Harnam Singh, J.@mdashOn 24-8-1949, Messrs. Janeshwar Lal-Rajeshwar Lal Jain of Simla instituted Small Cause Suit No. 138 of 1948 for the recovery of Rs. 222-130 from the Dominion of India (now Union of India) on account of compensation for short delivery of goods weighing 1. maund, 21 seers sent by rail from Farrakhabad to Simla. The Defendant resisted the suit pleading inter alia, that the giving of notice u/s 77, Railways Act, 1890, hereinafter referred to as the Act was necessary to the maintainability of the suit, that the Plaintiff firm was to prove that short delivery was due to the negligence and misconduct of the railway authorities and that the Plaintiff firm had not served notice as required by Section 80, Code of Civil Procedure.
2. On the pleadings of the parties the trial Court fixed the following issues:
1. Whether the notice of claim as required by Section 77, Railways Act, was served on the E.I. Rly., N.W. Rly. and E.P. Rly.?
2. Whether the notice of suit as required by Section 80, Code of Civil Procedure, was served?
3. Has the Plaintiff the locus standi to sue?
4. Is the Plaintiff-firm a joint Hindu family firm?
5. Is the Defendant liable for the loss of the bag?
6. What was the price of the goods?
3. In deciding Small Cause suit No. 138 of 1948 the trial Court has found for the Plaintiff-firm on issues Nos. 2, 8, 4 and 5 but has dismissed the suit on the findings that the Plaintiff-firm had failed to prove that short delivery of the goods was due to the negligence and misconduct of the railway authorities and that the Plaintiff-firm had not preferred in writing a claim for compensation for short delivery to the Rly. Administration within six months from the date of the delivery of the goods to them.
4. Messrs. Janeshwar Lal-Rajeshwar Lal now apply u/s 25 of Act IX(9) of 1887 for the revision of the order passed by the trial Court on 2-3-1949.
5. Mr. Daulat Ram Manchanda has a double-baralled objection to the decree passed by the trial Court. He contends that the trial Court was in error in holding that the Plaintiff-firm had to prove that short delivery of the goods was due to the negligence and misconduct of the railway authorities. He then contends that in the case of short delivery of goods no notice is necessary u/s 77 of the Act.
6. Mr. Gurdev Singh, learned Counsel for the Respondent while supporting the judgment of the trial Court on issues 1 and 5 argued that the trial Court was in error in finding under issues 2 that a valid notice u/s 80, Code of Civil Procedure, had been served.
7. In the written statement Defendant, pleaded:
No notice of suit as required by Section 80, Code of Civil Procedure, has been served. That suit should, therefore, be dismissed.
In deciding issue 2 the trial Court said:
With regard to this the Plaintiff has proved Ex. P.3, the acknowledgment receipt, and Ex. P.4, the copy of the notice. It is clear from those that notice u/s 80, Code of CPC has been served.
8. Now, notice, Ex. P.4, was given to the Secretary, Central Govt. Rly. Board Office, stating the cause of action, the name, description and place of residence of the Plaintiff-firm and the relief which the Plaintiff-firm claimed. That being so, I have no doubt that the notice, Ex. P.4, served by the Plaintiff-firm on the Secretary. Central Govt. Rly. Board Office, Govt. of India, New Delhi, on 8-12-1947, satisfies the requirements of Section 80 of the Code.
9. As mentioned above, Mr. Daulat Ram Manchanda contends that notwithstanding the fact that the goods were booked under Risk Note "A" it was not the duty of the Plaintiffs to prove that the short delivery of the goods was due to the negligence and misconduct of the railway authorities. On this point Counsel cites
The word ''loss'' as used here (Risk Note ''A''), in my opinion, cannot refer to any loss of the goods, but refers to loss arising from the condition in which the goods are delivered. In other words, the risk note has no application at all to cases of failure to delivery, or pilferage because a thing never delivered cannot be said to have been delivered in any condition, and therefore, no question arises of any loss arising from the condition in which the goods were found on delivery.
Appendix a to Act IX(9) of 1890 sets out the form of Risk Note "A". Tho relevant portion of Risk Note "A" provides that the consignor agrees and undertakes to hold the Rly. Admistration over whose raillway the goods booked may be carried in transit from one station to another station harmless and free from all responsibility for the condition in which the goods be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss (sic) from misconduct on the part of the Rly. Administration''s servants. In plain English, the words "any loss arising from the same" occurring in Risk Note "A" mean any loss arising from the condition in which the goods booked are delivered to the consignee at destination. In other words, Risk Note Form "A" has no application to cases of failure to deliver the goods booked to the consignee because a thing never delivered cannot be said to have been delivered in any condition. Clearly, the trial Court was in error in deciding under issue 5 that considering that the goods were booked under Risk Note "A" it was the duty of the Plaintiffs to show that short-delivery was due to the negligence or misconduct of the railway authorities.
