D. Falshaw, J.
1. This is an appeal by the Union of India against part of a decree which has been passed in favour of the respondent the Delhi Registered Slock Holders (Iron and Steel) Association Limited.
2. The suit was instituted in June, 1949 against the Government through the General Managers of the Bengal Nagpur Railway and East Indian Railway and the Chief Administrative Officer, East Punjab Railway, claiming Rs. 11,995/8/- on the allegation that a consignment consisting of 218 bundles of galvanised corrugated iron sheets had been despatched by rail by the Tata Iron and Steel Company Limited from Tata Nagar to the plaintiff Association at Delhi, and that no portion of the consignment had been delivered. The suit was instituted after consolidated notices dated the 15th of January, 1949 had been served on the appropriate officers of the three Railways concerned and the Secretary to the Ministry of Transport, Government of India, in which the full value of the consignment together with incidental expenses and interest was claimed and had failed to elicit any satisfaction.
3. After the suit had been dismissed in default and restored a written statement was filed on 30th of March, 1950 on behalf of the East Punjab Railway in which it was stated that the consignment had remained untraced because the wagon arrived without labels, but the contents of the wagon had been unloaded on the 6th of July, 1948 at Shakur Basti, where they were now available for delivery. Under orders of the Court delivery was taken and it was found that 92 bundles of the sheets were missing altogether and that the remaining 126 bundles were in a damaged and deteriorated condition.
However, the plaintiff Association took delivery of the available goods and then filed an amended plaint in which the full value of the. 92 missing bundles was claimed along with damages for deterioration with regard to the bundles of which delivery had been taken and other incidental items, the total claim now being for Rs. 9,460/8/--. The suit was decreed to the extent of Rs. 8,098/12/6, representing Rs. 4,369/14/- as the value of the missing goods and Rs. 3,730/12/6 as damages for the deterioration in condition of the goods of which delivery was taken. The incidental items including Sales Tax and Interest were disallowed.
4. The present appeal has been filed only in respect of the damages allowed on account of the deterioration in condition of the goods of which delivery was taken.
5. The only issues framed by the lower Court were:
(1) Was a notice of claim preferred? If not, with what effect?
(2) Was a notice of suit served?
(3) To what amount of damages, if any, are the plaintiffs entitled?
6. As regards the second issue it was conceded in the lower Court that consolidated notices served on the management of the various Railways and on the Ministry of Transport dated the 15th of January, 1949 were in order as notices under Section 80, C.P.C. As regards the first issue the lower Court, while finding that these notices, if they were to be regarded as notices under Section 77 of the Railways Act, were not served in time, held that since the claim was one for non-delivery no notice under Section 77 was necessary, a view which has since been confirmed by a Full Bench of this Court in Babu Lal v. The Dominion of India, 54 Pun LR 398: (AIR 1953 Punj 184) (A).
7. It is, however, contended on behalf of the appellant that while no notice under Section 77 may have been necessary with regard to the goods which were not delivered in this case, the decree regarding which is not challenged in the appeal, the lower Court could not pass a decree for damages for deterioration as there had been no notice under Section 77 which reads :
'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 the delivery of the animals or goods for carriage by railway.'
It is contended that since these goods were despatched on the 17th of April, 1948 the plaintiff' could not be granted a decree for damages for deterioration of the goods of which he ultimately took delivery unless he had preferred a claim for compensation to the Railway administration from whom a compensation was to be claimed before the 17th of October, 1948. It is pointed out that in the decision of the Full Bench the view expressed that in a case of non-delivery no notice under Section 77 was necessary was qualified to the extent that it was held that in such a suit it was open to the Railway Administration to plead and prove that there had been loss or destruction of the goods and if loss or destruction was proved and no notice was given under Section 77, the suit would fail, for this would be a case of loss or destruction and not merely of non-delivery.
It was contended that if a consignee who has not received his goods and brings a suit for damages based on non-delivery can be non-suited in a case where the defendant is able to plead and prove that the non-delivery of the goods sued was due to loss or destruction simply because he had not submitted a claim as required by Section 77 within six months of the consignment of the goods, the same principle must apply with even greater force in a case where the whole or part of the consignment of goods is actually delivered, even after the institution of the suit, and the claim in whole or in part becomes one for damages for deterioration of the goods.
8. The plaintiff might have had no difficulty at all on this part of the case if the allegation made in para 4 both of the original and the amended plaint was correct. It was alleged therein that the plaintiff had preferred a claim for compensation to the Chief Administrative Officer, East Punjab Railway who took notice of the claim and forwarded the claim on behalf of the plaintiffs to the Chief Commercial Manager, East Indian Railway and the General Manager, East Indian Railway to receive notice and settle claim for compensation made against that Railway. It was further stated that copy of the plaintiffs' letter to the East Punjab Railway and the Chief Commercial Manager's East Indian Railway dated the 21st of September, 1948 were annexed to the plaint.
Unfortunately, however, no trace of any such documents exists on the file. Although it is difficult to believe that such a statement could be made in the plaint unless the documents in question were actually attached with it, even Mr. Gauri Dayal Advocate who was one of the counsel representing the respondent before us and who had been appearing for the plaintiffs at quite an early stage in the lower Court, could not remember having seen these documents, and since an issue was raised regarding the serving of a notice under Section 77 it seems hardly likely that the documents should not have been exhibited and placed on record if they had been present at the appropriate time.
