1. The question of law, and of some importance, which arises in these revision applications for our consideration is whether a consignor who is not an owner of a part of the goods consigned by him (whom we shall call 'consignor-non-owner' for the sake of convenience) along with his own goods and under the same parcel way bill, is competent to file a suit for recovery of compensation from the Railway administration for loss, destruction, deterioration or damage caused to the goods as a result of delay or detention on the part of the Railway administration in their carriage? This question being common ~to all these revision applications, they are all disposed of together by this common judgment.
2. The acts in all these cases are similar; and, therefore, we will refer to the representative facts of Civil Revision Application No. 272 of 1977 wily. It arises out of Regular Civil Suit No. 3963 of 1970 filed in the Small Cause Court at Ahmedabad, by M/s.Tolaram, Hariram and K. A. Khadar as plaintiffs Nos. 1 and 2 respectively against the Union of India, owning and representing Western Railway, as the defendant. Plaintiff No. I M/s. Tolaram Hariram is a-fruit merchant of Ahmedabad and is doing business in mangoes as' commission -agent. Plaintiff No. 2 is a grower-supplier of 'mangoes, having his mango orchards at Damalcharuva in the State of Andhra Pradesh. Some time prior to June 19, 1967, plaintiff No. I had placed an order with plaintiff No. 2 to dispatch one-wagon load of fresh raw mangoes from Damalcharuva to Ahmedabad by parcel or passenger train. After receiving this order, plaintiff No. 2 had placed an indent for a wagon with the Railway administration at Damalcharuva. He had then paid the requisite fee and had filled in the forwarding note; all this was done as per the prescribed procedure. Thereafter the wagon was allotted to plaintiff No. 2. Plaintiff No. 2 then loaded the said wagon with 882 baskets of fresh raw mangoes and had handed over the same to Railway administration for carrying them to Ahmedabad. It may be noted that if the consignment is booked as a parcel or parcels, then a parcel way bill is issued in which case the consignment is carried by a passenger or a parcel' train and not by a goods train; whereas if the consignment is booked as 'goods' then the Railway receipt is issued and the goods would be carried by a goods train. As the consignment in this case was a wagonload and as plaintiff No. 2 as parcels booked it, parcel way bill was issued to him showing his name as the consignor. This was done on June 19, 1967. This consignment had reached Ahmedabad on June 28, 1967. Open delivery was given to plaintiff No. I at Ahmedabad on the same day; and at that time it was found that the mangoes were in a decayed condition. The consignment was thus found in a damaged or deteriorated condition and the defendant assessed the loss at 27%. According to the 'plaintiffs, the mangoes had deteriorated due to unreasonable delay on the part of the' Railway administration in transporting the same 'from Damalcharuva to Ahmedabad and that had resulted into a loss of more than Rs. 2,381.40 to the plaintiffs. However, they confined their claim to Rs. 2.381.4OPs. For recovering this amount, the plaintiffs first gave a claim notice to the Railway administration and then served them with a statutory notice. As * no heed was paid to these notices, the plaintiffs filed the aforesaid suit for the recovery of Its. 2,381.40 Ps. plus interest at the rate of 6% per annum. The plaintiffs filed the said suit on Aug. 20, 1970.
3. The defendant resisted the said suit on various grounds; it, was contended by the defendant that the plaintiffs had no, right to file the suit. It was denied that the consignment had been delivered after unreasonable or unusual delay and that the goods were in decayed conditions when delivered. It was also denied that the goods had deteriorated due to delay; and that there was any negligence or misconduct on the Part of the Railway administration or any of its servants which had caused delay or detention.