10. I now pass on to examine the contention that in the case of short delivery of the goods no notice is necessary u/s 77 of Act IX(9) of 1890.
11. In deciding issue 1 the trial Court seems to think that a suit for compensation for short delivery of the goods is a suit for compensation for the loss of the goods. This is not so for there is a real distinction between a suit against the Railway. Administration based on "short delivery of goods" and a suit against the Rly. Administration based on "loss of the goods". That this is so is apparent from the fact that short delivery may be due to the loss of the goods or may be due to detention, misdelivery, conversion, or wrongful sale of goods by the Rly. Administration. Clearly, "loss" and "short delivery" are not interchangeable terms. Section 72 of the Act deals only with the responsibility arising from loss destruction or deterioration of goods delivered to the administration for carriage and does not deal with the responsibility for short delivery where short delivery is not due to the loss of the goods.
12. Indeed, from the juxtaposition of the words "loss, destruction or deterioration" in Section 72 of the Act it appears that the word "loss" occurring in Sections 72 and 77 of the Act does not mean pecuniary or other loss suffered by the owner of the goods through being wrongfully deprived of the possession, use or enjoyment thereof, but means loss of the goods whilst in transit. In plain English the words "loss of the goods" occurring in Section 77 of the Act mean "disappearance of the goods delivered to the Administration to be carried by rai", for if the word "loss" in Section 77 of the Act was intended to mean "loss to the owner" the words "destruction" and "deterioration" would be redundant in that section, as loss in that sense would necessarily result from "destruction" or "deterioration" of the goods.
13. Tracing the history of the legislation on the point I find that the words "loss", "destruction" and "deterioration" occurring in Sections 72 and 77 of the Act appear to have been taken from Sections 152 and 161, Contract Act, 1872. Section 152, Contract Act reads:
The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151.
14. Clearly the word "loss" occurring in Section 152, Contract Act, is used in the sense of something that happens to the goods whilst in transit as distinguished from any loss or injury sustained by the owner. Indeed Section 72 of the Act which provides responsibility of the Rly. Administration for the loss, destruction or deterioration of goods delivered to the Administration to be carried by rail itself shows that the word "loss" has been used in that section to mean disappearance of the goods whilst in transit.
15. In clear words Sections 152 and 161, Contract Act, provide that up to the time of delivery the bailee is protected against lose destruction and deterioration of the goods provided he takes as much care of them as a prudent man of his goods would in the same circumstances. But if delivery is not made at the proper time by any default of the bailee then the bailee will be responsible for any loss, destruction or deterioration taking place thereafter no matter whether he has or has not taken adequate care of the goods. The duty of a bailee to return the goods at a proper time is laid down in Section 160, Contract Act, and a suit based on a "short delivery" is really based on a breach of the duty as laid down in that section of the Act. But as Section 160 is not mentioned in Section 72 of the Act a Rly. Administration is not entitled to limit its liability u/s 72 by an agreement embodied in Risk Note "A". From what I have said in this para it again appears that Risk Note "A" has no application to the case of short delivery of the goods.
16. Indeed the distinction between "Short-delivory" and "loss" receives statutory recognition in Articles 30 and 31 of Schedule 1 to the Limitation Act. Article 30 provides limitation for a suit against a carrier for compensation for losing or injurying goods and limitation for such a suit starts from when the loss or injury occurs while Article 31 provides limitation inter alia for a suit against a carrier for compensation for non-delivery starting from the date when the goods are to be delivered. Article 31 was added in the Limitation Act in the year 1877 but notwithstanding the addition of Article 31 to the Limitation Act it was not considered necessary in 1890 to add the words non-delivery, misdelivery or detention" to Sections 72 and 77 of the Act.
17. For the foregoing reasons, I think that a claim of short delivery where short delivery is not due to loss does not entail the necessity of a notice u/s 77 of the Act.
18. In supporting the judgment of the trial Court, Mr. Gurdev Singh based himself on Hill Sawyers and Co. v. Secy. of State 2 Lab. 133 : (A.I.R. 1921 Lab. 1 F.B.), D.B. Jiwandas v. Agent E.I. Ry. Co. 19 N.L.R. 139 : (A.I.R. 1923 Nag 314 ).
