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Government of Mysore by the Chief Secretary and anr. Vs. Kapurchand and Brothers - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 650 of 1948-49
Reported inAIR1953Kant16; AIR1953Mys16; ILR1953KAR128
ActsMysore Railways Act - Sections 59, 61 and 122; Railways Act, 1890 - Sections 75, 77 and 145; Limitation Act, 1908 - Schedule - Article 31
AppellantGovernment of Mysore by the Chief Secretary and anr.
RespondentKapurchand and Brothers
Appellant AdvocateA.R. Somanatha Iyer, Adv. General
Respondent AdvocateM.R. Janardhanam, Adv.
.....of two bales of lotus assigned by respondent only one was delivered - subsequent to institution of suit part of goods contained in undelivered bale was returned to respondent and claim was reduced thereupon - appellant contended that suit was not maintainable for want of proper notice under section 61 and for declaration of goods not been made as required under section 59 - 'lohis' as declared by respondent was not same as 'shawls' as required under section 59 and therefore was not proper declaration - notice required under section 61 to be issued within six months which had not been so in instant case - suit therefore not maintainable. - motor vehicles act, 1988[c.a. no. 59/1988]section 163-a; [chidananda ullal & a.n. venugopala gowda, jj] compensation inadequacy of appealed..........d. w. 1's evidence as follows:'lohis are classed under general classification and not along with shawls. shawls are not included under general classification. in goods tariff there is nothing to show that lohis and shawls are identical.'the plaintiff has produced a letter from the cawnpore woollen mills intimating that lohis are included by the indian railway board in the general classification of goods and not treated as shawls for the purpose of section 75 of the indian act corresponding to section 59 of the mysore act and this is borne out by what is found in the goods tariff no. 26 of 1-6-1944 issued by the indian railways conference association. there is also a letter of the assistant secretary, railway board, to the secretary, upper india chamber of commerce, cawnpore, showing.....

1. On 29-6-1944, two bales of Lotus were sent by rail from Ambarnath Station to the plaintiff at Bangalore City. Of these, only one was delivered to the plaintiff and for recovery of Rs. 919-4-0 as the value of the undelivered bale he sued the Government of Mysore and the Mysore State Railways. Subsequent to the institution of the suit, part of the goods contained in the undelivered bale was given to the plaintiff and the claim was therefore reduced to Rs. 590-12-0. The suit was contested on various grounds but decreed. The decree has been confirmed in appeal.

2. In the second appeal preferred by the defendants the decree made in favour of the plaintiff is challenged mainly on three grounds viz., firstly that the articles said to have been lost being of the kind mentioned in the schedule to the Railways Act, declaration of the contents of the bales should have been made as required by Section 59 of the Railways Act and since there was no such declaration, the defendants are not liable for the loss; secondly that the claim has to fail for want of a proper notice under Section 61 of the Act and thirdly that the suit is barred by limitation. The first two depend on the interpretation of Sections 59 and 61 of the Railways Act and the last on the application of the relevant Article of the Limitation Act. According to Section 59 in the case of articles mentioned in the schedule declaration is necessary about the contents, if the value thereof is more than Rs. 100/- to render the Railways liable for toss. The declaration will put the Railway on guard to take extra care for safe transit of such goods and additional charges are levied to cover the responsibility. These goods are termed excepted goods on this account and enumerated in the schedule under the heading 'Articles to be declared and insured'. It is argued that Lohis are shawls mentioned as item (m) in the schedule and the total value of these being more than Rs. 100/-the Railway is protected from liability by the absence of the declaration. Besides the several articles specifically mentioned in the schedule it includes 'any article of special value which the Government may by Notification in the Official Gazette, add to this schedule' implying that the schedule relates to articles of special value.

What is called 'shawl' in common parlance in a loose sense which is a coarse mixture of woollen and cotton, priced low to attract large sales, cannot be deemed to be article of 'special value'. For the purpose of the schedule 'shawls' must be construed as having application to those 'shawls' which are of superior quality, texture, colour and finish. It may appropriately refer to Kashmir Shawls or other fabric requiring more than ordinary skill & cost. In -- 'Sarat Chandra Bose v. Secy. of State', 39 Cal 1029 it was held that the term refers to shawls of special value and cannot be taken to apply to articles of inferior value such as Alwans. The same view was adopted in --'E. I. Rly. Co. v. Dayabhai Vanmalidas', AIR 1922 Bom 416. The description of the articles as woollen in the consignment note is not of significance in view of the control price of a lohi being only Rs. 9-2-0 and D. W. 1's evidence as follows:

'Lohis are classed under general classification and not along with shawls. Shawls are not included under general classification. In goods tariff there is nothing to show that lohis and shawls are identical.'

The plaintiff has produced a letter from the Cawnpore Woollen Mills intimating that lohis are included by the Indian Railway Board in the general classification of goods and not treated as shawls for the purpose of Section 75 of the Indian Act corresponding to Section 59 of the Mysore Act and this is borne out by what is found in the goods tariff No. 26 of 1-6-1944 issued by the Indian Railways Conference Association. There is also a letter of the Assistant Secretary, Railway Board, to the Secretary, Upper India Chamber of Commerce, Cawnpore, showing that lohis are not excepted articles. In my opinion lohis are not shawls in the sense the term 'shawl' is used in the schedule and Section 59 of the Act cannot be relied upon to resist the plaintiff's claim.