4. The learned trial Judge in view of the aforesaid pleadings of the parties amongst other issues had raised an issue as to whether the plaintiffs have a right to sue. Since we are not concerned with other issues raised in the suit at this stage, we are not referring to those other issues; and we will only refer to, in 'brief, the findings recorded by the trial Court on those issues. The trial Court held that the suit goods when delivered to the plaintiffs were in decayed or deteriorated condition: that there was unreasonable delay in delivering the goods to the plaintiffs and that this delay had caused decay or deterioration. The trial Court also held that as a result of the decay or deterioration of the mangoes the plaintiffs had suffered damages to the extent of Rs. 2,381.40ps. As regards the competency of the plaintiffs to sue it appears that the learned Advocate appearing for the defendant-Railway administration had not pressed that issue in the first instance. However, during the course of arguments, it was submitted by him that S. 76 of the Act provides that the Railway administration shall be responsible for the loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the Railway administration proves that the delay or detention arose without negligence or misconduct on the part of the Railway administration or of any of its servants; and, therefore it would be only the owner who can file a suit for damages and the consignor non-owner is not competent to file the suit. This submission was made on the basis of the evidence of plaintiff No. 1(?) who had admitted that part of the goods consigned by them did not belong to them but belonged to another merchant although they had arranged for the transport of the same It was on the basis of this evidence that it was contended by the learned Advocate for the defendant that no decree can be passed against the Railway administration in a suit filed by such a consignor even though it is proved that the goods consigned were damaged or had deteriorated as a result of delay on the part of the Railway administration. t& contention was negatived by the learned trial Judge On the ground that the consignor is a person who is always entitled under the law to file a suit for breach of contract. The learned trial Judge further held that the word 'owner' as used in S. -76 of the Act includes 'consignor' as the owner need not be a full owner and any person who has some right or interest in the property can also be said to be an owner to that extent. The learned trial Judge, therefore, decreed the suit in favour of plaintiff No. 2 only as the purshis Exh. 63 was filed on behalf of the plaintiffs to the effect that the decree may be passed in favour of plaintiff No. 2 only and no decree may 'be passed in favour of plaintiff No. 1.
5. As stated above, the facts in other cases are similar. The difference is with respect to the names of the consignors, number of baskets of mangoes consigned, the place from where and date on which they were delivered to the Railway administration and the date on and the condition in which they were received at Ahmedabad. In all these cases, the consignors and the consignees together had filed the suits. Similar contentions were raised; similar purshis were given and for the same reasons the suits were decreed by the learned trial Judge,
6. Against all these judgments and decrees, the defendant Union of India has filed these revision applications.
7. This group of revision applications, together with some first appeals, first came up for final hearing before our learned brother Surti, J. Mr. M. 1VL Shah, the learned Advocate for the petitioners-defendants had made a statement before Surti, J. that the only point which. he was raising was about the legality 'of the decrees passed in favour of the consignors, with respect to the goods which were, no doubt, consigned by them along with their own goods, but which really did not belong to them, in absence of the real owners joining as plaintiffs in the suits.
8. This submission of Mr. Shah was based upon the wordings of S. 76 of the Act, that 'a Railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods, proved by the owner to have been caused by delay or detention in their carriage.' Surti, J. was not inclined to accept this submission. However, considering the importance of the question raised before him, large number of cases in which such a question arose and is likely to arise and the financial liability of the Railway administration, he decided to refer all these matters to a larger Bench. This is how; these revision applications have come up for hearing before us.
9. Mr. M. M. Shah, the learned Advocate for the petitioners has raised before us the following contention:
'The plaintiffs-consignors, who are not the owners of a part of the goods consigned by them, along with their own goods, and under the same P. W. bill, had no right to file these suits for recovery of compensation from the Railway administration, for the damage -)r deterioration caused to those goods as a result of delay or detention by the Railway administration in their carriage; and, therefore, the decrees passed by the trial Court in their favour in respect of those goods are illegal.
Mr. Shah has submitted that even under the general law such a consignor is not competent to sue. In the alternative he has submitted that even if the consignor is otherwise competent to sue, he cannot sue the Railway administration for damage or deterioration could to the goods consigned by him when he is not the owner thereof, as S. 76 of the Act makes the Railway administration responsible only to the owner of -the goods consigned.
