J.S. Trivedi, J.
1. Scientific and Surgical Instrument Corporation of Calcutta despatched five microscopes through goods train under R/R No. D. 851862 dated 8-7-1959 for plaintiff-respondent to Meerut City Station. The Railway Receipt was endorsed in favour of the plaintiff. The five microscopes sent under one Railway Receipt were contained in three cases. Only two out of three cases were offered for delivery. The two cases are said to have arrived on 19-7-1959, Open delivery was. therefore, sought by the plaintiff and open delivery was given on 13-8-1959. The third case contained two microscopes. Notices under Section 80 Civil Procedure Code and Section 77 of the Indian Railways Act were then given to General Manager, Nor- ..,--them Railway and Eastern Railway. A sum of Rs. i560/~ was claimed as price of two undelivered microscopes and a sum of Rs. 15/- was claimed as costs of notices. On the refusal of the Railway authorities, the suit out of which this appeal arises was filed by the plaintiff Paul Scientific and Chemical Corporation. Meerut who were the endorsee of the Railway Receipt on 12-10-1960.
2. The suit was contested by the defendant-appellant who denied that the plaintiff firm was a Registered firm. It was also stated that the suit was barred by the law of limitation. It was further stated that the microscopes being scientific instrument of the value of more than Rs. 300/- and the consignor having failed to pay or engaged to pay in writing a percentage on the value so declared by compensation, the Railway Administration was absolved from responsibility for loss of the microscopes under Section 75 of the Indian Railways Act. The validity of the notice sent under Section 80, Civil Procedure Code and under Section 77 of the Indian Railways Act was also challenged.
3. The trial Court held that the plaintiff was a Registered firm and the suit was not barred by Section 69 of the Indian Partnership Act. The trial court further held that the goods were not delivered due to misconduct, negligence and carelessness of the Railways. According to the trial Court, Article 31 of the Indian Limitation Act applied and the period of limitation for the suit commenced to run from 13-8-1959. the date on which open delivery of the two cases was given and the suit was held to be within time. The trial court further held that the Railway authorities failed to prove that the goods were lost to the Railway. The protection of Section 75 of the Indian Railways Act was. therefore, re-tused. The suit of the plaintiff was thus decreed by the trial court. The lower appellate court confirmed the finding of the trial court and dismissed the defendant's appeal hence this second Civil Appeal.
4. Learned counsel for the appellant has contended that the suit was barred by the law of limitation whether Article 30 of the Indian Limitation Act applied or Article 31 of the Indian Limitation Act applied. Articles 30 and 31 of the Indian Limitation Act applicable to the suit were as under:
'30. Againsta carrier for compensation for losing or (injuring goods.
When the loss or in-juryoccurs.
'31.Against a carrier for compensation for non-delivery of or delay in deliveringgoods.
When the goods ought to bedelivered.'
5. His contention Is that the goods were lost to the Railway after their arrival at Meerut. He further Contends that under Article 31, the undelivered goods ought to have been delivered when the other two cases arrived at Meerut, i.e. on 19-7-59 and the period of limitation would not commence from 13-8-59, when open delivery of the goods was given.
6. Article 30 of the Limitation Act is applicable in case compensation is claimed for losing or injuring the goods. Loss or injury must be to the Railway. It cannot be inferred from mere non-delivery that the goods were lost to the Railway. The burden lies on the Railway to prove the loss and also to prove when the loss and injury occurred. The trial court has considered the various circumstances and has rightly come to the conclusion that loss to the Railway was not proved.
7. In paragraph 19 of the additional pleas it was stated:
'That theft of the case in question was committed on Meerut station shed after unloading the consignment and the same was lost. There has been no wrongful withholding or conversion of it by the Railway authorities.'
8. If this was the definite case of the appellant, it was incumbent on them to file the loading and unloading book of Meerut city and to prove that the loss was not due to misconduct, negligence or carelessness of the Railway administration. There was no occasion for the telegram (Ext. A-4) which shows that the undelivered parcel was wrongly loaded in some wagon from Meerut after it had reached Meerut. Not only the documents and evidence in possession of the appellant have been suppressed but no effort has been made to show what replies were received to the telegram (Ext. A-4).
The appellants have not only failed to prove that the goods were lost to the Railway, they have also failed to prove when the loss or injury occurred. The loss or injury could not be deemed to have occurred on the date the goods had reached the destination. i.e. on 19-7-59, because till 3-8-59 the case of the defendant had been that the goods were wrongly loaded hi some wagon. The way the goods were handled at Meerut also does not go to show that Railway authorities were not negligent or careless. The finding on the question of the loss and destruction will also be material while considering the liability of the Railway under Section 75 of the Indian Railways Act. It is no doubt true that the liability of a bailee is subject to the Indian Railways Act. but before protection can be sought under Section 75 of the Railways Act, loss to the Railway has to be proved. The concurrent finding of both the Courts is that title Railway has failed to prove that the disputed articles were lost. The lower appellate court has remarked that:
'Taking ell these factors into consideration, I am of the opinion that the appellants have not shown that the disputed articles have been lost and as such they are not entitled to claim any benefit of Section 75 of the Railways Act.'
9. Even if it was a case of loss, the loss or injury of the disputed articles in the absence of any definite evidence would be deemed to be the date when open delivery of the other goods was given and it was detected that the two microscopes in respect of which the suits were filed were not there.
10. Learned counsel for the appellant has next contended that if article 31 of the Limitation Act applies, then the period of Limitation shall commence to run on 19-7-59. i.e. the date on which the two cases arrived at the destination. His contention is that the third case should be deemed to have arrived on 19-7-59 and the period of one year should, therefore, commence from 19-7-59. The three cases of microscopes, as mentioned above, were despatched under one R/R. The consignee who was the only endorsee of the Railway Receipt could not presume that the undelivered case contained two microscopes. Moreover, the definite case taken by the Railway authorities was that of loss and not of non-delivery. From the record, it also appears that the third case was re-loaded at Meerut. If that was so, then also the third case could not be delivered with the other two cases and the time for suit for non-delivery would be in these circumstances run from the date when open delivery was given of the bulk of the goods, i.e. on 13-8-59. In Boota Mal v. Union of India, AIR 1962 SC 1716, it was laid down that:
'.....reasonable time will dependupon the facts of each case and that in the absence of any special circumstances the reasonable time would practically be the same between two stations as would normally or usually, or ordinarily be taken for the carriage of goods from the one station to the other. Fur-ther, there may be no difficulty in finding out the reasonable time where bulk of the goods have been delivered and only a part has not been delivered, for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that within which the bulk of the goods have been delivered.'
11. 'When goods ought to be delivered' refers to goods that were non-delivered and the identity of goods non-delivered, in the circumstances of thecase, could only be when the bulk of the goods have been delivered, i. e. the other two cases were delivered, i. e. on 13-8-59.
12. There is no dispute that if the time for filing the suit commences from 13-8-59 the suit is within limita-tion.
13. While dealing with Art. 30 of the Limitation Act, I have already referred to Section 75 of the Railways Act. Section 75 of the Railways Act casts a burden on the Railway authorities to prove the loss. The Railway having failed to discharge the burden of proof of loss, no advantage can be taken by the Railway authorities even though the goods were of the value of more than the prescribed limit. Learned counsel for the appellant has rightly not raised any other point.
14. The result, therefore, is thai this appeal has no force and is accordingly dismissed with costs.