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Kanyaka Parameswari Cloth Stores Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 128 of 1958
Judge
Reported inAIR1960Ori154
ActsRailways Act, 1890 - Sections 77 and 80
AppellantKanyaka Parameswari Cloth Stores
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateH. Sen, Adv.
Respondent AdvocateB.K. Pal, Adv.
DispositionRevision dismissed
Cases ReferredM. Kanvaka Parameswari Cloth Stores v. Union of India
Excerpt:
.....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]. - hence, any railway administration against whom relief is sought must be served with notice under section 77 of the railways act and failure to do so will disentitle the aggrieved party to maintain a suit for any of the reliefs mentioned in that section......the judgment.3. the main question in this civil revision is whether in case of through-booking of goods, notice to one railway, namely south eastern railway in the present case, was sufficient notice to the other railways, in order that they may be made liable for the alleged loss or damage. mr. h. sen, learned counsel for the plaintiff-petitioner, contended that notice to one railway was sufficient notice to the other railways also; and in support of his contention, he relied on a recent decision of the madras high court in p. r. narayana swami iyer v. union of india, (1959) 2 mad lj 479 : (air 1960 mad 58), where it was held that in cases of through traffic where the goods consigned are carried over several railways, one notice to the general manager of any one of the railways.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff is the petitioner in this Civil Revision against an order of the learned Small Cause Court Judge, Berhampur in S.C.C. Suit No. 257 of 1956 whereby he dismissed the plaintiffs' suit.

2. The relevant facts, shortly stated, are these: In September 1955, the plaintiff, under an Invoice No. 170 dated September 22, 1955 consigned from Ahmedabad on Western Railway one bale of cotton piece goods for delivery to it at the Chhatrapur Railway Station on the South Eastern Railway. The goods arrived on October 15, 1955 and were left open on the platform at the Chliatrapur Railway Station instead of in a protected place with the consequence that the goods are alleged to have been drenched and damaged by rain water. The goods having not been taken delivery of within the reasonable time, demurrage Was charged. On December 28, 1955 an Assessment of Damage Certificate was issued by the Station Master Chhatrapur on the value of the bale. On January 27, 1956 a claim notice was served under Section 77 of the Railways Act. On August 26, 1956 notice under Section 80 Civil Procedure Code was served. Then, on December 20, 1956 the plaintiff filed a suit against the defendants for damages alleged to have been caused to the goods.

In the written statement, the defence taken was that no notice under Section 80, Civil Procedure Code was served on the defendant -- Union of India and that the notice under Section 77 of the Railways Act was not valid and binding on the defendants. The further defence taken was that there was no carelessness on the part of the Railways; that no damage was caused to the goods, while in the custody of the defendants; that booking conditions were not complied with; and also pleaded that the suit was barred by limitation. The trial Court dismissed the suit against the defendant -- Union of India and ex parte against the defendants Nos. 2 to 4, namely, the Southern Railway, Central Railway and Western Railway for the reasons stated in the judgment.

3. The main question in this Civil Revision is whether in case of through-booking of goods, notice to one Railway, namely South Eastern Railway in the present case, was sufficient notice to the other Railways, in order that they may be made liable for the alleged loss or damage. Mr. H. Sen, learned Counsel for the plaintiff-petitioner, contended that notice to one Railway was sufficient notice to the other Railways also; and in support of his contention, he relied on a recent decision of the Madras High Court in P. R. Narayana Swami Iyer v. Union of India, (1959) 2 Mad LJ 479 : (AIR 1960 Mad 58), where it was held that in cases of through traffic where the goods consigned are carried over several railways, one notice to the General Manager of any one of the Railways concerned in the route over which the through traffic passed would be sufficient compliance with Section 77 of the Railways Act that the Section also does not lay down that such notice should be given to any particular railway administration such as the contracting railway or destination railway, etc.

The learned Judges of the Madras High Court also expressed the view that Section 77 of the Railways Act does not require that notice of claim for loss or damages should be given to every one of the General Managers of the different railways over which a through traffic occurs; that the section contemplates only one notice and such a notice should be given to the General Manager of any one railway. As regards notice under Section 80. Civil Procedure Code, the Madras High Court held that the question of notice under Section 80 of Civil Procedure Code has no bearing on the liability of the Central Government in relation to the Railways run by it and it cannot govern the scope and application of Section 77 of the Railways Act; that the amendment of Section 80 Civil Procedure Code in 1908 inserting a special provision as to notice in case of railways cannot have any effect on the question of liability of Government, who now owns several railways after amalgamation.