10. Mr. S. K. Agrawal, the learned Advocate for the opponents-plaintiffs, on the other hand, has contended that the Act does not contain any provision laying down who will be competent to sue the Railway administration when it has become responsible for the loss or damage caused to the goods carried by it. In his submission, this question will have to be decided by reference to the general principles of law and the provisions of the Indian Contract Act. According to him, a consignor of goods can always sue the Railway administration for any loss, damage or deterioration caused to the goods, firstly because he being 'a party to the contract can always sue and secondly because the relationship between the consignor and the Railway administration being that of a bailor and a bailee the bailee cannot dispute the title of the bailor. He has also submitted that the object of S. 76 of the Act is not to restrict the rights of a party who is otherwise competent to sue the Railway administration for the reasons stated therein, but is to provide as to when and to what extent it will be responsible for loss, damage or deterioration caused to the goods carried by it due to delay or detention on its part. According to him, therefore, the trial Court was right in decreeing the suits.
11. Before we proceed to consider the contentions raised by Mr. Shah,, the learned Advocate for the petitioner, it will be necessary to examine the nature and extent of the responsibility of the Railway administration as a carrier of goods. Before the Indian Railways Act, 1890 (hereafter referred to as 'the Act') was amended by Act 1961, the nature and extent sibility of the Railway was as provided in S Relevant portion of under:
'72. Measure of the general responsibility of a Railway administration as carrier of animals and goods: -
(1) The responsibility of a Railway administration for the loss, destruction, or deterioration of animals or goods delivered to the administration to be carried by Railways shall, subject to the other provisions of this Act, be that of 4 bailee under Ss. 151, - 152 and 161 of the Indian Contract Act, 1872 (9 of 1872).
(3) Nothing in the common law of England or in the Carriers Act, 1865 (3 of 1865), regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway administration.'
' Thus the responsibility of the Railway administration as a carrier of goods was that of a bailee and not that of a common carrier as under the Common Law of England. Even the Indian Carriers Act, 1865 was not made applicable to the Railways except to a very small extent. In the year 1961, however, a significant change was brought about; and the responsibility of the Railway administration as a carrier of goods, which was hitherto as a bailee, was converted to that as a common carrier, during the period of the actual transit. This responsibility as a common carrier, however, is again restricted or regulated by the provisions contained in Ss. 73 to 82-J which are now contained' in Chap. VII of the Act. It is not necessary to refer to all these newly added sections but it will be necessary to consider the provisions contained in Ss. 73, 74 and 76 of the Act. These sections read, as under:
'73. Save as otherwise provided in this Act, a Railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by Railway, arising from any cause except the following, namely:-
(a) Act of God;
(b) Act of war;
(c) Act of public enemies;
(d) Arrest, restraint or seizure under legal process;
(e) Orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in the behalf;
(f) -Act of omission or negligence of the consignor or the consignee or the agent or servant of, the consignor or the consignee;
(g) Natural deterioration or wastage in bulk or weight due to inherent defect in quality or vice of the goods;
(h) Fire, explosion or any unforeseen risk;
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the Railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods.
74 (1).' When any animals or goods are tendered to a Railway administration for carriage? By Railway and the Railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate in this Act referred to as the Railway risk rate) or in the alternative at a special reduced rate (in this Act referred i to as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the Railway risk rate.
(2) Where the sender or his agent elects in writing to pay the Railway risk rate under sub-s. (1), the Railway administration shall issue a certificate to the consignor to that effect.
(3) When any animals or goods are deemed to have been tendered to be carried, or are carried, at the owner's
risk rate, then, notwithstanding any thing contained in S. 73, the Railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery, in transform upon damage, deterioration or non-delivery was due to negligence or misconduct on the Part of the Railway administration or of any of its servants.
76. A Railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods Proved by the owner to have been caused by delay or detention in their carriage unless the Railway administration proves that the delay or detention arose without negligence or misconduct on the part of the Railway administration or of any of its servants.
