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Fagumani Khuntia Vs. Dominion of India Representing Old E.i. and B.N. Rly. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 74 of 1949
Judge
Reported inAIR1956Ori29
ActsRailways Act, 1890 - Sections 77
AppellantFagumani Khuntia
RespondentDominion of India Representing Old E.i. and B.N. Rly. and ors.
Appellant AdvocateG.C. Das and ;H. Sen, Advs.
Respondent AdvocateB.K. Pal, Adv.
DispositionAppeal dismissed
Cases ReferredDhanpat Mal Labha Mal v. Agent B. B. and C. I. Hly. Co.
Excerpt:
.....(2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - administration must fail. , dated 10/12-5-1947. it is better to quote the entire letter before making any comments on it. the suit, therefore, must fail on the above consideration only......case of both parties that the consignment left patna ghat station on 31-10-1946 and reached patna city station on the e. i. my. on that very day. the wagon containing the consignment was detained in the patna city station till 10-11-1946 and reached sakhigopal on 20-11-1946. the delay was on account of the wagon having been detained in the patna city station for eleven days. it is the common case of both parties that after 10-11-1946 there was no delay at all and the consignment having left patna city station on 10-11-1946 had reached sakhigopal in due time. the misconduct, if any on the part of the railway administration must be confined to the e. i. railway administration if delay is not explained and not to the b. n. rly. administration. manifestly, therefore die, claim as against.....
Judgment:

Mohapatra, J.

1. This is a First Appeal by the plaintiff against the judgment and decree dated 13-5-1949 of Sri B. K. Patra, Subordinate Judge of Puri, dismissing the plaintiff's suit for recovery of a sum of Rs. 5633/-as damages on account of the injuries to the goods deliverable to the plaintiff at Sakhigopal, a station on the B. N. Railway. Defendant 1 is the Union of India representing the former East Indian and Bengal Nagpur Railways, and defendants 2 and 3 are the General Managers of Bengal Nagpur and East Indian Railways respectively.

The plaintiff purchased 147 baskets of red potato seeds from Patna Ghat station and consigned the same on 31-10-1946 from Patna Ghat station on the E. I. Railway to be delivered to him at Sakhigopal. The consignment was delivered to the plaintiff on 21-11-1946, while the usual time taken for transit from Patna Ghat station to Sakhigopal was not more than 11 or 12 days.

On taking delivery of the goods the plaintiff found the potato seeds in thoroughly rotten condition and therefore obtained a certificate from the Assistant Commercial Inspector of the B. N. Railway Administration to the effect that sixtyfive per cent of the goods had been damaged. The plaintiff in the present suit asserts that the damage was to the extent of eighty per cent.

Thereafter the plaintiff sent a notice of claim to the Claims Officer, B. N. Rly., for compensation for the injury to the goods due to gross negligence and misconduct on the part of the employees of the Railway Administration. The plaintiff asserts that a copy of this claim was sent to the General Manager, E. I. Rly,, also. The claim was finally repudiated on 22-2-1948. Thereafter the suit has been brought on 13-3-1948.

2. The defence is three-fold. First, that the consignment was sent under Risk Notes 'A' & 'B'. Risk Note A was executed as the consignor elected to despatch the goods at the owner's risk, that is, at a much reduced rate. There was in fact no misconduct on the part of the employees of the administration. The consignment itself was of perishable goods liable to be damaged and deteriorated on account of natural cause.

Secondly, the plea was taken that 'the suit was not maintainable as against the East Indian Railway on account of the absence of notice under Section 77, Indian Railways Act (Act 9 of 1890); and thirdly, that the suit was barred by limitation under Article 30,Limitation Act as the suit was brought more than a year alter the date of delivery, that is, 21-11-1946.

3. The Court below accepted each of the contentions of the defence and dismissed the suit. If any of the three contentions of the defence succeeds the plaintiff is bound to be non-suited.

4. It is the admitted case of both parties that the consignment left Patna Ghat station on 31-10-1946 and reached Patna City station on the E. I. My. on that very day. The wagon containing the consignment was detained in the Patna City station till 10-11-1946 and reached Sakhigopal on 20-11-1946. The delay was on account of the wagon having been detained in the Patna City station for eleven days.

