1. The petitioner, the Union of India owning the Southern Railways, attacks in this petition a decree passed against it in Small Cause 63 of 1956 on the file of the Court of the Civil Judge, Shimoga, filed by the respondent in the following circumstances:
2. A firm called Shaw Moolchand Asharam and Co., of Ahmedabad delivered to the railway on 14-2-1.955 eight bales of cloth for despatch and delivery to the plaintiff at Shimoga. When the bales arrived at Shimoga railway station, it was discovered that one of the bales was loose and the stitches on it appeared to have been removed and subsequently restitched.
The plaintiff having insisted on open delivery, such open delivery was given at Shimoga railway station on 17-3-1955. The record of the open delivery shows that the loose bale contained only 27 pieces as against the 32 mentioned in the Patties, and after deducting from the total yardage of 726 yards, according to the packing slip the actual length of 611 yards of the remaining 27 pieces, there was a shortage of 115 yards of cloth. The plaintiff sued for recovery of the cost of this together with notice and incidental charges. After going into the evidence the lower court found that the cost of these 115 yards came to Rs. 126-3-0. This amount along with the notice charges of Rs. 5-9-0 has been decreed. There is no controversy regarding this amount; nor can any such controversy be raised in this Revision Petition. Hence, these findings are not disturbed.
3. The plaintiff in his plaint claimed that he had sent two notices to the Railway purporting to be notices under Section 77 of the Railways Act, one dated 11-7-1955 and the other dated 15-9-1955. The railway did not admit that the former notice was ever received by them, and admitting the receipt of the latter notice they claimed that it was received more than six months after delivery of goods to them for despatch (14-2-1955) and therefore claimed that the suit was had for want of notice under Section 77 within the period of six months prescribed under that Section.
4. The plea of limitation based on Section 77 was the only substantial plea on behalf of the Railway, they having for the rest put the plaintiff to strict proof of his claim without making any specific plea on merits. The lower court rejected the plea of limitation with the following observation:
'Strictly speaking this is not a case in which compensation is claimed for loss, destruction or deterioration of goods delivered to be carried by the Railway and therefore Section 77 has no application he-cause it is not the case of either party that the goods were lost in the transit or they were destroyed by any cause or they were found in a deteriorated condition.
The plaintiff's case is clearly for short delivery of goods and the Assistant Claims Inspector's report shows the short delivery is not due to any loss but it must be due to the misconduct on the part of the railway administration.'
In this view the lower court did not give any finding on the question whether the notice of 11-7-1955 had been actually sent by the plaintiff and received by the defendant. On its findings as to the actual disappearance of 5 pieces and the cost thereof, the lower court decreed the suit for Rs. 131-12-0 with proportionate costs, interest, etc.
5. In the Revision Petition it is argued on behalf of the petitioner that the view or the lower court that no notice was necessary in this case under Section 77 is wrong. The counsel on behalf of the respondent has tried to support the judgment of the lower court on two alternative grounds. Firstly it is urged that as held by the lower court no notice at all under Section 77 is necessary in this case.
Alternatively, it is contended that the second notice of 15-9-1955, which has admittedly been received by the railway, was within time.
6. It will be convenient to dispose of the latter plea of the respondent before proceeding to deal with the main question whether notice is or is not necessary. Under Section 77 the period of six months is to' be counted 'from the date of delivery of animals or goods for carriage by the railway'. The natural meaning of these words, in my opinion, can only be that the relevant date is the date on which goods are handed over to the railway for carriage.
The learned counsel for the respondent however cites a ruling reported in Amarchand v. Union of India, AIR 1955 Assam 221 (A), where the learned Chief Justice of the Assam High Court observes that the words 'for carriage by railway' may be read as qualifying the term goods only and not the date of delivery of the goods. Read in that light it is suggested that the relevant date for the starting point of limitation under Section 77 would be the date on which the goods are delivered to the consignee at the point of destination.
