivery of the
goods to the railway. A claim has to be preferred within
this period whether the person entitled to the goods is then
aware that the goods have been lost, destroyed or damaged or
not. If he is aware, there is, of course, no impossibility
of performance, If he is not aware, then also he must prefer
a claim for if he does not, the section. prevents him from
recovering anything later. If it were not so, the section,
which contains a mandatory provision for the protection of
the railway administration, would be rendered absolutely
nugatory. Suppose the contention of the appellant was,
right. Then it might legitimately say in case of non-
delivery of goods it was impossible for it to have made
claim for their loss or destruction within the period of six
months for it was not then aware that the goods had been
lost. or destroyed and would never be delivered to it. It
841
seems to me impossible that the section intended such
result. The section clearly contemplates than knowledge, a
claim must be preferred within the time mentioned in it. If
this is so in the case of loss or destruction of goods, it
must equally be so in the case of damage to goods. Want of
knowledge is irrelevant and does not make it impossible to
prefer a claim. It is not as if that in the case of damage
to goods a claim for any specific sum be made. The section
does not require that. It would be enough if a claim for
damages generally is preferred. So knowledge of the damage
is not essential for compliance with the terms of the
section. Indeed it seems to me that a claim for loss or
destruction of goods would cover a claim for damage to goods
if they were later delivered in a damaged condition. The
greater would include the lesser.
The view that I have taken seems to me to serve the object
of the section. As I have already said the object is to
prevent stale claims. Its object, therefore, is that a
claim should be made within the time prescribed so that the
railway administration might make the necessary enquiries
promptly and before the evidence concerning the claim was
lost. It is not permissible to put such an interpretation
on the section as would defeat this object and that is what
would happen if the appellant’s contention was accepted.
Therefore, in my opinion, the appellant should have
preferred a claim in this case in terms of s. 77. As it had
not done so, its suit must fail.
For these reasons I would dismiss the appeal with costs.
MUDHOLKAR, J.-This is an appeal upon a certificate granted
by the High Court of Calcutta under Art. 133 (1) (a) of the
Constitution from its judgment reversing a decree for
damages passed in
842
favour of the appellant firm by the Subordinate Judge.,
Darjeeling.
The admitted fact are briefly these. The appellant had
consigned 259 bales of cloth from Wadi-Bunder., a station on
the Great Indian Peninsular Railway (now the Central
Railway) to Giellekhola, a station on the Darjeeling
Himalayan Railway (now in liquidation) on May 10, 1946. Out
of these bales 169 reached the destination on or about June
7, 1946. As the remaining bales had not reached the
destination the appellant sent a telegram on July 1,1946, to
the General Manager of the D. H. Railway requesting him to
give early delivery of those bales. By a letter dated July
9, 1946, the appellant confirmed the telegram and requested
the General Manager to see that the remaining bales reached
the destination immediately. Thereafter some correspondence
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followed between the appellant and the Political Officer,
Sikkim, to whom the bales were to be delivered by the
appellant, and also between the Political Officer and the D.
H. Railway administration. It is, however,, not necessary
to refer to this correspondence and to certain other
correspondence which has been referred to in the statement
of the case except to the letter dated December 21, 1946,
addressed by the appellant to the D. H. Railway stating that
they have come to know that the consignment had arrived at
Giellekhola in "a very damaged condition" and requesting
that open delivery of the consignment be given immediately.
Open delivery was given to the appellant’s assistant
manager, Tulsi Ram, P.W. 1, on February 12, 1947, by the
Commercial inspector, D.H. Railway. The damage was jointly
assessed by the Commercial Inspector, D. H. Railway, and the
Claims Inspector, Bengal Assam Railway, at Rs. 27,920-13-6
and the assessment list was signed by them as well as by
Tulsi Ram. By a letter dated June 26, 1947, Mr. A. C.
Chatterjee,
843
Advocate, made a claim of Rs. 34,192 against the Manager of
the B. A. Railway, the General Manager of the D. H. Railway
and Messrs. Gillander Arbuthnot & Co., Managing Agents for
D. H. Railway. On the same day Mr. Chatterjee sent a
similar letter to the G. I. P. Railway administration. But
the Superintendent of Claims of that Administration at
Bombay repudiated the claim on the ground that it had not
been preferred within six months from the date of-booking as
required by s. 77 of the Indian Railways Act, 1890 (Act IX
of 1890). It may be mentioned that the consignment had to
pass over the railway systems of G. I. P. Railway, East
Indian Railway, Bengal Assam Railway, and Darjeeling
Himalayan Railway. It does not appear that any notice was
given to the E. 1. Railway. As the appellant’s claim was
not settled, he instituted a suit in the court of
Subordinate Judge, Darjeeling, on April 9, 1948, To that
suit the Dominion of India, presumably as representing the
G. I. P. Railway, E. 1. Railway and the B. A. Railway was
made defendant No. 1, the second defendant being the D. H.
