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Union of India Vs. Kewal Parkash - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 447 of 1973
Judge
Reported inAIR1977Delhi146
ActsRailways Act, 1890 - Sections 76-E; Railways (Amendment) Act, 1961; Limitation Act, 1963 - Schedule - Article 10; Code of Civil Procedure (CPC), 1908 - Sections 86
AppellantUnion of India
RespondentKewal Parkash
Appellant Advocate Y.K. Sabharal, Adv
Respondent Advocate Satpal, Adv.
Cases ReferredUnion of India v. Amar Singh
Excerpt:
.....the plaintiff-respondents in a badly damaged condition wit1k heavy pilferage. of raisins is concerned, the suit of the plaintiff must fail as the plaintiff did not take delivery within one -month of the arrival of the goods. the suit should have failed on the short ground that it was not even alleged in the plaint that the loss arose on the railway of the railway administration. on this short ground alone, the suit of the plaintiff should have failed. 76-e has not been complied with and in this view of the matter even if the rules, aforesaid, are still binding, the case of the plaintiff-respondents must fail. 76-e of the railways act, 16. in view of my finding that the plaintiff failed to comply with the provisions of s. 76-e of the railways act, the suit must fail......india and pakistan. the relevant rr, 2. 11, 12 and 13 provided as under: ' (2) interchange of india-pakistan traffic shall be regulated by the following fundamental rules and rules subsidiary thereto which cannot be amended, added to, or departed from, without the written consent of the two governments ...... ...... ...... ...... (11) any claim for refund of over charges in the case of 'paid to pay' traffic 4hall lie against and be disposed of by the forwarding railway in respect of overcharges in the shares of the country in which the traffic originates and by the receiving railway in respect of over charges in the shares of receiving country. in the case of -all other traffic, claim shall lie against the country which made the collection. (12) incidence of claims for loss, damage,.....
Judgment:
ORDER

1. This is a petition for revision filed an behalf of the Union of India, under S. 25 of the Provincial Small Cause Courts Act against the judgment and decree dated March 28, 1993, passed by Judge, Small, Cause Court, Delhi The petition arises in the following circumstances:

2. Plaintiff-respondent, Kewal Parkash, proprietor of M/s. Kewal Parkash & Brothers, Dry Fruit Merchants & Commission Agents, filed a suit against the Union of India, owning and representing the Northern Railway, for the recovery of Rs. 994.20 on, account of damages for short delivery and goods delivered in damaged condition. It was stated in the plaint that a consignment comprising 250 cases of raisins was consigned with the Railway at Peshawar Cantt. Station for carriage 'by rail and delivery at Delhi station, under invoice No. 47, Railway Receipt No. 84871 dated 19-8-64, ex-Peshawar Cantt. to Delhi, The plaintiffs were the consignees of the railway receipt for the said goods. It was alleged that the goods were-consigned at railway risk rate. It was also Plead' ed that due to the- negligence and want of proper care on the part of, the R910' way Ad-ministration and/or its servants, seven cases out of the suit consignment were delivered to the plaintiff-respondents in a badly damaged condition wit1k heavy pilferage. The fact of damage and shortage was brought to, the notice and the station in charge be fore taking delivery and removal of Vile goods from the railway premises open delivery was granted by the Railway and 1,13 kgs of raisins were found short and 62 kg& of raisins were delivered on assessment of damages at 95 per cmt. It was further alleged that although the Railway administration was called upon to inform or disclose to the plaintiff-respondents as to how the consignment was dealt with in transit but the railway administration did not supply particulars there after. The compensation for short delivery was claimed at Rs. 67,8 and the cmY43ensation for damage was claimed at Rs. 316.20. It was also pleaded that notices under S. 76-B of the Indian R.-&ways; (Amendment) Act, Imi and under S. 80, C-P-Chad been given to the petitioner-defendant but to no avail.

2-A. The Union of India contested the suit on various grounds. The suit was claimed to be barred by time. The petitioner-defendant also denied the title of the plaintiff to the goods in question or their right to sue. The defendant also denied negligence or want of proper care on the part of the Railway administration or its servants. It was Pleaded that since the Pakistan seals on the wagon were found to be intact, the Railway administration could not be held liable. It was further pleaded that Pakistan Railways booked the consignment and the defendants informed the plaintiff respondents about the loss having taken place in Pakistan and asked them to seek relief from Pakistan Western Railway with whom the contract of carriage was entered into by the plaintiff-respondents. It was also stated that the Railway administration was not bound in law to disclose as to how the consignment was dealt with in transit. It was suggested that the plaintiff-respondents could seek relief from Pakistan Western Railway, where the loss -occurred because one sovereign State cannot be an agent of another sovereign State. The receipt of notices under S. 76-B of the Indian Railways (amendment) Act, LD61 and S. 80, C.P.C. was admitted. It was further submitted that no cause of action was disclosed in the plaint.