In place of old S. 72 we have now S. 73 which specifies general ' responsibilities of the Railway administration as a carrier of goods. A bare reading of that Provision would show that the responsibility of the railway adminration is now that of a common carrier. It is almost similar to that of .a common carrier under the Common Law of England. Section 74, however, restricts the responsibility of the railway administration when the goods are not carried at the railway, risk rate but are carried at the owner's risk rate. In such a case, sub-section (3) of Section 74 provides that the railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery, of the goods from whatever cause arising, except from Proof that such loss, destruction damage, deterioration or no delivery was due to negligence or misconduct on the part of the railway administration or of any I of its servants. Thus, when the goods are carried at the owner's risk rate, the liability of the railway administration will not be absolute as that of an insurer but will be as ' that of a bailee. It is in this background that we will have to consider the contentions raised by Mr. Shah that even under the general law a consignor who is not an owner of the goods is not competent to me a suit for damages against a carrier. As stated above, Mr. Shah has conceded that a consignor owner can always file such a suit. In our opinion, this contention of Mr. Shah is misconceived and ignores the distinction between the right of a party to the contract to Me a suit for breach of contract and the right of an owner of the goods to bring an action for damage caused to or loss of his goods independently of any contract entered into between the consignor and the carrier. When a consignor brings an action against the railway administration for compensation for loss suffered by him, it is by reason of breach of contract committed by the railway administration. It may also be by reason of the misconduct on the part of the railway employee in dealing with the consignment. When a consignor is not the owner of the goods consigned, in such a case, the owner of the goods may also sue for compensation, basing his claim on his title, for the loss of goods or damage caused to them by misconduct on the part of the railway employees. However, in such a case, the cause of action will be ex delicto. When a consignor delivers his goods to the railway administration and the rail way administration accepts the same for being carried as desired by the consignor, a contract between the consignor and the railway administration comes into existence. As provided in Section 72 of the Act, at that point of time, the' consignor is required to execute a forwarding note in a prescribed form. This forwarding note inter alia contains particulars regarding date when and the place where it is made out, the names and addresses of the consignor and the consignee, place of destination, nature of goods etc. As per this contract, the railway administration Is bound to carry the goods and deliver the same, to the consignee or to any other person as might have been agreed upon between the parties at the place of destination within a reasonable time and in the same condition in which the goods were handed over to the railway administration except in case of latent defects or inherent vice in the goods themselves. Therefore, if the goods are not delivered within a reasonable time or in the same condition in which they ought to have been delivered, there is a breach of contract. It is this breach of contract, which will always entitle the consignor, except in certain well-recognised exceptions, to file a suit against the railway administration for damage or deterioration caused to the goods consigned by him. Such a consignor being a party to the contract can always file a suit against a carrier for damages as laid down in various cases. We will refer to only a few of them.
12. In Seth Chhangamal v. Dominion of India : AIR1957Bom276 a Division Bench of the Bombay High Court after referring to the observations made in Article 135 in Macnamara's 'Law of Carriers by Land' 2nd Edition and in Articles 481 and 482 of Halsbury's 'Laws of England', 3rd Edition, Vol. IV, has held as under:
'Two propositions appear to be well settled. The right of action to recover Compensation for loss or damage to the goods ordinarily vests in the consignor. Where the goods lost or damaged in transit are the subject-matter of a contract of sale, the owner of the goods may in the absence of a contract to the contrary sue the railway administration. Therefore, a consignee who is in possession of a railway receipt duly endorsed by the consignor may maintain an action for compensation for loss of the goods covered thereby, but he can do so not because he is the consignee but because he is the owner of the goods. A consign' may sue for compensation for loss relying upon the breach of contract of consignment.'
13. In Union of India v. Dayabbal Laxman, AIR 1962 GuJ 266, this Court after considering the provisions contained in Section 72 of the Act, as tt stood prior to the amendment of the Act' by Act 39 of 1961, and Sections 148 and IL61 of the indian Contl7act Act, held that if the conditions of Section 161 of the Contract Act are satisfied, the railway is responsible to the bailor i.e. the consignor for any loss, destruction or deterioration of the goods. It has been observed in that case that:...... Under Section 161 of the Contract Act, in the case of bailment the, bailee is responsible only to the bailor, and if a person, who is not a bailor, files a suit against the bailee for any loss, destruction or deterioration of goods, it is for him to show how he is entitled to sue when he is not in the position of a bailor ............