Railway.
The appellant’s claim was denied by both the defendants.
Two written statements were, however, filed by the Dominion
of India, one as representing the G. I. P. Railway and the
other as representing the E. I. Railway. The only
contention in these written statements to which reference
need be made is non-compliance with the provisions of
a. 77 of the Indian Railways Act.
The main contesting defendant was the D. H. Railway. We
will refer to only those contentions raised by it which bear
on the arguments advanced by it. The first of these
contentions is that no notice as required by s. 77 of the
Indian Railways Act claiming’ compensation for the damage to
the 90 bales was given by the appellant to it within six
months of the delivery of the consignment to
844
the G.I.P. Railway. The second contention is that the suit
was barred by limitation, having been instituted more than
twelve months of the date on which damage had occurred.
The learned Subordinate Judge dismissed the suit in so far
as the Dominion of India was concerned on the ground that no
notice under s. 77 was given to the G. I. P. Railway
administration or the E. 1. Railway administration or the B.
A. Railway administration. He, however, held that the
telegram dated July 1, 1946, and the letter dated July 9,
1946, addressed to the Manager of D. H. Railway amounted to
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sufficient compliance with the requirements of s. 77. He
further held that the limitation for the suit is that
prescribed by Art. 30 of the ’Limitation Act. According to
him a suit instituted within one year from the date on which
the loss was discovered by the plaintiff would be within
time. On this finding the learned Subordinate Judge passed
for a decree Rs. 26, 92013-6 against the second defendant
and dismissed the suit against the first defendant.
The second defendant preferred an appeal before the High
Court but shortly thereafter went into liquidation.
Thereupon the liquidators were added as appellants. The
plaintiff preferred a cross-objection with respect to that
part of his claim which was dismissed. Eventually the
plaintiff amended the cross-objection and sought a decree in
the alternative against the G. I. P. Railway or the E. 1.
Railway.
The High Court allowed the appeal and dismissed the cross-
objection upon the view that the provisions of s. 77 have
not been complied with and that the suit which falls under
Art. 31 of the Limitation Act was barred by time.
845
The first question to which we address ourselves is whether
the appellant had complied with the requirements of s. 77 of
the Railways Act. The relevant portion of that section
reads thus:
"A person shall not be entitled to
compensation for the loss, destruction or det-
erioration of goods delivered to be so carried
unless his claim to compensation has been
preferred in writing by him or on his behalf
to the railway administration within six
months from the date of the delivery goods for
carriage by railway."
The High Courts in India have taken the view that the object
of service of notice Under this provision is essentially to
enable the railway administration to make an enquiry and
investigation as to whether the loss, destruction or
deterioration was due to the consignor’s laches or to the
wilful neglect of the railway administration and its
servants and further to prevent stale and possibly dishonest
claims being made when owing to delay it may be practically
impossible to trace the transaction or check the allegations
made by the Consignor. In this connection we way refer to a
few of the decisions. They are Shamsul Huq v. Secretary of
State (1) Mahadeva, Ayyar v. S. I. Railway Co. (2);
Governor-General in Council v. G. S. Mills Ltd., (3);
Meghaji Hirajee & Co., v. B. N. Railway Co. (4); Bearing in
mind the object of the section it has also been made by
several High Courts that a notice under s. 77 should be
liberally construed. In our opinion that would be the pro-
per way of construing a notice under that section. In
enacting the section the intention of the legislature must
have been to afford only a protection to the railway
administration against fraud and not
(1) (1930) L.R. 57, Cal. 1286. (2) (1921) I.L.R. 45, Mad.
135.
(3) (1449) I.L.R. 28 Pat. 178 (4) A.I.R. 1939 Nag. 141,
846
to provide a means for depriving the consignors of their
legitimate claims for compensation for the loss of or damage
caused to their consignments during the course of transit on
the railways.
Bearing in mind these consideration we think that the letter
of July 9, 1946 (Ex. I (y) ) which was sent,within six
months of booking the consignment amounts to a sufficient
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notice for the purposes of s. 77. The relevant portion of
that letter reads thus:
"We confirm our telegram sent to you reading
as under on 1st inst. Invoice 5 tenth May,
Wadi Bunder Geka part ninety bales not
reached. ’Please reach urgently" and regret
very much to inform you that we have as yet
heard nothing in response thereto nor the part
ninety bales have reached destination. Will
you, therefore, please take necessary action
to cause the part consignment to reach
destination immediately."
