1. This is a second appeal by the defendant against the judgment and decree of the Additional District Judge, Sangrur, 19th Mar. 1975.
2. Briefly, the facts are that 220 bags of Superphosphate (fertilizer) purchased by the plaintiff were booked at Ambar Nath Railway Station on 15th July, 1969, for delivery at Dhuri. The bags were lost during the transit. The plaintiff instituted a suit for recovery of Rupees 9,950/- on account of price of the goods and interest thereon at the rate of 6 per cent per annum from the date of the booking of the goods up to the date of the suit.
3. The suit was contested by the defendant who inter alia pleaded that notice under S. 78-B of the Railways Act (hereinafter called the Act), was not duly served upon it and that the same was not given by an authorised person. Some other pleas were also taken but they do not survive in second appeal.
4. The trial Court held that the proper notice under S. 78-B of the Act was given by a duly authorised person on behalf of the plaintiff and that the plaintiff was entitled to the price of the goods amounting to Rs. 8,360/- and not the interest. Consequently, it partly decreed the suit in favour of the plaintiff. On appeal by the Union of India, the Additional District Judge, Sangrur, affirmed the judgment and decree of the trial Court. it has come up in second appeal to this Court.
5. The only question that arises for determination is whether a notice under S. 78-B was served upon the defendant-appellant and, if so, whether it was served on behalf of the plaintiff. The learned counsel for the appellant has urged that the notice dt. 26th Dec. 1969, Ext. P. 3, is alleged to have been despatched by post after obtaining certificate of posting by the Manager of the plaintiff. He urges that unless properly addressed notice was sent under registered cover, no presumption of service could arise. He further argues that the notice did not even contain correct address of the addressee. According to him, the notice was given by the Manager of the plaintiffs branch at Dhuri and not by the plaintiff and, therefore, it was not served by the proper person. In support of his contention, he has referred to Ss. 78-B, 140 and 142 of the Act.
I have duly considered the arguments of the learned counsel. First I shall deal with the argument whether the alleged notice under S. 78-B was served upon the appellant. The notice dt. 26th/27th Dec. 1969, Ext. P. 3. is alleged to have been sent by the Manager of Dhuri branch of the plaintiff to the Chief Commercial Superintendent (Claim), Northern Railways, New Delhi. The address given on the certificate of posting is as follows.--
'The Chief Commercial Superintendent (Claim), Northern Railways, New Delhi.'
The address of the Chief Commercial Superintendent (Claim) as given in the notice under S. 80 of the Civil P. C., Ext. P. 10/A, is as follows:--
'Chief Commercial Superintendent (Claim), N. Rly. IRCA Building, New Delhi.'
Thus, there is discrepancy in the addresses of the addressee in the two notices. The learned counsel for the appellant admits that the address given on the notice under S. 80, Civil P. C., is correct. He, however, says that the ad-dress on the notice under S. 78-B of the Act is incomplete.
6. At this stage. it will be appropriate to refer to Ss. 78-B, 140 and 142 of the Act. which read as follows:-
'78-B. Notification of claims to refunds of overcharges and to compensation for losses.--A person shall not be entitled to a refund. of an over-charge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery 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
(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or
(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred,
within six months from the date of the delivery of the animals or goods for carriage by railway.
Provided that any information demanded or inquiry made in writing from, or any complaint made in writing from or any complaint made in writing to, any of the railway administrations mentioned above by or on behalf of the person within the said period of six months regarding, the non-delivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation.
140. Service of notices on railway administrations.--Any notice or other document required, or authorised by this Act to be served on a railway administration may be served, in the case of a railway administered by the Government on the Manager or the Chief Commercial Superintendent and, in the case of a railway administered by a railway company--
(a) by delivering the notice or other document to the Manager or the Chief Commercial Superintendent or Agent, or
(b) by leaving it at his office; or
(c) by forwarding it by post in a pre-paid letter addressed to the Manager or the Chief Commercial Superintendent or Agent at his office and registered under the Indian Post Office Act..1898.
142. Presumption where notice is served by Post.--Where a notice or other document is served by post, it shall be deemed to have been served at the time when the letter containing it would he delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the letter containing the notice or other document was properly addressed and registered.
Section 140 prescribes the mode of service of notices and other documents on the Railway administrations Cls. (a) and (b) relate to the service of a notice or other document through a messenger of the sender of the notice or document and Clause (c) through the agency of postal department. Clause (c) has two ingredients. Firstly, the notice/document should he enclosed in a prepaid envelope and secondly, it should be registered. Section 142 deals with the presumption in case the notice /document is sent by post. It inter alia provides that a notice/document would be deemed to be served if it was sent by post under registered cover and addressed properly.