3. Section 61 of the Act prescribes that within six months from the date the goods are consigned to the railways for delivery, a notice in writing to the Railway Administration should be issued to sustain a claim for compensation. As already mentioned, the goods in this case were consigned on 29-6-1944. The notice Exhibit H was issued to the Traffic Manager on 20th May 1946. Between these two dates there was a notification dated 9-11-1945 by which the Traffic Manager (was) delegated with the authority to receive notice and settle claim. It cannot now be said that it is defective as being addressed to the Traffic Manager instead of the General Manager. The decision in -- R. A. 166 of 44-45' to the effect that the notice issued to the Traffic Manager is invalid may have affected the suit but for the notification subsequently issued which provides for it. There is, however, the other objection that the notice was issued beyond the period of six months from the date of delivery for carriage of the goods and therefore the requirement of Section 61 is not satisfied. The correspondence about nondelivery was started by the plaintiff within six months but it was prior to the notification. The contention is that since it was the Traffic Manager and not Manager to whom the letters were then addressed there was no valid notice within time. In -- 'Govind Lal v. Governor-General in Council', AIR 1948 Nag 17, the facts were almost similar. As in this case one bale of cloth was not delivered to the consignee and the notice was sent to the Superintendent General and not as it should have been to the Manager or Agent of the Company. The notice was sent in October 1942 and in November 1942 the Superintendent General was authorised to receive notices under Section 77 of the Indian Act corresponding to 61 of the Mysore Act. The delegation of authority though subsequent to the date of the notice the notification was regarded as sufficient to validate the notice. The notification in the present case clearly states 'Any notice served wilt be treated as equivalent to one served on the Railway Administration in compliance with the provisions of Sections 61 and 122 of the Mysore Railways Act'. At the time the notification was issued the claim with respect to the undelivered bale was pending consideration and having regard to the terms of the notification and the fact that the Railway Administration treated it as sufficient to be acted upon the objection is not tenable. In this view of the matter, it is unnecessary to examine whether a notice is necessary at all in case of non-delivery -- a question on which there is cleavage of judicial opinion.

4. The only other point left for determination is whether the suit is barred by time. It is not disputed that the Article applicable to the case is Article 31 of the Limitation Act which provides a period of one year from the date the article had to be delivered. Obviously no time was fixed for delivery in the consignment note but in the ordinary course of business both the bales were expected to be delivered within a reasonable time. The date on which one bale was delivered was 24th July 1944 and if this is deemed to be the date on which the delivery of the other bale also was to be made, the suit is barred as it was filed more than an year after that date. The construction of the Article in this manner will put the consignee in peril of time running against him even though there is a prospect or possibility of the goods being delivered after some time. He will be obliged to resort to court before exhausting attempts or completion of inquiries to trace the goods and then withdraw the suit if the attempt succeeds.

The plaintiff in this case could not assume on the date one bale was delivered to him that the remaining one would not be given at all. On the other hand it is alleged that hopes of delivery were held out to him and as a matter of fact part of the missing bale was as a result of investigation got by him. A person in the position of plaintiff cannot be expected or required to file the suit until a positive refusal of delivery on the part of the Railway or the circumstances are such as to imply refusal. My attention was drawn to -- 'C. R. P. No. 322 of 1948-49 (Mys)', in which Balakrishnaiya J. has taken a different view. But the case seems to be distinguishable as it is stated to be one 'in which there was neither refusal of delivery nor of plaintiff being misled by assurances held out by defendant'. There is a volume of authority in favour of the view that the cause of action for a suit does not arise until there is positive or definite refusal by the Railways. In --Jainarain v. Governor-General of India', (1940) 4 Dom LR (Cal) 225, Chakravarthi J. after reviewing all the authorities on the matter observed as follows:

'This impressive array of authorities seem to me to establish beyond doubt that the time 'when the goods ought to be delivered', within the meaning of the third column of Article 31 is not the time when they should have been delivered in the normal course, at least in a case where there is no time fixed for delivery but the time when they ought to be delivered according to the subsequent promises by the Railway which informs the parties that it is carrying on enquiries. Time begins to run from after a definite refusal or declaration of inability to deliver. If I may say so with respect, that seems to me the only reasonable way of construing the Article.'

In -- 'Raigarh Jute Mills Ltd. v. Commr. for the Port of Calcutta' : AIR1947Cal98 , Gentle J. held that when the plaintiff brings a suit for damages for non-delivery of a part of the consignment, as in this case,

'the time under Art. 31 begins to run from after a definite refusal or declaration of inability to deliver and the cause of action arises when the owner of the goods is made aware that there will be no further delivery of the undelivered part of the consignment.'

A similar view is expressed in -- 'Palanichami Nadar v. Governor-General of India in Council', AIR 1946 Mad 133. See also -- 'Jugal Kishore v. G. I. P. Rly. Co.', 45 All 43 and --'Rivers Steam Navigation Co. Ltd. v. Eisweswar Kundu', . Since it was not till 27-4-1946 that the claim was repudiated and the suit was filed well within a year from that date, it is not barred by limitation. The appeal consequently fails and is dismissed with costs.

5. Appeal dismissed.

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