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Union of India (Uoi) Vs. the New Vijay Weaving Works - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR322
AppellantUnion of India (Uoi)
RespondentThe New Vijay Weaving Works
Cases ReferredUnion of India v. Sri Narayan Agarwall
Excerpt:
- - 1. an interesting question which arises to be determined in this revision application is how far the government of india is exempt from the liability arising out of loss, misdelivery or delay of or damage to any postal article in course of transmission by post, resulting from fraud or wilful act or default of an officer of the post office in view of the provisions contained in section 6 of the indian post office act, 1898 which is hereinafter referred to as 'the act. 35. (1) a parcel shall be packed and enclosed in a reasonably strong case, wrapper, or cover, fastened in a manners calculated to preserve the contents from loss or damage in the post, to prevent any tampering therewith and to protect other postal articles from being damaged in 'any way thereby. if a parcel contains.....t.u. mehta, j.1. an interesting question which arises to be determined in this revision application is how far the government of india is exempt from the liability arising out of loss, misdelivery or delay of or damage to any postal article in course of transmission by post, resulting from fraud or wilful act or default of an officer of the post office in view of the provisions contained in section 6 of the indian post office act, 1898 which is hereinafter referred to as 'the act.'2. short facts of the case are that the respondent-plaintiff is a firm manufacturing and selling cloth at ahmedabad. on 9th february, 1965 it sent three registered post parcels containing cloth through gandhi road post office. the first parcel which was bearing no. 56 contained cloth worth rs. 765.42. the second.....
Judgment:

T.U. Mehta, J.

1. An interesting question which arises to be determined in this Revision Application is how far the Government of India is exempt from the liability arising out of loss, misdelivery or delay of or damage to any postal article in course of transmission by post, resulting from fraud or wilful act or default of an officer of the Post Office in view of the provisions contained in Section 6 of the Indian Post Office Act, 1898 which is hereinafter referred to as 'the Act.'

2. Short facts of the case are that the respondent-plaintiff is a firm manufacturing and selling cloth at Ahmedabad. On 9th February, 1965 it sent three Registered Post parcels containing cloth through Gandhi Road post office. The first parcel which was bearing No. 56 contained cloth worth Rs. 765.42. The second parcel bearing No. 68 contained cloth worth Rs. 285/- and the third parcel bearing No. 64 contained cloth worth Rs. 804.94. When the parcels were presented to the addressees they refused to accept the delivery as they were found tempered with, and were also short in weight. They were, therefore, returned back, and when offered to the plaintiff, the latter demanded open delivery. The open delivery of parcels Nos. 63 and 64 was given on 25th February, 1965, and that of the remaining parcel No. 56 was given on 5th March, 1965. At the time of taking open delivery, the following facts were noticed:

(i) There was shortage of cloth worth Rs. 501.75;

(ii) The weight of the parcels was less than the original weight taken at the time when they were handed over to the post office,

(iii) Some postage stamps affixed to the parcels were found missing,

(iv) Weight of parcel No. 63 was found more than the original weight, while the weight of remaining two parcels was less than the original weight.

(v) It appeared that the parcels were opened and restiched.

The case of the plaintiff is that all these parcels were tempered with while they were in custody of the post office, and that some of the members of the staff of the post office have stolen away or mis-appropriated the cloth which is found short. The plaintiff firm after taking open delivery of the parcels, wrote two letters and several reminders to the postal authorities. Ultimately the postal authorities sanctioned compensation of Rs. 75/- to the plaintiff, but the plaintiff did not accept the same, and finally gave a notice under Section 80 of the Civil Procedure Code on 26th September, 1966 claiming damage of Rs. 626.89. Since no reply to this notice was received by the plaintiff, the plaintiff has filed the present suit for the recovery of the total amount of Rs. 673/-. The case was tried and disposed of by the Court of Small Causes at Ahmedabad where the suit was registered as Civil Suit No. 1552 of 1968.

3. One of the questions which were raised before the Trial court on behalf of the petitioners-defendants was whether the postal department would be liable for any loss or damage to the parcels in question in view of the provisions contained in Section 6 of the Act. In this connection the contention of the petitioners-defendants is that Section 6 of the Act exempts the Government from any liability arising on account of any type of loss, misdelivery, delay of or damage to any postal article in course of transmission by post and, therefore, even if it is believed that loss or damage in question is the result of some wilful act committed by any of the officers of the post office, the present suit cannot succeed.

4. As against this, the contention of the opponent plaintiff is that Section 6 stipulates exemption from liability arising out of that loss or damage which is the result of a legitimate discharge of duties by the postal officials and, therefore, it does not protect the Government in a case wherein loss or damage is the result of any fraud or wilful act of an official of the post office.

