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Abdul Basheer Saheb Vs. Government of Mysore by the Chief Secretary to Government, Public Offices, Bangalore and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 218 of 1950-51
Judge
Reported inAIR1954Kant57; AIR1954Mys57; ILR1953KAR489; (1954)32MysLJ76
ActsMysore Railways Act - Sections 61; Indian Railways Act, 1890 - Sections 77
AppellantAbdul Basheer Saheb
RespondentGovernment of Mysore by the Chief Secretary to Government, Public Offices, Bangalore and anr.
Appellant AdvocateM.K. Sreenivasa Iyengar, Adv.
Respondent AdvocateK. Nanjundiah, Adv.
Excerpt:
.....it becomes a tax in the nature of tax on income being at 10% of the tax liability. it is to be noticed that the 10% tax liability may not even be the entire profit of the dealer and such levy of penalty while therefore becomes an oppressive levy being confiscatory of a percentage of the tax liability, partakes the character of a levy of tax on income, as the penalty has to be inevitably borne by the dealer and cannot be passed on to the consumer/buyer and therefore travels beyond the legislative competency of the state legislature, as enabled under entry 54 of list-ii of the 7th schedule to the constitution of india. the levy of penalty being a disproportionately high penalty, failing the test of reasonable restrictions saved under article 19(6) of the constitution of india vis-a-vis..........carried by railways or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or 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 animals or goods for carriage by railway.'the section is applicable only to a case in which a refund of an overcharge is claimed or to a case in which compensation for the loss or destruction or deterioration of animals or goods delivered to be carried is claimed. this is not a case of the first kind. in this case it could be said that there is loss, destruction or deterioration of salt to the extent of what has not been actually received by the mysore railways. but 104 bags.....
Judgment:

1. The suit in respect of which this appeal arises was filed for recovery of Rs.1241-10-6 as the value of 107 bags of salt not delivered, along with other claims such as freight paid, notice charges and interest. It is not disputed that 180 bags of salt were consigned at Bombay Harbour for delivery to plaintiff, on 25-4-44. Of these, 73 bags were delivered to plaintiff on 21-5-44. The remaining 107 bags of salt were not delivered. But on 30-8-1944, as per Ex. D, the Station Master, Shimoga, wrote to the plaintiff that 104 bags of salt would be delivered to him in case he was prepared to receive reasonable compensation for the loss of salt.

Plaintiff agreed to receive them and claimed a-compensation of Rs. 712/- (vide Ex. E). Evidently no further offer was made to the plaintiff by the Railway authorities as they thought that the compensation claimed was excessive. On 23-4-1945 a. no-ice was issued to the Chief Secretary to the Government of Mysore and the suit was filed on. 18-7-1945, i.e., after two months from the date of issue of the notice. The Courts below have dismissed the suit mainly on the ground that no notice was issued to the Railway authorities under Section 61, Mysore Railways Act corresponding to Section 77, Indian Railways Act. They also relied on the fact that it was not shown that the loss occurred on the Mysore Railways.

2. It will be noticed that the fact that the Mysore Railways offered 104 bags of salt in a damaged condition to the plaintiff agreeing to pay reasonable compensation, is more than sufficient evidence to prove that out of 107 bags of salt that had yet to be delivered to the plaintiff, lot were received in a damaged condition by the Mysore Railways. It is in evidence that these 104 bags of salt were sold by the Mysore Railways and that a sum of Rs. 715/- was realised by their sale. To this extent, it cannot be said that the plaintiffs suit is a suit that required notice under Section 61. Section 61, Mysore Railways Act (equivalent to Section 77) is as follows:

'A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railways or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or 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 animals or goods for carriage by railway.'

The section is applicable only to a case in which a refund of an overcharge is claimed or to a case in which compensation for the loss or destruction or deterioration of animals or goods delivered to be carried is claimed. This is not a case of the first kind. In this case it could be said that there is loss, destruction or deterioration of salt to the extent of what has not been actually received by the Mysore Railways. But 104 bags of salt were actually received and though received, they were not delivered to plaintiff. To this extent the claim is one for non-delivery of goods received and not lost, destroyed or deteriorated and no notice under the section is necessary.

3. As observed in -- 'Ramlal v. B. N. Rly. Co., Ltd., Calcutta' AIR 1933 Nag 21 (A):

'A notice under Section 77 prior to institution of a suit against a Railway Company, is necessary only in the case of loss, damage or deterioration. 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 where there has been no loss, damage or deterioration. such a notice is not necessary. Where the goods have actually arrived at the destination although there is non-delivery, a notice prior to the institution of the suit for non-delivery is not necessary because the company is not in such a case required to make enquiries as to where the goods were or what had become of them.'

In this case, to the extent the claim is in respect of the value of the salt actually received, it cannot be said that any notice is necessary. But the same cannot be said in respect of the balance of the suit claim relating to salt not actually shown or admitted to have been received by the defendant-company.

4. The appeal is, therefore, partly allowed andin modification of the decree of the Courts belowthere will be a decree for recovery of Rs. 715/-and notice charges of Rs. 5-5-6, with interest at6 per cent. from the date of suit till date of payment. Parties will bear their own costs throughout.

5. Appeal partly allowed.


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