This letter clearly brings to the notice of the
administration that 90 bales out of the consignment of 259
bales-had not reached their destination. More than that by
this letter the appellant requested the General Manager of
the D. H. Railway to take appropriate action without delay.
It is true that a claim for compensation has Dot been made
by the appellant in this notice. In our view however such a
claim must be deemed to be implied in the notice. The
reason is obvious. Where a person says that his consignment
has not been delivered as it should have been delivered
according to the contract between him and the railway
administration he must be regarded as making it clear that
he would be holding the railway administration to its
contractual engagement which necessarily involves the
payment of damages for breach of that engagement. In our
opinion, therefore, not only
847
the object underlying s. 77 is satisfied by the letter dated
July 9, 1946 but also a claim for compensation is implied in
that letter.
Upon the language of s.77 it would appear that a notice
thereunder must be given to every railway administration
against whom a suit is eventually filed. No such notice was
given by the appellant to the’ G. I. P. Railway
administration or the E. I. Railway administration or the B.
A. Railway administration within six months of booking the
consignment and, therefore, in so far as they are concerned
the suit must be held to have been rightly dismissed. That,
however, would not help the second defendant. For, so far
as this defendant is concerned, as we have already held, a
notice under s. 77 was given within six months from the date
of booking.
The next question is with regard to limitation. According to
the High Court Art. 31 applies to a suit of present nature.
The first column of Art. 31 reads thus:
"against a carrier for compensation for non-delivery of, or
delay in delivering, goods."’ Column 3 reads thus:
"When the goods ought to be delivered." According to the
learned Subordinate Judge the proper article is Art. 30, the
first column of which reads thus:
"Against a carrier for compensation for losing or injuring
goods."
The third column reads thus:
"When the loss or injury occurs."
It seems to us that the appropriate article would be Art. 30
and not Art. 31 because what the appellant is claiming is
compensation for the damage
848
to the goods which were eventually delivered. Even so, the
question is what is the starting point of limitation.
According to col. 3 the starting point would be the date of
the loss or injury to the goods. Now when goods are
consigned by a consignor he would not be in a position to
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know the precise date on which the loss or injury has
occurred.’ In Union of India v. Amar Singh(1) this Court has
held that the burden would be on the railway administration
who want to non-suit the plaintiff on the ground of
limitation to establish that the loss or injury occurred
more than the year before the institution of the suit. No
attempt has been made on behalf of the D. H. Railway to show
that the damage in fact occurred more than one year before
the suit was instituted. All that is said on their behalf
is that the appellant knew in December, 1946, that the
consignment appeared to be damaged. In this connection
reliance is placed on. Ex. B which is a letter addressed
by the appellant to the D. H. Railway on December 21, 1946.
What is stated there is that the consignment has arrived at
Giellekhole in "a very damaged condition." This has
reference to the outer covering or the package and not to
the contents. Moreover, delivery was given nearly two
months after this and it is not possible to say whether the
damage which was noticed at that time had already been
caused before December 21, 1946, or was caused thereafter.
The D. H. Railway which had the custody of the goods could
alone have been in a position to say if at all, as to when
the damage, was caused. Upon the material before us it is
not possible to say that the suit was instituted beyond one
year of the accrual of the cause of action. It is,
therefore, not barred by time.
There is, however, one more question which needs to be
considered and that is whether the
(1) [1960] 2 S. C. R. 75, 88.
849
damage was caused on the D. H. Railway. In their written
statement they have contended that the consignment of 90
bales was received by them at Silguri from the B. A. Railway
and that it was transhipped by them to Giellekhole in the
same condition. No evidence, however, was led by them in
support of this contention. Under s. 80 of the Railway Act
it is for the consignor to establish, if he wants to sue a
railway administration other than the one which booked the
consignment, that the damage had occurred on its system.
The contention seems to us to be correct. But where a
consignor receives his consignment in a damaged condition
from the delivering railway the burden would shift to the
delivering railway to show that the damage had not occurred
on its railway. The burden could be discharged by showing
that the consignment was already damaged before it was
received by that railway, Here, no evidence having been
given on behalf of the D. H. Railway on the point we hold
that the presumption. has not been rebutted.
Upon this view we must allow. the appeal against the D. H.
Railway. The claim made for Rs. 5,500 odd by the appellant
in the cross-objection has not been pressed before us. We,
therefore, allow the appeal in part, set aside the decree of
the High Court in so far as the D. H. Railway is concerned
and restore that of the trial court. The appellant would be
entitled to his proportionate costs against the D. H.
Railway.
By COURT: In view of the majority opinion the Court allowed
the appeal in part, set aside the decree of the High Court
in so far as the D. H. Railway is concerned and restored
that of the trial Court. The appellant would be entitled to
his proportionate costs against the D. H. Railway.
Appeal allowed.
850
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