As against this view, a Division Bench of this High Court in Fagumani Khuntia v. Dominion of India, AIR 1956 Orissa 29 held that each railway administration is a separate entity and a different legal person capable of suing and being sued independently; that notice against the one Railway administration of the claim of the plaintiff is not, therefore, sufficient compliance with the provisions of Section 77 as to constitute notice against the other Railway administration. Thus, where the plaintiff, in that particular case, who had consigned goods from the Station P on the East Indian Railway to be delivered to the Station S on B. N. Railway (as it then was) sent a notice of claim for damages to the Claim Officer, B. N. Railway and a copy to the General Manager, E. I. Railway, it was held that the claim as against E. I. Railway was never brought to the notice of the said administration in any form as contemplated under Section 77 and the Section was not complied with as against the E. I. Railway. Indeed, there are two lines of cases on the point.

The broad distinction in principle on these two lines of reasoning is based on the aspect that according to the one view, the railways are different legal entities although they are all under the Central Government, while according to the other view, the railways taken together forming a composite unit as such, is treated as one single administration, namely, the railway administration under the Central Government, Thus, according to the view which considers the railways as different legal entities, notice to one of the railways is not sufficient notice for purposes of making liable the other railways. According to the contrary view, namely that all the railways taken together, in a bunch,--constitute one legal entity, notice to one is sufficient notice to make all the railways concerned liable.

4. Mr. B.K. Pal, learned Counsel appearing for the defendant-opposite parties contended that the Government is one, while the railways spread all over the country as different entities for convenience of administration. Indeed, Government ownership of all the railways in the country does not take away the legal entity of each of the railways in the Country. It seems natural, that for convenience of administration, Government has been sub-divided into different units, namely the Union of India into separate States, each as an autonomous body. Again, in the State itself, there are different departments which each by itself forms one legal entity. These aspects appear to have been somehow overlooked by the Madras High Court in the decision cited above. That apart, there is one further point to be considered in this context. The principles of natural justice require that a party sought to be made liable must be given an opportunity to meet or explain the claim made against it. Supposing, a consignment of goods is sent from a Railway Station in the North Eastern Frontier Agency State in Assam to be sent to a railway station on Southern railway in Madras, in case of such through booking from one end of the country to another, such cross-country consignment naturally involves passing through several railways which each is responsible for carriage of the goods while passing through its administration.

In case of such through booking of goods from one end of the Country to the other which has to pass through several railways, it is only natural that each of the railways involved should be made answerable for the fate of the goods concerned while on its line. Each railway is responsible for the carriage while the goods come within the ambit of its administration. When in such a case, there is a claim arising from either mis-delivery or non-delivery or loss of the goads concerned, each of these railways will have to be given opportunity so as to facilitate enquiry about the fate of the goods and also to meet the allegations made in respect thereof. Notice, therefore, has to be given to each of the parties concerned and it is not sufficient that notice to one of such units is sufficient to make the other units liable for it.

5. Since 1944 the Government came to own all the principal railways. For obvious reasons, it was the intention of the Legislature to maintain the entity of each of the railways separate, for convenience of administration. Section 80 of the Civil Procedure Code, makes special provision for notice in case of a suit against the Central Government where it relates to a railway. For convenience of reference, the relevant portion of Section 80, Civil Procedure Code is set out below:

'80.-- No suit shall be instituted against the Government or against the public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of-- (a) In the case of a suit against the Central Government except where it relates to a railway, a Secretary to that Government;

(b) in case of a suit against the Central Government where it relates to a railway, the General Manager of that railway: X X X X X'

It is clear from the above, that notice is expressly provided for to be served on the General Manager of the particular railway concerned. The last words 'that railway' in the Sub-clause (b) quoted above make it clear that notice is lo be served on the General Manager of the Railway to which a particular, claim against the Central Government relates. The word 'that' in Sub-clause (b) above is express enough to make it clear that the intention of the Legislature was to fix with notice, the General Manager of that particular railway which is concerned. There are different General Managers for different railways in the country, notice on one of the General Managers is thus not sufficient notice to all. The condition precedent to a suit in such a case is notice under Section 80, Civil Procedure Code on the General Manager of that particular railway. Similarly, Section 77 of the Railways Act providing for notification of claims to compensation for losses etc. requires the claim to such compensation etc. to be preferred in writing by the claimant or on his behalf to the railway administration.

