1. These two appeals arise out of the judgment of the learned Second additional Subordinate Judge, Cuttack, decreeing with costs a suit brought by the respondent for recovery of damages from the Railway administration for non-delivery of certain goods that were booked from Surareddipalayam on the Southern Railway on 10-12-52. The defence of the Railway Administration was that the consignment was looted by a riotous mob at Bezwada Railway Station on 16-12-52 when, due to the death, by fasting, of the well known Andhra Leader Poti Sriramulu in Madras, in connection with the formation of a Andhra Province, there was an agitation and commotion in several parts of Andhra territory including Bezwada Railway Station. The Railway administration examined some of the members of its staff at Bezwada Railway Station, to show that the loss of the consignment took place at Bezwada Railway Station on 16-12-52. Thus D. W. 1 stated that the consignment in question was kept in wagon No. NWGG. 46452, that it arrived at Bezwada Tranship shed intact on 14-12-52 and that the consignment was re-loaded in another wagon BBCG. 31100 on 15-12-52 and properly sealed for onward despatch. D, W. 2 stated that he checked this wagon on 24-12-52 and found the consignment missing altogether. The Railway administration did not lead further evidence to show that this wagon was looted by the mob on 16-12-52.
2. While the trial was going on in the lower court, the defendants (appellants) on 4-4-59 wanted further time to bring their witnesses but the court refused the prayer as the suit was already old, and directed the defendants to produce their witnesses on 8-4-59. But even on that day the defendants did not examine any other witness, and then the case was closed, with the evidence already on record, and the suit was disposed of on 15-4-59. Thereupon, the defendants assuming the said orders have been passed ex parte filed an application under Order 9 Rule 13 C. P. C. before the same Court on 8-5-59 for setting aside the order and for fresh hearing. But even that application was allowed to be dismissed for default on 7-8-59. Against this order of dismissal Misc. Appeal No. 2 of 1961 was filed.
3. There is absolutely no ground for setting aside the judgment of the lower court. The defendants were given ample opportunities to adduce all available evidence. The suit was instituted on 15-2-54. Some of the Railway witnesses were examined on commission at Bezwada and the suit was thentaken up for further hearing at Guttack in 1959. It should not have been difficult for the Railway administration to bring Railway witnesses to Cut-tack and complete their evidence. Even when their prayer for time was rejected on 4-4-59 the learned lower court adjourned the case to 8-4-59 and during that interval also no steps were taken to bring their witnesses. Again when the application under Order 9, Rule 13 C. P. C. was filed on 8-5-59 no further steps were taken to explain the circumstances under which the witnesses were not available on 8-4-59 in the suit. On the other -hand that application itself was allowed to be dismissed for default on 7-S-59. Thus the Railway Administration has been guilty of serious laches and it will not be proper to give them again another opportunity to produce evidence.
4. Thus, on the meagre evidence on record though it is established that the consignment was lost in Bezwada railway station sometime between 15-12-52 and 24-12-52 there is no evidence to show that it was removed by riotous mob which looted Bezwada Railway Station on 16-12-52. The defendant- railway administration cannot therefore escape liability on this ground.
5. The next point urged by Mr. Pal appearing for the Railway administration is that no notice under Section 77 of the Railway Act was served on the Southern Railway (where the goods were lost) within the period of six months as required by that Section. Section 80 of the Indian Railways Act as it stood prior to the amendment of 1961 (by Act 39 of 1961) required that where there was loss of goods, a suit for compensation may be file3 either against the Railway Administration where the consignment was delivered or against the Railway administration on whose railway the loss occurred. Under the aforesaid Section 77, where there is loss of goods during transit the claim must be made before the Railway administration within 6 months from the date of delivery of the goods. There was some controversy as to whether this section was applicable where there was complete non-delivery of the goods (as in the instant case) as distinct from loss of goods during transit
But the recent decision of the Supreme Court reported in Governor, General in Council v. Musaddi Lal, AIR 1961 SC 725 has set the matter at rest. There the Patna view in Jais Ram Ramrekha Das v. G. I. P. Rly. Co., AIR 1929 Pat 109 was overruled and it was held that even if there was complete non-delivery Section 77 of the old Act was applicable. As Surareddipalayam is admittedly in the Southern Railway and the loss of the consignment is admitted to have taken place at Bozwada railway station which is also on the Southern Railway, the notice under Section 77 of the Railways Act should have been given to that Railway and not to the Eastern Railway (now South Eastern Railway) where the station of destination, viz., Kapilas Road is situated.