(3) . ......... ......... ......
Ordinarily, it is only a party to a contract who can sue upon the contract.'
In Ibrahim v. Union of India, : AIR1966Guj6 , a Division Bench of this Court again had an occasion to consider the question as to whether benefits of a contract entered into between the consignor and the railway administration can be assigned, and whether such an assignee would get a right to sue the railway administration. In dealing with the aforesaid question, this Court held as under:
'In the absence of the creation of an actionable claim, the rights created under the contract of bailment would be rights in personam, rights which arise out of the contract of bailment, pure and simple, and the law which would govern the rights of the parties to the contract would be the same which govern the rights of the parties to an ordinary contract. It is well known that, ordinarily, only a privy to a contract has a right to sue for breach of a contract.'
14. In Commrs. Port of Calcutta v. General Trading Corporation, AIR 1964 Cal 290, the Calcutta High Court has also held like this:
'The following principles have now been well established on the question as who between the consignor and the consignee is entitled to sue the carrier ie. the Railway for loss or non-delivery of goods:
(i) (a) Where the action is founded on contract, the right to maintain an action on the contract belongs to the person who entered into the contract. Ordinarily that person is the consignor,
The aforesaid decisions -clearly lay down that the consignor being a party to the contract could always file a suit for damages. It may be noted that we are not concerned with any of the well-recognised exceptions to this general rule. It is not the case of the railway administration that the consignors in these cases were acting as agents of the consignees or of the real owners of the goods. Again, these are not the cases where the goods were delivered to the railway administration for transportation pursuant to any contract' of sale. In these cases the consignors were owners of part of the goods consigned by them. Other goods which were consigned along with their Own goods belonged to other persons who were like them growers of mangoes- Those goods were given to them for the purpose' of arranging their transport along with the goods of the consignors. They were transported in each case under one-parcel waybill and in the, same wagon. In these circumstances, the consignors in these cases cannot be termed as 'agents' of, the real owners of the goods. The real relationship, which came into existence between them, would be that of a bailor and a bailee. In all these cases the consignors would be in the position of gratuitous bailees and in that capacity they again entered into contracts of bailment with the railway administration. In these circumstances, therefore, the railway administration cannot dispute the title of the bailors and cannot question their competency to file these suits. In this connection, we are supported in our view by a decision of Allahabad High Court in G. 1. P. Railway v. Radhey Mal Manni Lal : AIR1925All656 . In that case the plaintiffs had consigned not only their own goods but also some other goods, which their customer had purchased for himself and had asked them to consign with' plaintiffs' own goods. It, was, therefore, argued in that case that the Plaintiffs being not the owners of the entire goods, they were not competent to maintain the suit. Allahabad High Court, dealing with such a. contention held: 'To this argument the clear answer was that as between the Railway Company, on the one hand, and the plaintiffs, the consignors, on the other, the Railway Company could not dispute the title of the consignors to the goods
15. In Rogers, Sons - and Co. T. Lambert and Co., 1891 (1) QBD 318, this is what the Court of Appeal in England has observed:
'It. is an implied term of the bailment of goods that the bailor at the time of the bailment had a good title to the goods bailed. The general rule is as was said by Blackburn, J., In Biddle v. Bond, (1865) 6 B and S. 225 at A 231, 'that one who his received Pr0perty from another as his ballee, or agent or servant, must restore Or account for that Property to him from whom he received ii' A ballee may however, equally with a tenant, show that the title of his bailor to the goods has expired since the bailment: Thorne v. Tilbury, (1958) 3 H and N 534. So, too, a bailee may set up a jug tertii, if the facts show that there has been what is equivalent to an eviction by title paramount; ShelburY V. Scotsford, (1602) Yelv 23. But suppose the bailee retains possession of the goods, and there has been no eviction, the bailee may, nevertheless, set up and rely upon the jug tertit if he defends his possession upon the right and title and by the authority of the tertius. Biddle v. Bond (1865) 6 B. and S. 225, is an authority _for this. In that case, Blackbum, J. delivering the Judgment Of the Court of Queen's Bench, said (at p. 233) We think that the true ground on which a bailee may set up the No tertii is that indicated in Shelbury v Scotsford, viz, that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent I to an eviction by title paramount. It is not enough that the bailee has become aware of the title of a third person. We agree in what is said in Betteley v. Read (184:3) 4 QB 511, 517 that to allow a depositary of goods or money, who has acknowledged the title of one person to set up the title of another who makes no claim, or has abandoned all claim, would enable the deposits17 to keep for himself that to which he does not pretend to have any title in himself whatsoever. Nor is it enough that an adverse claim is made upon him, so that he may be entitled to relief under an interpleaded- We assent to what is said by Pollock, C. B., in Thorne v. Tilbury (1858) 3 H and N. 534, 537, that a bailee can set up the title of another only 'if he defends upon the right and title and by the authority of that' person.'