7. The learned counsel for the respondent pointed out that Ss. 140 and 142 of the Act applied in the case of service of notice /document and not that of preference of a claim. He submits that under S. 78-B, the notice is not required to be served but a claim preferred and, therefore, Ss. 140 and 142 have no applicability to the claims under the said sections,
8. It Is true that in S. 78-R, the words 'notice' and 'served' have not been used but the words 'claim' and 'preferred' have been used. However, Sections 140 and 142 apply in case of preference of a claim under S. 78-B as well. It is not necessary to go into the matter In detail as It has been examined by two Division Benches in Union of India v. Lakshmi Textiles, AIR 1968 Ker 23, and Union of India v. Amin Chand Pyare Lal, 1974 Cur LJ l. (AIR 1974 Punj 190). It was held in the former case that a claim under S. 78-B, when forwarded by post, has to he in accordance with Clause (c) of S. 140 and when so forwarded, the presumption under S. 142 is attracted. The contention that S. 78-B uses the word 'preferred' whereas Ss. 140 to 142 use the term 'served' and, therefore, S. 142 has no application to a claim under S. 78-B is not tenable. There is no provision in the Act which expressly and in terms uses the term 'serve' or 'service by post' on or by the railway administration except Ss. 140 to 142. So. 140 and 141 are intended to govern the manner of service of claims or notices under So. 78-B and 56 (1), respectively. To hold otherwise would be to render both Ss. 140 and 141 otiose. It was further observed that according to S. 27 of the General Clauses Act, the term 'service' has the same meaning as the terms 'give', 'send' etc.: if so, the term 'Prefer' cannot mean anything different. It may be relevant to point out that S.141 of the Act relates to service of notices by railway administrations and the provision therein regarding service by post is similar as in the case of service of notices on railway administrations in S.140. This case was followed in Min. Amin Chand Pyare Lal's case (AIR 1974 Punj 190) (supra) by a Division Bench of this Court. The learned Bench held that there was no merit in the contention raised on behalf of the respondent that Ss. 140 and 142 did not apply to the preferring of a claim under S. 77. No other provision had been pointed out in the Act which provided a mode in which the claim under S. 77 had to be preferred. it was further observed that even if the claim under S. 77 be not considered as a notice, it would certainly fall within the expression 'document' used in Ss. 140 and 142 of the Act. It may he mentioned that earlier notices were preferred under S. 77 of the Act but subsequently, an amendment was made and S. 78-13 was substituted in lieu of S. 77. Though there is some change in the language of the substituted section but for the purposes of determining the issue in hand. there is no material change in it. in both the sections the words 'claim' and 'preferred' have been used. I am in respectful agreement with the above observations. In the present case, as already said, the notice was forwarded by post but not under registered cover. The presumption of service would have arisen if it had been for-warded under a registered cover and not otherwise. It may also be highlighted that it did not even bear the full address of the Chief Commercial Superintendent (Claim).
9. Faced with that situation, the learned counsel for the respondent drew my attention to the postal certificate, Ext. P-5, and the relevant entry, Ext. P-6, in the despatch register. He submits that from the two documents it is clearly established that the notice was despatched to the Chief Commercial Superintendent (Claim) and it was for him to prove that he did not receive it.
10. 1 am not impressed, with the submission of the learned counsel. I have carefully examined the despatch register and find that the despatch numbers therein are not properly given. The relevant entry is numbered as 2130 and exists at page 58. On that page-alone, despatch numbers 2112,.2124 and 2130 have been given twice. It appears that in order to explain the discrepancy, against the latter despatch number 2130. the letter 'A' has been added later. It is evident from the fact that different pen and ink have been used for that purpose. The serial numbers against the entries are given so that it may not be possible to Interpolate new entries. If the serial numbers are not correctly given In the despatch register, what reliance can be placed on it.
11. The learned counsel for the respondent sought to impress that the despatch clerk was not a highly educated person and, therefore, much importance should not be given to this circumstances I am not convinced with this argument of the learned counsel. The whole purpose of maintaining the despatch register is frustrated if the entries therein are not correctly numbered. Therefore, no reliance can be placed on the despatch register. As already discussed above, the letter does not h ear the full address of the Chief Commercial Superintendent (Claim) as well. Delhi is a big city and unless complete address of a person is given, it cannot be said that the mall has been delivered to him. In this situation, the postal certificate also loses significance. It is also not understandable as to why the Manager of the plaintiff chose to deviate from the mode of service of a notice prescribed in the Act and forwarded it under postal certificate when the notice under S. 78-B is mandatory and in case of its non-service, suit is not maintainable.
12. After taking into consideration all the aforesaid circumstances, I am of the opinion that the respondent has failed to prove service of. notice under S. 78-B of the Act. It is not disputed that if no notice under the said section is served, the suit is liable to be dismissed on this ground alone.
13. 1 shall now deal with the second objection, namely, whether the notice was given on behalf of the plaintiff. The learned counsel for the appellant has urged that the notice was not given on behalf of the plaintiff, as the Manager, Dhuri Branch, did not say so therein. He argues that the alleged notice is, therefore, invalid and should be ignored on this ground also. I do not find any substance in the submission. In the notice, at the top 'the Dhuri Co-op. Marketing cum-Processing, Society Ltd., Dhuri (Pb)' is mentioned. In its body, a reference has been made to the numbers of the wagons in which the consignment was despatched, the number of bags and the numbers of R. Rs., besides the places of despatch and destination. The said letter bears the signature of Gurdev Singh and under the signature, he has given his designation as 'Manager, the Dhuri Co-operative Marketing-cum-Pressing Society Ltd., Dhuri'. Under S. 78-B of the Act, a notice can be sent by the Plaintiff himself or by someone on his behalf. It is evident from the above) facts that the notice was sent by Gurdev Singh on behalf of the plaintiff. Merely because he did not say that he was serving the notice on behalf of the plaintiff, does not make any difference. I consequently, repel the submission of the learned counsel.
14. For the aforesaid reasons, I accept the appeal, set aside the judgments and decrees of the Courts below and dismiss the suit of the plaintiff. In the circumstances of the case, I leave the parties to bear their own costs.
15. Appeal allowed.