It is the common case of both parties that after 10-11-1946 there was no delay at all and the consignment having left Patna city station on 10-11-1946 had reached Sakhigopal in due time. The misconduct, if any on the part of the Railway administration must be confined to the E. I. Railway administration if delay is not explained and not to the B. N. Rly. administration. Manifestly, therefore die, claim as against the B. N. Rly. administration must fail. The explanation of the delay put forth by the E. I. Rly. administration was that on account of the communal riots in Bihar during that period it was impossible to move the wagons during those days. We will take up this explanation for examination later; but we will first consider whether the suit is maintainable against the E. I. Rly. administration as no notice was given to the said administration under Section 77 of the Act.

The position is indisputable that each Railway administration is a separate entity and a different legal person capable of suing and being sued independently. Notice against the B. N. Rly. of the claim of the plaintiff is not sufficient compliance of the provisions of Section 77 of the Act to constitute a notice against the E. I. Rly. Section 77 runs thus: 'A person shall not be entitled to a refund of an overcharge in respect of animals Or goods carried by railway 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 delivery of the animals or goods for carriage by railway.'

Indeed, there is no form for such a notice under Section 77 and the writing in any form need not be styled as such a notice. The intention behind the provisions of the section is that the particular railway, administration must be aware of the claim of the plaintiff against them so that they may avail of the opportunity of settling up the claim.

What seems to us to be essential for compliance with the provisions of the section is that it must be preferred in writing by the plaintiff or on his behalf, and further what is pertinent for our case is that the plaintiff must lay his claim as against the particular railway administration whom he is suing for obtaining a decree on the basis of the liability.

5. Mr. Das, appearing on behalf of the plaintiff-appellant, has however relied upon two documents, Exs. 3(b) and 2, in support of his contention that there had been sufficient compliance of the provisions of Section 77. There is no dispute that in fact notice under Section 77 was given to the B. N. Rly. administration. Exhibit 3 (b) is the letter from the plaintiff to the Claims Officer B. N. R., dated 14-12-1946.

Here the 'plaintiff levies claim at Rs. 5611/7 as against the B. N. Rly. administration on account of the damage to the consignment of 147 baskets of potato seeds booked from Patna Ghat station to Sakhigopal under Invoice No. 1, dated 31-10-48.

The plaintiff's case is that on that very day a copy of the notice of claim as asserted in Ex. 3(b) was also sent to the E. I. Rly. There is no mention within the four comers of Ex. 3(b) that a copy ofthe notice was also sent to the E. I. Rly. by the plaintiff., There is no other evidence in support of this assertion of the plaintiff that a. copy was in fact sent to the E. I. Rly. administration. Mr. Das further relies upon Ex. 2 which is a letter from the Chief Commercial Manager of E. I. Rly. to the Claims Officer B. N. Rly., dated 10/12-5-1947. It is better to quote the entire letter before making any comments on it.

EAST INDIAN RAILWAY.

Office of the Chief Commercial Manager (C),

Mint House, Benaras Cantt.

No. OWC. 2/142/47 Spl. Dated 10/12-5-47.

To

The Claims Officer, B. N. Rly. Calcutta.

Re:-- Patnaghat to Sakhigopal, Inv. IRR 026142 of .31-10-46 -- 147 baskets potato seeds. Claim for Rs. 5611/7/0. Your No. Y. P./s311 ACV of 18/19-3-47.

The consignment was held up at Patna city dueto communal riot having broken out in Bihar Province and as such the claim may be repudiated asdue to unforeseen circumstances beyond the controlof Railway Administration.

Sd/- Illegible.

For Chief Commercial Manager.

T. C. A. For information and order please. The consignment of 147 baskets of potato charged at O. R. rate was received at Sakhigopal on 19-11-46 & delivered on 21-11-46 on assessment of 65 per cent, damage. Claim for Rs. 5611-7-0 is pending.

Sd. Illegible.

Repudiate the claim on the above ground.

Sd/- Illegible 2-6.

It appears the Chief Commercial Manager explains to the Claims Officer, B. N. Rly., that the consignment was held up at Patna city station due to communal riot in the Province of Bihar and on this ground the claim may be repudiated. But the significant feature which would substantially comply with the provisions of Section 77 that, the claim as against the particular Railway administration must be brought to their notice is conspicuously absent in this correspondence. There is nothing in this letter to indicate that it was brought to the notice of the E. I. Rly. administration that the plaintiff levied any claim as against them. In our view, therefore, the plaintiff has not complied with the provisions of Section 77 of the Act as against E. I.. Rly. administration.