I6. In Morris v. C. W. Martin and Sons Ltd. 19M WLR 276 the Court of Appeal in England while considering the case of sub-bailment and the liability of the sub-bailee to the owner of the goods has observed as under:
'So far I have been dealing with the cages where the owner himself has entrusted the goods to the defendant. But here it was not the owner, the Plaintiff, who entrusted the fur to the cleaners. She handed it to Beder, who was a bailee for reward. He in turn, with her authority, handed it to the cleaners who were sub-bailees for reward. Mr. Beder could clearly himself sue the cleaners for loss of the fur and recover the whole value, unless the cleaners were protected by some exempting conditions.'
On the question as to whether the Plaintiff in that case could have sued the cleaners directly, reliance was placed upon a passage from a book of 'Pollock and Wright on Possession (1888)', page 169, which reads as under:
'If the bailee of a thing sub-bails it by authority and there is no direct privity of contract between the third person and the owner it would seem that both the owner and the first bailee have concurrently the rights of a bailor against the third person according to the nature of the sub-bailment.1' On this basis it was held in that case that even the plaintiff in that case could sue the defendants directly. The point to be emphasised is that it was in terms observed- in that case that Mr. Beder who was not the owner of the fur but h had entrusted the same to the cleaners could himself sue the cleaners' for the loss of the fur and recover the whole value.
17. Mr. M. M. Shah, however, has placed reliance upon a decision of the Supreme Court in Union of India v. W. P. Factories, AIR 1966 SC 395; and has contended that the Supreme Court has doubted as to whether the consignor who is not the ~owner of the goods can file a suit for damages against the carrier. He has mainly relied upon the following observations of the Supreme Court of its judgment:
'(10) The contention of the appellant with respect to five of the consignments in the suit of the Factory was that as the consignee of the five railway receipts was the J. C. Mills, the consignor (namely, the Factory) could not bring the suit with- respect thereto and only the J. C. Mills could maintain the suit. Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has passed from the consignor to some-one-else, that the other person may be able to sue. Whether in such a case the consignor can also sue does not arise on the facts in the present case and as to that we say nothing. The argument on behalf of the appellant is that the railway receipt is a document of title to goods (see Section 2(4) of the Indian Sale of Goods Act, No. 3 of 1930), and as such it is the consignee who has title to the goods where the consignor and consignee are different. It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. Take a simple case where the owner books a consignment and the consignee is the owner's servant, the intention being that the servant will take delivery -at the place of destination. In such -a case the title to the goods would not pass from the owner to the consignee and would still remain with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination. It cannot, therefore, be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor. As we have said, already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each- case and so we have to look at the evidence produced in this case to decide whether in the case of five consignments booked to the J. C. Mills, the title to the goods had passed to the Mills before the fire broke out on March 8, 1943. We may add that both the courts have found that title to the goods had not passed to the J. C. Mills by that date and that it was still in the consignor and, therefore, the Factory was entitled to sue.'