It is observed that the contrary view would lead to an anomalous situation where claim under Section 77 will have to be preferred even before goods are delivered or even before the consignee is aware whether any loss or damage has been caused, having regard to cases not unknown where actual delivery took place long after six months from the date of consignment.
I regret I cannot bring myself to accept this interpretation in preference to what I have already stated to be the natural meaning of words in the Section. No anomaly or anomalous position need arise because a consignee is expected to know that goods have been consigned to him and if he finds that they have not arrived for a considerable length of time it is natural to expect that he would make enquiries and may be expected to issue statutory notice to the railway within the period of six months to keep his claim alive.
Indeed, the view expressed in the Assam case is likely to lead to a more anomalous situation in which there will be no starting point of limitation at all because it is conceivable that goods may never arrive and hence a claim against the railway in respect of such goods may never become time-barred. I have, therefore, no hesitation in declining to accept the view put forth on behalf of the respondent that the second notice of 15-9-1955 was received by the railway within the period of limitation prescribed by the Section.
7. The question whether notice under Section 77 is necessary in cases of non-delivery or short-delivery has been the subject of difference of opinion between the High Courts. Both sides have, therefore, placed before me leading cases representing the two points of view.
On behalf of the petitioner in support of the view that notice is necessary, reliance is placed' upon the following cases: Assam Bengal Railway Co., Ltd. v. Radhika Mohan Nath, AIR 1923 Cal 397 (A); Abdul Basheer Saheb v. Government of Mysore, ILR 1953 Mys 489; (AIR 1954 Mys 57) (B); Southern Railways Ltd. v. U. P. Shankar Rao, 1LR 1954 Mys 204 (C); Ramalingam Chettiar v. Union of India, 1955 Mad WN 171 (D).
On behalf of the respondent, in support of the view that no notice is necessary, the following cases have been cited: Two Full Bench decisions of the Allahabad High Court, Governor General in Council v. Mahabir Ram : AIR1952All891 , and Mutsaddi Lal v. Governor General in Council : AIR1952All897 , Rani Narain v. Dominion of India : AIR1953All460 , Janeshwar Lal Rajeshwar Lal v. Dominion of India AIR 1951 Punj 383 (II).
8. The difference of opinion arises on the interpretation of the word 'loss' contained in Section 77 of the Railways Act. That Section so far as is material for our present discussion reads as follows:
'A person shall not be entitled x x x x to compensation for the loss, destruction or deterioration of x x x x goods delivered to be so carried unless his claim to x x x x 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 of the x x x x goods for carriage by railway.'
The basic argument is that non-delivery of the consignment or short delivery, which after all is a species of non-delivery, is not a matter which falls within the description of loss, destruction or deterioration in the case of which alone the Section requires a notice. The further gloss is that notice will be necessary only if the non-delivery or short delivery is shown to have been occasioned by loss and not in any other case.
After a careful reading of the cases cited before me, it seems to me that the difference of opinion is more apparent than real, if regard is had to the real or substantial questions of principle involved. I shall, therefore, discuss these cases from the point of view of several principles or modes of approach discussed in these cases.
9. 1 may first take up the view stated in AIR 1951 Punj 383 (II), where reliance is placed on the existence of two Articles in the Limitation Act prescribing different starling points of limitation for claims against carriers, viz.. Article 30 for a suit for compensation for loss or injury to goods where the starting point is when the loss or injury occurs and Article 31 for a suit for compensation for nondelivery or delay in delivery of goods for which the starting point is when the goods are to be delivered.
The learned Judge who delivered judgment in that case observes that the distinction he seeks to make between loss, destruction and deterioration on the one hand and non-delivery and short delivery on the other hand receives statutory recognition from the fact that the Limitation Act has provided two different starting points for claims falling under these two heads.
The same or similar view on same grounds is also found expressed in a case decided by the Patna High Court reported in East Indian Rly. Co. v. Kali Oharan Ram Prasad, AIR 1922 Pat 106 (I). This view or this basis postulated in the decisions of the Punjab and the Patna High Courts is shown to he not sound by a Bench of the Calcutta High Court in the case reported in AIR 1923 Cal 397 (A1).