6. Mr. Pal urged that the plaintiff failed toestablish affirmatively that notice under Section 77 'of theIndian Railways Act was served on the SouthernRailway within the stipulated period and that consequently the entire suit must fail on this groundalone.
7. To appreciate this argument it is necessary to refer to certain facts. In paragraph 4 of the plaint the plaintiff alleged that he gave registered notices under Section 77 of the Indian Railways Act, to the Railway administration, namely the Eastern Railway and the Southern Railway, and further stated that copies of the said notices, registration receipt and acknowledgment were filed along with the plaint. Both the Eastern Railway and the Southern Railway were impleaded as defendants, the Eastern Railway being defendant No. 1 and the Southern Railway being defendant No. 2--the Union of India representing both the Railway administrations. But the Eastern Railway alone entered appearance and contested the suit. The Southern Railway (defendant No. 2) did not contest and the order of the learned trial Court dated 12-3-1954 shows that defendant No. 2 was treated as ex parte. Defendant No. 1 also in his written statement did not expressly deny the allegation in paragraph 4 of the plaint that registered notices under Section 77 of the Indian Railways Act were sent to both the Railways. Defendant No. 1's contention in para. 2 of his written statement was that no valid notice under Section 77 of that Act was served. In other words it was the validity of the notice under Section 77 that was challenged and not the fact that such notice was issued by registered post by the plaintiff. Thus, when the facts averred in paragraph 4 of the plaint were not specifically denied by the contesting defendant No. 1 and when the. Southern Railway (defendant 2) allowed the suit to proceed ex parte it was not necessary for the plaintiff further to establish by evidence that notice under Section 77 of the Indian Railways Act was in fact issued to the Southern Railways. Hence the statement in paragraph 4 of the plaint must be taken to be uncontroverted. Some corroboration of this statement is found in Ext. 3 which is a copy of the notice under Section 77, issued to the Eastern Railway by the plaintiff on 26-5-53. At the bottom of this document it is written:
'Copy to C. C. S. Railway, Madras on 28-3-53 for favour of necessary action.'
This endorsement, coupled with the assertion in paragraph 4 of the plaint must lead to the necessary inference that due notice by registered post was also given to the Southern Railway (defendant No. 2). Under Section 142 of the Indian Railways Act, if it be proved that the letter containing the notice was properly addressed and registered there was a presumption that it was duly served on the addressee. Here apart from presumption, the absence of any specific denial by the two Railways concerned must lead to the inference that the notice under Section 77 was duly served by registered post and duly received. Hence, in my opinion, Mr. Pal is not correct in saying that the plaintiff has failed to prove that the notice was served on the Southern Railway.
8. Some reliance was placed on Dunichand Ram Saran Das v. Secy, of State, AIR 1931 Cat 585 where it was held that if notice of claim is given under Section 77 of the Indian Railways Act to one Railway administration while a copy of that notice is sent to the agent of another Railway Administration 'for information' and compensation is demanded from the latter, there is no Valid notice under Section 77.There the copy was sent to the Railway Administration 'for information' whereas here, as already pointed out Ext. 3 shows that the copy was sent to C. C. S. Southern Railway, Madras 'for favour ot necessary action'. The instant case is therefore distinguishable from the aforesaid Calcutta case. The words 'for favour of necessary action would ordinarily mean that a claim was made against the Southern Railway also. At that time the plaintiff could not obviously be certain as to where the loss of consignment actually took place. In fact under Section 74(d) of the Railways Act, it was the responsibility of the Railway to disclose to the plaintiff where the loss occurred. Hence the plaintiff took the precaution of sending the notice under Section 77 to the Eastern Railway with a copy to the Southern Railway also, for necessary action. If in fact, the notice was not received by the Southern Railway that Railway would have entered appearance and contested the suit and then the plaintiff would have proved the postal receipt of notice and also the acknowledgment receipt to show that the notice was served on the Southern Railway also. I must accordingly hold, in the circumstances of this case that the service of notice on both, the Railways has been duly proved.
9. For these reasons the judgment and decree of the lower court are upheld and Miscellaneous Appeal No. 2 of 1961 and First Appeal No. 2 of 1961 are both dismissed with costs. But the decree of the lower Court is slightly modified and it is further directed that the decree-holder (respondent) should get future interest at six per cent per annum, from the date of institution of the suit till the date of payment, on the total amount of claim as decreed by the lower Court
R.K. Das, J.
10. I agree.