It is difficult for us to appreciate the contention of Mi Shah based upon the aforesaid observations. Far from supporting the contention raised by Mr. Shah, the said observations support the view that ordinarily it is the consignor who can sue if there is damage caused, to the 'consignment, 'for the contract of carriage is between the consigner and the railway administration. In the instant case, there is no quest; on of passing of the property in the goods from the consignor to the consignee. As pointed out above, the consignees in the present cases are not purchasers of the goods. , Therefore, there is no reason why the ordinary rule that a consignor can sue the railway administration should not prevail.
18. Another decision on which Mr. Shah has placed -reliance ', is to be found in Union of India v. 'ashan Mul and Co. : AIR1976Delhi335 . He has relied from the following observations made in paragraph 19 of that judgment:
19. On a review of the course of judicial decisions from : 1SCR580 spanning a period of over half a century, 'it appears that the law with regard to the right to sue the carrier could be said to have been fairly crystallised and some of the propositions co7.11d be' treated as well settled. There is thus no doubt that a consignor would be entitled to sue both by virtue of being a party to the contract of carriage .as indeed, a repository of title to the goods forming subject-matter of such a contract, unless of course on the date of the contract was entered into property in the goods had already, passed to the buyer and the goods were, therefore, handed to the carrier for delivery to the buyer in course of' trade, in which case the consignor would be merely deemed to be an agent of the real owner and the real OVIM alone would be competent to sue.
This decision cannot help Mr. Shah, because as pointed out above, present cases are not cases of sale, and at no point of time the property in the goods had passed from the consignor to the consignee. The consignees were not purchasers of the goods; and, therefore, on delivery of those goods to the railway administrator they do not become the owners of the goods. The aforesaid decision is not an authority for the proposition that the consignor who, at the time of entering into a contract of consignment, was not an owner of the goods cannot file a suit for damages against the- carrier. As we have pointed out above, the relationship, which would come into existence between such a consignor and the carrier, would be that of sub-bailment. Therefore, in our opinion, the aforesaid decision has also no application to the facts of the present case. The first part of the contention of Mr. Shah must, therefore, be rejected. We hold that the consignors in all these cases being parties to the contract of consignment, will have a right to sue the railway administration for damage or deterioration caused to the consignments, while in - transit, on account of delay or detention on the part of the railway administration.
19. ' Mr. Shah has, however, contended that in view of the special provision contained in Section 76 of the Act, a consignor-non-owner will have no right to file a suit in a case where the damage or deterioration has been caused by delay or detention on the part of the railway administration. In our opinion, even this contention of Mr. Shah cannot be upheld. Chapter VII of the Act deals with the responsibility of the railway administration as carrier. Section 73 provides that the responsibility of railway administration is only that of a common carrier. Sections following Section 73 provide for restricting the responsibility of the railway administration in the circumstances mentioned therein. On a careful examination of the said provisions we find that they do not provide for the competency or otherwise of a person to file a suit against the railway administration for damages in any of the cases where the railway administration will be responsible. Therefore, with a view to determine the question as to whether a person is competent to file a suit for damages against the railway administration, we will have to turn to the general law of contract and not the provisions contained in Section 76 of the Act. This Court had an occasion to interpret Sections 73, 74 and 76 of the Act though in a different context, in a group of First Appeals, Nos. 177, 306, 564, 565, 594 and 830 of 1973 and 449, 450, 451, 452 and 468 to 481 of 1974 decided by J. B. Mehta and M. C. Trivedi, JJ. on October 21, 1976. In those cases the question was whether Section 76 of the Act would be applicable in cases where the goods were carried at owner's risk rate even though damage or deterioration to the goods was caused as a result of delay or detention in their carriage by the railway administration. This Court negatived the contention raised on behalf of the railway administration and held that even in cases where the goods are carried at owner's risk rate if the goods got damaged or deteriorated as a, result of delay or detention in their carriage, the railway administration would be liable under Section 76 of the Act. However, what is material for our purpose is the following observation made by the Division Bench of this Court
'On behalf of the railway administration it is argued that the plaintiffs have not succeeded in proving that damage or deterioration of the mangoes was the result of delay or detention in transit. It was also argued by Mr. Shah for the railway that Section 76 of the Act requires the owner of the goods to prove that delay or detention in transit resulted in damage or deterioration of the goods. In all the cases before us, the consignees as well as the consignors are the plaintiffs. Therefore, it cannot be said that the owners of the goods have not come forward to prove that damage or deterioration of goods was the result of delay or detention in transit. The section nowhere provides that the consignor or the consignee, if otherwise entitled to file a suit for damages, cannot file a suit for compensation under Section 76 of the Act.'