The provisions in the Limitation Act cannot necessarily be taken as formulating or affecting principles of substantive law. In fact if history of the several amendments carried in the Articles of the Limitation Act is looked into, it will be noticed that the amendments particularly regarding the starling point of Limitation have been effected more with a view to avoid difficulties met with in practical application of the unamended Articles than with a view to change the principles of substantive law.
Hence it is not unnatural to find two or more Articles of the Limitation Act overlapping each other. In any event, substantive provisions of other statutes cannot be interpreted on the basis of the wording of the Articles in the Limitation Act.
10. The two Full Bench decisions reported in : AIR1952All891 and : AIR1952All897 , already referred to stale the real distinction in sub-is lance between cases of loss, destruction and deterioration and cases of non-delivery and short delivery. The leading judgments in both the cases were delivered by Bind Basni Prasad J. It will be useful to give the following extract from his Lordship's judgment in the earlier case;
'The word 'loss' as occurring in the Section has not the same meaning as in ordinary parlance, for if it were so there was no need of putting the words 'destruction and deterioration' in juxtaposition with it. Even in destruction and deterioration, there, is loss to the owner of the goods.
Nevertheless, those two words occur side by side with the word 'loss' and when they so occur, meaning must be assigned to them and it must be held that where there is destruction or deterioration of goods, it is not 'loss' within the meaning of the word occurring in Section 77. The word 'loss' as used in this section means not loss to the owner but loss by the railway administration for if it meant loss to the owner then there was no need for the words 'destruction or deterioration'.
There is loss to the owner even when there is 'destruction or deterioration'. The word 'non-delivery' is a genus. Non-delivery of goods may be due to a variety of cases, e.g., (I) Loss of the goods by the carrier, that is to say, loss owing to acts such as theft and robbery. (2) Deterioration owing to natural causes. (3) Destruction owing to natural causes such as flood or artificial causes, e.g. incendiarism. (4) Conversion. (5) Detention, e.g., where there is a dispute about wharfage and the railway administration wrongfully detains the goods. (6) Misdelivery either by honest mistake or on account of fraud. (7) Capricious act of the railway employees, e.g., the goods even on arrival at the destination are not delivered to the owner without any rhyme or reason. (8) Wrongful sale of goods e.g., where the railway administration wrongfully sells the goods on arrival at the destination.'
(See : AIR1952All891 .)
Along with this extract, we may read the observation in AIR 1923 Cal 397 (A1), to the effect:
'The word 'loss' used in Section 77 is wide enough to include all cases where the goods arc not forthcoming and therefore includes a case of non-delivery.'
It may be conceded that loss can never mean loss to the owner for the reasons discussed in the Full Bench decision of the Allahabad High Court In its natural sense it would only mean that the goods have disappeared in the course of transit and neither the railway nor the consignor nor the consignee are or is in a position to trace them either in specie or due to some demonstrable cause such as misconduct on the part of any servants of the railway or theft, incendiarism, etc., detailed by Bind Basnil Prasad J., in the Allahabad case.
As pointed out by Richardson J., in AIR 1923 Cal 397 (Al), a distinction ought to be drawn between a case where the railway being in possession of the goods deliberately withhold the goods which they may deliver if they chose to do so, and a case where the goods are lost and are no longer in their possession. This distinction is also noted in the two cases of the old Mysore High Court relied upon by the petitioner.
In those cases it was held where the goods were unlawfully detained by the railway, no notice under Section 77 would be necessary but such notice would be necessary if the non-delivery was not a result of such detention.
11. We may next take un the principle discussed by Krishnaswami Nayudu J., in 1955 Mad WN 171 (D) and Horwill J., in Governor-General of India in 'Council v. G. Krishna Shenoy : AIR1951Mad327 . In holding that no notice was necessary in cases of nondelivery of goods, Horwill J., took the view that it was for the Railway company to establish that the goods have been lost whilst in their possession and therefore the railway could not deprive the plaintiff of his right of suit on the plea of want of notice under Section 77.