19. In Haryana Cotton Mills Co. Ltd. v. B.B. and C.I. Rly. Co. Ltd. Calcutta 8 Lah. 555 : (A.I.R. 1927 Lah. 471) Fforde J., (Campbell J. concurring) declined to accept the definition of the term "loss" given by Scottsmith, J. in Hill Sawyers and Co. v. Secy. of State 2 Lah. 133 : (A.I.R. 1921 Lah. 1 F.B.). Dealing with the same matter Campbell J., said-
It seems to me that the case of the relation of Section 77, Railway Act, to a suit for damages for non-delivery stands thus. A Plaintiff who institutes such a suit without having preferred a claim in accordance with Section 77 takes a considerable risk. In nine cases out of ten the railway comes into Court and pleads that the goods have disappeared out of the Rly''s. sight or control, that they are loss and hence that the suit is barred by the provisions of Section 77. This seems to have been the situtation in all the cases cited before us in which it has been held that failure to give notice of the claim u/s 77 bars a suit for compensation for non-delivery, and on the authority of those cases the Plaintiff might very well fail in his action.
The present, however, is the tenth case where the Rly. does not see either that the goods are lost or that they ever have been lost, even temporarily, where both parties are agreed that the goods have never been lost either by the Rly. or to the consignee and where neither has alleged any deterioration of the goods. In such circumstances I cannot see that the terms of Section 77 have any bearing upon the question whether the suit can lie or not.
That being so, no reliance can be placed upon, Hill Sawyers and Co. v. Secy, of State 2 Lah. 133 : (A.I.R. 1921 Lah. 1 F.B.) and clearly there was no necessity to serve a notice of the claim on the railway companies u/s 77 of the Act.
20. In Ram Lal v. B.N. Rly. Co. Ltd. Calcutta AIR 1936 Nag. 21 : 131 N.L.R. Sup. 79), Grille, J.C, in repealing a similar contention said-
The issues then are simply whether notice u/s 77, Railways Act, was necessary and whether Article 31 or Article 49, Limitation Act, applies. I am satisfied that in this case there was no necessity to servo a notice of the claim on the Defendant company. There is general agreement among the High Courts of India that such a notice is necessary only in the case of loss, damage or deterioration as the wording of the section itself shows. A claim of non-delivery may entail the necessity of a notice where such non-delivery may be due to loss of the goods concerned, but I do not interpret the judgment in D.B. Jiwandas v. Agent E.I. Rly. Co. 19 N.L.R. 139 : (A.I.R. 1923 Nag. 314) as applying to a case where it is common ground that there has been no loss, damage or deterioration.
21. In construing Section 77, Railways Act 1890, Ramaswami J., (Sinha J., concurring) said in
Non-delivery did not constitute ''loss'' within the meaning of Section 77, and no notice under that section was necessary in a suit for damages for non-delivery of a consignment.
22. In deciding
23. In Governor General in Council v. Sarbeswar Das AIR 1949 cal. 420 : (83 C.L.J.165) it was pressed before Harries, C.J., that Section 77 does not apply to a case of short delivery. Finding that the proposition as urged, before him was stated too broadly Harries, C.J., said-
Loss must not be presumed from short delivery but if short delivery is the result of loss then it appears that the authorities are clear that notice u/s 77 must be served.
In the clearest possible terms Harries C.J., laid down in Governor General in Council v. Sarbeswar Das AIR 1949 Cal. 420 : (83 C.L.J. 165) that Section 77 has no application to a case of short delivery where the short delivery is not duo to loss but Section 77 will apply to a case where part of the consigment has been lost by the rly. co. in the process of carrying it from the point of loading to the point of unloading. In other words, if short delivery is the result of loss then notice u/s 77 must be served.
24. In
The next question which arises is in regard to notice. No notice was given in this case and the learned Govt. Advocate contended that notice was required. u/s 77, Railways Act, IX(9) of 1890, notice is required in the case of a claim for compensation for loss, destruction or deterioration of goods. The present claim however is one for non-delivery or misdelivery and is not one for loss and we are satisfied that no notice was necessary in the present ease although the rulings are somewhat conflicting on the point.
25. From what I have said above, it follows that although at one time there was a conflict whether notice was necessary in the case of a suit for compensation for short delivery of the goods, there is now a general agreement among the High Courts in India that no notice is necessary to maintain a suit for compensation for short delivery if short delivery is not the result of loss.
26. In the suit out of which these proceedings have arisen the Plaintiff firm did not allege or admit that the goods were lost. No doubt there has been loss to the owner owing to short-delivery but the short delivery was not due to the loss of the goods delivered to the administration to be carried by rly. That being so, both on principle and authority I am definitely of the view that in the present case no notice was necessary u/s 77 of Act IX(9) of 1890.
27. No other point was raised in these proceedings.
28. Finding as I do that no notice u/s 77 of Act IX(9) of 1890 was necessary to maintain the suit and that Risk Note "A" has no application to the facts of this case I allowing the petition set aside the judgment and decree of the trial Court and decree the Plaintiff''s suit with costs throughout.