The very retention of the words 'railway administration' under Section 77 shows that notice must be given to the railway administration concerning and not on the Central Government. Section 80 of the Railways Act which relates to suits for compensation for injury to through booked traffic makes the entire position clear showing that separate entity of the different railway administrations has been maintained. The Section further says that where goods have been, booked through over the railways of two or more railway administrations, a suit for such compensation may be brought either against the railway administration to which the goods are delivered by the consignor or against the railway administration on whose railway the alleged loss, injury etc. occurred. This Section gives a complete insight into the intention and purpose of the. Legislature to maintain the separate entity of each railway administration.

6. The recent Madras view in (1959) 2 Mad. LJ 479 : (AIR 1960 Mad 58) cited above is not a new view expressed by the Madras High Court. Indeed, there was a conflict of views on this point among the different High Courts in India. In fact, there were two views in the Madras High Court itself which were considered in the latest decision cited above. In fact, the two appeals were referred, to a Division Bench in view of the conflict between the decisions in Kishanlal Rupchand and Co. v. Indian Dominion, (1955) 1 Mad LJ 79: (S) AIR 1955 Mad 151 and Governor General in Council v. Ajith Bhai Jayantilal and Co. (1952) 2 Mad. LJ 24 : (AIR 1952 Mad 795). This High Court also previously considered the merits of both the views. It is settled that where the goods are consigned to a railway for delivery at a railway station on another Railway and the suit for damages for short delivery is brought against the Governor General or the Union of India representing the latter railway where, however, the loss does not take place, the latter cannot be made liable for the loss on the theory of agency or partnership -- Section 77 read with Section 80 of the Railways Act makes it clear as aforesaid that Section 77 treats each of the railway administrations as separate entity with separate existence and personality though they have now been owned by the Central Government.

The purpose underlying Section 77 is that the parties concerned should be apprised of the loss or damage promptly in order to enable them to investigate into the matter quickly and get some information as regards the loss or damage. This interpretation of Section 77 of the Railways Act is reinforced by the terms of Section 80, of the Civil Procedure Code as also Section 140 of the Railways Act. Hence, any railway administration against whom relief is sought must be served with notice under Section 77 of the Railways Act and failure to do so will disentitle the aggrieved party to maintain a suit for any of the reliefs mentioned in that Section. These indeed are the views expressed by this High Court as also some of the other High Courts, AIR 1956 Orissa 29, Governor General in Council v. Sukdeo Ram, AIR 1949 Pat. 329, Kannaiyalal Ram Narain and Co., v. The Union of India, AIR 1959 Pat 335, Kondapalli Virraju v. Union of India, AIR 1959 Andh. Pra. 594 and an unreported Decision of this Court in M. Kanvaka Parameswari Cloth Stores v. Union of India, in Civil Revn. No. 127 of 1958, D/- 23-9-1959 reported in (AIR 1960 Orissa 103).

7. Mr. H. Sen, learned Counsel for the plaintiff-petitioner in this context drew my attention to Section 3 (6) of the Railways Act defining 'railway administration'' or 'administration', in the case of a railway administered by the Government to mean the Manager of the Railway and includes the Government and, in the case of a railway administered by a railway company means the railway company. One interpretation is that Section 80 o the Civil Procedure Code was amended in 1948 with a view to make it consistent with Section 3(6) of the Railways Act. This view, however, overlooks that the definition of 'railway administration'' as given in the railways Act is in the context of railways capable of being administered both by the Government as also by companies. The effect of this definition is that the manager is a legal entity to the same extent as the railway company. This, however, does not take away the legal effect of Section 80 of the Civil Procedure Code and Sections 77 and 80 of the Railways Act expressly providing for notice to be served on the General Manager of the particular railway administration concerned. Thus, the contention, on behalf of the plaintiff-petitioner do not appear to me to be tenable in law.

8. With regard to other points, they are covered by a decision of this Court in Civil Revn. No. 127 of 1958, D/-23-9-1959 reported in (AIR 1960 Orissa 103). On all other points, following the conclusion in the above-mentioned decision I find against the plaintiff-petitioner.

9. In this view of the matter, I upheld thedecision of the learned Small Cause Court Judge.This revision is, accordingly, dismissed with costs.Hearing fee Rs. 32/-.


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