Here the principles of burden of proof have been relied upon to decide whether or not notice is necessary. With great respect I wish to point out that it is not justifiable either in logic or any known principle to relieve the plaintiff from the necessity of giving statutory notice by way of punishing the railway for their failure or inability to discharge the burden of proof.
Principles of burden of proof are of relevance only for deciding whether or not a liability exists. They could have no bearing on the question of the need or otherwise for a notice under Section 77. The view staled by Horwill J., was not accepted by Krishnaswami Nayudu J., in 1955 Mad WN 171 (D). In doing so, he relied upon a decision of the Bench of the Madras High Court reported in M. and S.M. Rly. Co. Ltd. v. Haridoss Banmali Doss, ILR 41 Mad 871: (AIR 1919 Mad 140) (K), in which the learned Judges observe that notice is required to be given to the railway within a reasonable time in order to enable them to make enquiries and if possible to recover the goods. That seems to me to be the correct principle.
That also is the justification for holding that no notice is necessary in cases of unlawful detention of the goods by the railway because the purpose for which notice is required docs not cist. The railways already have the goods in their possession and therefore do not stand in need of any notice to enable them to trace them.
Cases which hold that notice in the case of non-delivery or short delivery is required only when the non-delivery or short delivery was occasioned by loss and not otherwise can be justified or supported on the same principle as to the purpose for which the statute prescribes notice.
12. The question, therefore, is not whether non-delivery or short delivery has been occasioned by loss or any other cause but whether and if so when non-delivery or short delivery itself cannot be said to be loss within the meaning of Section 77 of the Railways Act. It is observed by Harries C.J., in Governor-General in Council v. Sarbeswar Das AIR 1949 Cal 420 (L), that loss must not be presumed from short delivery; but, if as I have already held the term 'Joss' in Section 77 would merely mean their disappearance or simply that the goods are not forthcoming, I do not think that there is scope for application of any presumption.
If goods are not delivered and the railway company cannot be said to have detained them and unlawfully withheld delivery, it follows 'ipso facto' that the situation is one of loss. I think that goods not delivered can always be said to have been lost or to have disappeared unless they are traced or are traceable to the possession of the railway or any other person to whom they might have been delivered by mistake or otherwise or their disappearance may he traced to misconduct on the part of any of the railway servants.
Hence unless the goods are so traceable, one can rightly say that the non-delivery or short delivery is itself loss within the meaning of the Section.
13. In this case the learned Civil Judge states that the report of the Assistant Claims Inspector discloses that the short delivery was not due to any -loss but it must be due to misconduct on the part of the railway administration. The report, in my opinion, does not support any such conclusion. It merely states that the bands on one of the bales were half loose and stitching appeared restitched.
These observations are not sufficient to come to the conclusion that any servant of the railway has been guilty of misconduct with reference to this bale. We have, therefore, only a case where goods are not forthcoming and nobody has tried to trace them. It is exactly in situations like this that notice under Section 77 is necessary with a view to enable the railway, to trace the goods, if it can.
14. I hold, therefore, that notice under Section 77 I is necessary in this case.
15. It is, however, not possible to decide the case finally here because the lower court has not given a finding on the question whether the notice which the plaintiff alleges he had sent on 11-7-1955 was in fact sent by him and received by the railway. Hence the case will have to go back to the lower Court for disposal after recording a finding on the question.
No further evidence will be permitted to be let in, but the lower court will decide this question on the evidence already on record. If it comes to the conclusion that the plaintiff did send and the Railway did receive the notice in time, the suit will be decreed. If it rejects the plaintiff's case and finds that no such notice as alleged by the plaintiff had been sent and received by the railway within the time prescribed by Section 77, the suit will be dismissed.
16. I, therefore, set aside the decree of the lower court and remand the suit for being heard and disposed of in the light of the observations contained in this judgment.
17. The costs of this Civil Revision Petition will abide the result of the suit and will be provided for in the decree which will be ultimately passed by the lower court.
18. Suit remanded.