3. The learned Judge, Small Cause Court, posed the following two questions for decision:

(i) Has the plaintiff locus standi to sue?

(ii) Whether the plaintiff is entitled to any compensation about loss and damage as alleged? If so, to what amount?

4. On the first point for decision, the learned Judge, Small Cause Court, found that as the plaintiff was consignee of the goods in dispute and under the International law the goods vest in the consignee, the plaintiff had the locus standi to sue.

5. On the other point, viz., the merits of the case, the learned Judge, Small Cause Court, held that so far as suit for compensation for the damage to the goods 62 kgs. of raisins is concerned, the suit of the plaintiff must fail as the plaintiff did not take delivery within one -month of the arrival of the goods.

6. Regarding the claim for damages for short delivery, the trial court held that the plaintiff has proved the loss of Rs, 675.74 -and relying upon R. 13 of the Fundamental and Subsidiary Rules for the Interchange of Traffic between India And Pakistan, stated in Annexure I thereof, took the view that the claim of the plaintiff-respondents had to be settled, by the receiving railway i.e. in the present case, the Northern Railway and decreed the suit to that extent. It was also, held that the suit was within time.

7. Shri Y. K. Sabharwal, who appeared on behalf of the petitioner-defendant, made the following submissions:

(1) That there was no contract of carriage between the consignee and the defendant-petitioner;

(2) That there was no plea that the defendant-petitioner are liable on account of any bailment;

(3) That in view of S. 76-E of the Indian Railways Act, responsibility of railway -administration in case of traffic passing over railway in India and railway in foreign countries for any loss, destruction, damage or deterioration from whatever cause, cannot be fixed unless it is proved by the owner of the goods that such loss, destruction, damage or deterioration arose on the railway of the railway administration.

It was, urged in this connection that there is neither any averment nor any evidence on behalf of the plaintiff-respondents or otherwise that the loss arose on the railway of the railway administration. It was also urged in this connection that the learned Judge, Small Cause Court, has decreed the suit on the basis of certain rules known as Fundamental and Subsidiary Rules for the Interchange of traffic between India and Pakistan, which was not the basis of the suit. In any case, the learned counsel urged, these Rules are of no effect since the promulgation of S. 76-E of the Indian Railways Act by Indian Railways (Amendment) Act, 1961;

(4) That the suit is barred by time, and the plaintiff-respondents have also not proved the value of the goods.

8. I shall first take up the last point regarding limitation and the value of the goods. So far as the value of the loss is concerned, the learned trial Judge has relied upon the statement of P.W. 3, Manisher Lal. There was no evidence in rebuttal and there is no scope for interfering with that finding of the learned trial judge under S. 25 of the Provincial Small Cause Courts Act as it cannot be said that this decision is not in accordance with law.

9. Regarding the plea of limitation, it was negatived by the judge, Small Cause Court, and I feel rightly. In this case, open delivery was given on 25-111964. Thereafter notice was given under S. 80, C.P.C. Since it is a case of short delivery, the relevant article of Limitation Act is Art. 10. Under Art. 10 in a suit against carrier for compensation for losing or injuring goods, the limitation provided is three years from the time when the loss or injury occurs. In such circumstances, the relevant law is laid down by the Supreme Court in Jetmull Bhojraj v. Darjeeling Himalayan Railway Co. Ltd., : [1963]2SCR832 . in this judgment the Supreme Court held that where what is claimed in a suit against the Railway Administration is compensation for the damage to the goods which were eventually delivered, the appropriate article applicable would be Art. 30 and not Art. 31 and the burden would be on the railway administration who want to non-suit the plaintiff on the ground of limitation to establish that the loss or injury occurred more than one year before the institution of the suit. After the coming into force of the new Limitation Act, the Art. 10 is the corresponding provision to the old Art. 30 and now the period of limitation is three years from the time the loss or injury occurs. Since open delivery was given in the present case on 25-11-1964, the limitation would begin to run from 25-11-1964. Taking into account the time taken in sending the notices, the suit, having been filed on 25-1-1968 is within three years. thereforee, it must be held that the suit is within time and is not barred by time.

10. The other three submissions, as enumerated above, are in fact one submission, namely, that the plaint disclosed no cause of action. A bare look at the plaint would show that no case of bailment to the Northern Railway was pleaded in the plaint. What was pleaded was that loss was due to the negligence and want of proper care on the part of the railway administration. It will be noticed that S. 76-E of the Railways Act is now a special provision for fixing responsibility on the railway administration in ease of traffic passing over railway in India and railway in foreign countries. S, 76-E will be straightway applicable to the present case since the goods were admittedly booked from Peshawar which is in Pakistan, a foreign country. The suit should have failed on the short ground that it was not even alleged in the plaint that the loss arose on the railway of the railway administration.