Our view gains strength by reference to a decision of their Lordships of the Calcutta High Court in a case' the facts of which are very similar to ours reported in -- 'Duni Chand Ram Saran Das v. Secy. of State', AIR 1931 Cal 585 (A). Their Lordships observe that notice under Section 77 to one railway administration cannot avail a party for claim against another railway administration. Where a notice of claim is given under Section 77 to one railway administration while a copy of the notice is sent to agent of another for information, and compensation is demanded from the latter there is no notice under Section 77 and the mere sending of copy of notice does not amount to service of notice. ... .. .....

The section accordingly contemplates that thereshould be a proper notice of claim preferred in writing to the railway administration from which the compensation is sought or which is asked to settle the claim. According to the wording of the section it is clear that the notice must he addressed to the railway administration from which the compensation is demanded'.

In that case their Lordships of the Calcutta High Court relied upon a decision of the Bombay High Court reported in -- ('E. I. Rly. Co. v. Jethmall', 26 Bom 669 (B), where no notice of the plaintiff claim had been directly addressed to the E. I. Rly. Company. The plaintiffs relied upon a notice which they had addressed to the B. B. C. I. Rly. making a claim against that company only.

The latter company had at once informed the E. I Rly. company of the plaintiffs' claim and had given notice that in case the plaintiffs sue them they would expect the E. I. Rly. to bear all expenses. Further correspondence took place between the, two companies with reference to the plaintiffs' claim. It was held by their Lordships that in the circumstances it could not be said that there was notice under Section 77 against the E. I. Rly.

6. Mr. Das, however, strongly relies upon a decision of the Lahore High Court reported in --'Dhanpat Mal Labha Mal v. Agent B. B. and C. I. Hly. Co.', AIR 1928 Lah 438 (C). The plaintiff sued jointly B. B. C.I. Rly. and N. W. Rly. for damages. No notice was given direct to the B. B. C. I, Rly. But the notice which he sent to the N. W. Rly. was forwarded by the latter to the B. B. C. I, Rly. The distinguishing feature is that B. B. C. I. Rly. made enquiries into the matter and sent a letter to the plaintiffs counsel admitting that the loss took place on their line but repudiated their liability on the basis of the risk note.

B. B. C. I. Rly. authorities acknowledged the notice to N. W. Rly. as a notice of claim of the plaintiff as against them and on that basis they conducted themselves subsequently and repudiated the plainiff's claim relying on risk note. In our view the facts in the present case are entirely different.

7. In conclusion, therefore, the plaintiff's claim as against the E. I. Rly. administration which is the basis of the present Suit as against them was never before brought to the notice of the said administration in any form as contemplated under Section 77 of the Act. The suit, therefore, must fail on the above consideration only.

8. Even on the merits we feel inclined to confirm the finding of the trial Court. In the face of the Risk Notes A and B., Mr. Das could pitch his case to the extent that the liability can be levelled against a railway administration only if misconduct is proved. The alleged misconduct is the delay of ten days at Patna city station. The only question is whether the explanation of the railway administration that the delay was only on account of communal riot spreading over the Province of Bihar is to be accepted or not.

There is the direct positive, evidence of D. W. 1 a railway employee attached to the Patna City station. He wonted as Asst. Trains clerk. His evidence is that the goods in question were despatched from Patna City Station on 10-11-46. He says that on account of communal disturbances in Bihar no goods train ran from Patna City station between 29-10-46 and 10-11-46.

He further says that the total staff in Patna City station consists of about 100 hands. AH of them were working between the period when there were communal disturbances, but the station was being guarded by Military. His evidence is substantially corroborated by reference to Exs. E and E 1, the outward hand books of the Patna City station. It appears from the entries in the outward hand books that only 2 or 3 trains left Patna City station during that period. Out of the 3 trains two did not carry goods.

The learned trial Court has fully discussed the evidence on the point and has accepted the defence version of communal riot in Bihar during that periodwhich explains the delay. We are in agreement with the view taken by the trial Court. In the face of these two findings which are more than, sufficient for disposing of the plaintiff's suit, we need not examine the plea of limitation.

9. In conclusion, therefore, the appeal fails and is dismissed with costs.

Panigrahi, C.J.

10. I agree.


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