If we examine the provisions contained in Sections 74 and 76 together, it becomes clear that Section 76 is in the nature of a proviso or an exception to Section 74 (3). Under Section 74 (3), the railway administration would not be responsible except upon proof that the loss, destruction, damage, deterioration or Non-delivery of the goods, arising from whatever cause, was due to negligence or misconduct on the part of the railway administration or of any of its servants. Therefore, it will be for the person claiming damages to prove negligence or misconduct on the part of the railway administration or any of its servants. It may be noted that Section 74 (3) of the Act speaks of damage, loss, destruction, deterioration or non-delivery arising from whatever cause. As against that Section 76 provides for the responsibility of the railway administration for loss, destruction,, damage or deterioration of goods caused as a result of delay or detention in transit, In such a case, it is the railway administration which will have to prove that the delay or detention arose without negligence or misconduct on the part of the railway administration or any of its servants. Thus, the obvious intention of the Legislature in enacting Section 76 was to shift the burden from the claimant to the railway administration in those cases where the damage to or deterioration of the goods is first proved by the owner to have been caused by delay or detention in transit. Mr. Shah has, however, contended that the words used in Section 76 are ' loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused,' He has laid great emphasis on the words 'proved by the owner'; and ~ on th4' basis of these words he has contended that it is only in those cases where the owner proves loss, destruction, damage or deterioration of the goods, that the railway administration will be responsible for the damages caused to the goods. He has submitted that if the owner alone is required to prove loss, destruction, damage or deterioration of the goods, it is he alone who can file a suit against the railway administration. In our opinion, even this submission of Mr. Shah is not justified. As we have pointed out above, the purpose of enacting Section 76 is not to provide for the competency or other wise of a person to sue for damages in the circumstances mentioned there in. ' If a consignor can sue under Section 74 (3) of the Act, there is no reason why he cannot sue in a case contemplated by Section 76 of the Act. Moreover, if the words 'proved by the' owner' are literally construed it would mean that it is the owner himself who has to prove the ' loss, destruction, damage or deterioration of the goods consigned. This interpretation may lead to certain anomalous situation; for example in a case where the owner is a minor who cannot enter the box and give evidence or file a suit in his own capacity. In our opinion, what the Legislature intended by enacting Section 76 of the Act is to provide that in case of any loss, destruction, damage or deterioration of goods arising as a result,, of delay or detention of the goods while in transit, the railway administration would be responsible to the extent the loss, destruction; damage or deterioration is proved to have been caused to the owner as al result of the delay or detention. Mr. Shah has objected to our reading this provision in this manner on the ground that we would thereby be changing the language of the section and re-enacting the provision as contained in Section 76 of the Act. However, it is well settled that if, a literal interpretation gives rise to an anomaly or results in something which may defeat the purpose of the Act and if there are two possible constructions which can be put upon the words to be interpreted, the Courts may prefer the second construction which though may not be literal may effectuate the legislative intent. In this view of the matter, we also reject the second contention of Mr. Shah.
20. In view of the 'aforesaid discussion, we hold that the consignors in the present cases were competent to sue the railway administration for the damage or deterioration caused to their consignments as a result of unreasonable delay caused by the railway administration in, their transportation. In this view of the matter, the finding recorded by the learned trial Judge in each of the 9 suits that the suit filed by the plaintiffs is maintainable, is confirmed.
21. In the result, all the revision applications are dismissed; and the Rule in each of them is discharged with costs.
22. Revision Dismissed