11. The learned counsel for the respondent herein, however, urged that paragraph 4 of the plaint does make out that averment by implication. I am afraid, that it is not so as would be clear on a. bare reading of paragraph 4 of the plaint. There is not an iota of evidence on behalf of either party that the loss arose on the railway of the railway administration. On this short ground alone, the suit of the plaintiff should have failed. However, learned counsel for the respondent submitted that his case is based on a combined reading of Rr. 11, 12 and 13 read with R. 2 as contained in Annexure I to Fundamental and Subsidiary Rules in regard to interchange of traffic between India and Pakistan.

12. The opening part of these afore, said rules reads as under:

'The following rules for the interchange of traffic between India and Pakistan, framed at a meeting of the representatives of India and Pakistan held at New Delhi from 26th to 29th September, 1950. have been rectified by both the Governments and will be brought into force with effect from 1st January 1961 except where otherwise stated:-

Annexure I...........Fundamental It is thus apparent that these Rules have not been framed under the provisions of the Railways Act but have been framed in pursuance of treaty entered into between India and Pakistan. The relevant Rr, 2. 11, 12 and 13 provided as under:

' (2) Interchange of India-Pakistan traffic shall be regulated by the following fundamental rules and rules subsidiary thereto which cannot be amended, added to, or departed from, without the written consent of the two Governments

...... ......

...... ......

(11) Any claim for refund of over charges in the case of 'paid to pay' traffic 4hall lie against and be disposed of by the forwarding railway in respect of overcharges in the shares of the country in which the traffic originates and by the receiving railway in respect of over charges in the shares of receiving country. In the case of -all other traffic, claim shall lie against the country which made the collection.

(12) Incidence of claims for loss, damage, etc., to consignments, including loss, damage. etc. resulting from misdispatch, delay or exchange by one country against another shall be determined as follows-

(a) ...............

(b) ...............

(c)...............

(d) ................

(e) ...............

(13) Claims from the public for loss of or damage or delay to goods shall be dealt with by the receiving railway. The liability for legal expenses will be allocated in the same proportion as liability for the claim.'

13. It will be noticed that Rr. 11 and 12 of this Annexure are wholly irrelevant. R. 11 deals with claim for refund of overcharges and has got nothing to do with the present case. R. 12 deals with the right of one country against the other in case of incidence of claims for loss, damage etc. R. 13 merely gives a sort of locus standi to the public to make claims for the loss to goods in Indo Pakistan traffic before the receiving railway. It does not provide for as to in what cases the receiving railway will be responsible. As to in what cases the receiving railway will be liable the rules are completely silent. It is urged that the receiving railway, under R. 13) is liable for all cases of loss, damage or delay, I am afraid; this is not what R. 13 says. All th-t R. 13 says is that the claims from the public for loss or damage or delay to goods shall be dealt with by the receiving railway. It does not fix the responsibility of the receiving railway vis--vis the claims of the public. The claims have, in any case, to be dealt with in accordance with the law of the receiving country. In the present case. S. 76-E has not been complied with and in this view of the matter even if the rules, aforesaid, are still binding, the case of the plaintiff-respondents must fail.

14. Shri Sat Pal, learned counsel for the plaintiff-respondent, has brought to my notice the case reported as Union of India v. Amar Singh, : [1960]2SCR75 . It will 'be noticed that in that case the liability was fixed on the railways 'in India on the basis of implied contract of bailment. No such case of implied con

tract of bailment has been pleaded in the present case. thereforee, this case is of no assistance to the respondents,

15. The learned counsel then placed reliance upon the observations of Hidayatullah, J. in Maganbhai Ishwarbhai Patel V. Union of India, Air 1%9 Sc 7,83 at P. 792. in paragraph 25 which reads as under:

'A treaty really concerns the political rather than the judicial wing of the State. When a treaty or an award after arbitration comes into existence, it has to be implemented and this can only (be if all the three branches of Government to -wit the Legislature, the Executive and the Judiciary, or any of them, possess the power to implement it, If there is any deficiency in the constitutional system it has to be removed and the State must equip its6lf with the necessary power. In some jurisdictions the treaty or the compromise read with the award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such treaties and awards are 'self-executing'. Legislation may nevertheless be passed in aid of implementation but is usually not necessary.'

There is no quarrel with the proposition laid down in this paragraph, The aforesaid Fundamental and Subsidiary Rules, to the extent they go, merely give a right to a party to make a claim. So far as the grounds on which the Municipal Courts will entertain the claim is concerted that depends on the Statute and in the present case, we have S. 76-E of the Railways Act,

16. In view of my finding that the plaintiff failed to comply with the provisions of S. 76-E of the Railways Act, the suit must fail.

17. The Revision Petition is accordingly accepted and the judgment and decree passed by the learned Judge, Small Cause Court, dated March 28, 1973 is set aside.

18. On, the facts of this case, the parties are- left to, bear their own cots throughout

19. Revision allowed.


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