9. It seems, however, that to some extent the existence of these documents is irrelevant since it is quite clear that even if any claim was put forward by the plaintiff Association in September, 1948, within six months of the date of the consignment of the goods, it must have been a claim similar to that put forward in the notice served in January, 1949, and to the claim preferred in the original plaint, namely a claim for damages for the value of the whole consignment and incidental expenses on the ground of non-delivery. It would, indeed be utterly impossible for any claim to be put forward regarding the deterioration of goods unless and until the goods had been delivered and their condition become known to the claimant and nobody could possibly put forward a claim for damages on ac-count of deterioration regarding goods of which the whereabouts, and therefore the condition, were still altogether unknown.
10. As far can be ascertained from the evidence on record in this case, the first information which the plaintiff received that any of the railway administrations concerned in the handling of this consignment had any knowledge of what had happened to it, or had any part of the consignment in its possession, was when the written statement was filed on behalf of the East Punjab Railway on 30-3-1950, nine months after the suit was instituted, and it was only after that, when delivery was taken of the remains of the consignment under orders of the court, that the plaintiff became aware of the deterioration of the goods, which it is not in dispute had been lying in the open air and, being galvanized corrugated iron sheets had to some extext lost their galvanizing and become rusty.
This fact was even admitted by two witnesses produced on behalf of the defendant in spite of their efforts to minimize the extent of the deterioration. In these circumstances, apart from the legal aspect of the matter it seems to me deplorable that the railway authorities should now take up the plea that no claim for compensation in respect of the deterioration could be entertained because a claim in this respect had not been preferred within six months of the date of the despatch of the goods. Yet it seems to me that on a strict perusal of the provisions of Section 77 no consignee could be entitled to compensation for deterioration of goods unless he had within six months of the date of the despatch of the goods sent to the appropriate railway authorities a claim for compensation for deterioration.
In other words, he could not be granted damages for deterioration if he had merely filed a claim within time for loss or destruction. This appears to me an absurd result in a case in which the consignee only becomes aware of the existence of any goods in the hands of the railway authorities after he has instituted a suit for damages for non-delivery, and is only able to take delivery of the remaining goods two years after the despatch and then alone is in a position to ascertain whether and to what extent the goods have deteriorated.
11. I do not think that such an absurd result could have ever been intended and indeed it could obviously lead to dubious practices on the part of the railway authorities, who could avoid any claim whatever for deterioration of goods by simply refraining from revealing their existence to the consigner until more than six months had elapsed from the date of despatch.
12. In spite of the fact that it had been conceded by the defendants in the lower court that the notices which were sent in January, 1949, were valid notices under Section 80 C. P. C. the learned Counsel for the appellant even attempted to attack this finding before us, but it was pointed out to him that this argument was not open to him since the appellant had conceded the justice and legality of the decree for Rs. 4,369/14/- with regard to the missing goods against which no appeal was filed and therefore the legality of the whole notice under Section 80 C. P. C. was conceded. The notice was a single notice containing the whole of the plain- tiff's claim and obviously it could not be held to be valid regarding part of the claim and not valid regarding the rest of the claim.
It seems to me that the same position must I be adopted regarding the necessity for a notice under Section 77. Up to the moment When the suit was instituted it was clearly a suit based on non-delivery of goods in which case no notice under Section 77 was necessary, and in my opinion the subsequent revelation by the East Punjab Railway that part of the consignment was still available cannot be allowed to make any difference. I am therefore of the opinion that the plaintiff could not now be denied any damages which were due to him for the portion of those goods of which delivery was taken in April 1950.
13. As regards the quantum of damages the controlled price at which the plaintiff Association could have sold the galvanized corrugated iron sheets if they had been received in a perfect condition, was Rs. 430/-/- per ton, as shown in the Government of India Iron and Steel Control Price Circular Exhibit P. 4 at item No. 10. The damages have been assessed by the lower court on the basis of the figure given at item No. 50 in the table of controlled prices Exhibit P. 1 which is headed 'Defective, non-standard; rejects, cuttings and scrap.' The second column in this table is one applicable to the Plaintiff Association and the relevant portion of item No. 50 reads 'Sheets, Galvamised-used-damaged but re-utilisable, corrugated or plain mixed or unmixed' and the figure in column No. 2 is Rs. 135/- per ton.
The amount involved is about 121/2 tons and the difference between the two rates is Rs. 245/-per ton. It is, however, quite clear that item No. 50, in spite of the assertion of the plaintiffs witnesses, is not applicable in the present case, since it clearly relates to used or in other words second-hand corrugated iron sheets. An attempt was made to argue that 'used' and 'damaged' in the wording of item No. 50 were alternative but it is in fact quite clear that, the word 'damaged' is not to be read by itself but as part of the phrase 'damaged but re-utilisable.' Re-utilisable' is a simple word meaning capable of being used again, and clearly implies previous use.
In my opinion the more appropriate item in this table is No. 48 reading 'sheets, Galvanised Corrugated, Rejected, defective and spotted,' the price in column No. 2 being Rs. 315/-per ton. This means a difference in price between new goods in perfect condition and defective ones similar to the deteriorated sheets in the present case of Rs. 115/- per ton. I am therefore of the opinion that the proper amount of damages in the present case amounts to Rs. 1458/- which added to Rs. 4369/14/- allowed in respect of the missing goods comes to Rs. 5827/14/-. I would accordingly accept the appeal with proportionate costs to the extent of reducing the decretal amount to Rs. 5827/14/-with proportionate costs to the plaintiff in the lower court.
Mehar Singh, J.
14. I agree.