5. In support of these contentions the learned Advocates of the parties have raised some side issues to which I would presently make a reference. But, before taking up these side issues for my consideration it would be necessary to note that the learned Trial Judge has accepted the view-point canvassed by the plaintiff and has, therefore, passed the decree against the defendants for Rs. 662/- and costs of the suit. According to the finding of the learned Trial Judge, goods worth Rs. 551.89 were found' missing from the parcels as a result of some mischief played by some of the officers of the postal department during the course of transit.

6. Before taking up the contentious point for my consideration it would be necessary to refer to the relevant provisions of law. Section 6 of the Act the provisions of which are required to be interpreted is in the following terms:

The Government shall not incur any liability by reason of the loss, misdelivery or delay of or damage to, any postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided; and no officer of the Post office shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default.

This section speaks of a postal article in course of transmission. The expression 'in course of transmission by post' is explained in Clauses (a) and (b) of Section 3 of the Act as under:

3. For the purposes of this Act,

(a) a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII;

(b) the delivery of a postal article of any description to a postman or other person authorized to receive postal articles of that description for the post shall be deemed to be a delivery to a post office;

The expression 'officer of the post office' which is found used in Section 6 is defined in Section 2(e) as under:

the expression 'officer of the Post Office' includes any person employed in any business of the Post Office or on behalf of the Post Office.

Sections 28 and 29 of Act are with regard to registration of postal articles. Section 28 provides that the sender of a postal article may have the article registered at the post office at which it is posted on payment of such further fee as may be fixed by the Central Government. Section 29 empowers the Central Government to make rules as to the registration of postal articles. Such rules are found to have been made and are known as Indian Post Office Rules, 1933, Part I thereof contains Rule No. 35, Sub-rule (1) of which is relevant for our purpose. This sub-rule is in the following terms:

35. (1) A parcel shall be packed and enclosed in a reasonably strong case, wrapper, or cover, fastened in a manners calculated to preserve the contents from loss or damage in the post, to prevent any tampering therewith and to protect other postal articles from being damaged in 'any way thereby.

'If a parcel contains cloth or woollen material, it must be packed in a strong wrapper with an outer covering of stout card-board or cloth. Parcels containing articles of great value like gold, bullion, jewellery and the like must be packed in a metal container or a wooden or a stout card-board case according to the nature of the article.'

7. Now the contention of the opponent-plaintiff is that when a post office accepts a registered article for delivery to the addressee, it becomes an agent of the sender and accepts the contractual obligation to deliver it to the addressee in the same condition in which it is received, and if it fails in doing so on account of any fraud or wilful neglect of any of its officers, Section 6 does not save the Government from liability arising from the loss or damage suffered by the sender. As against this, the contention raised on behalf of the Government is that the protection contemplated by Section 6 is absolute as it gives exemption to the Government from any liability which would arise from every type of loss or damage whether the same has been caused by fraud or wilful neglect of an officer of the post office or otherwise. According to Shri Bhatt who appeared on behalf of the Government, liability of the post office which accepts an article under the provisions of the Act is not contractual because, the postal department is one of the departments of the Government and through that department the State discharges its sovereign functions of collecting revenue.

8. In view of these contentions the first question which arises to be determined is whether, when the postal department undertakes to carry postal articles under the provisions of the Act, it discharges the sovereign functions of the State, or undertakes any contractual obligation with regard to these articles.

9. I will first take up for my consideration the second of these two alternatives namely whether it undertakes any contractual obligation with regard to the postal articles entrusted to it for delivery to the addressee. On this question, we find some English decisions with regard to the postal law as prevalent in England from time to time. The earliest decision is that of Lane v. Cotton 91 E.R. 1332 which is a decision of the Court of King's Bench and wherein the majority of the judges took the view that there was no contract as between the sender of the postal article and the Post Master General. This decision was given under the first Post Office Act being statute 12 car. 2 C. 35 (1660). Thereafter in the region of Queen Anne, another statute was passed being 9 Anne C.ll (1710). Under this new statute Post Master General had a monopoly in the carriage of letters and packages for the Crown. The question whether there was a contractual relation between the sender of an article and the Post Master General arose in Whiifteld v. Lord Le Despencer 98 E.R, 1344 wherein Lord Mansfield made the following observations which have been quoted and followed in the subsequent English decisions and which also appear to have influenced some Indian decisions. The learned Lord said:

The postmaster has no hire, enters into no contract, carries on no merchandize or commerce. But the post-office is a branch of revenue, and a branch of police, created by an Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police, it puts the whole correspondence of be kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the Crown, and officers appointed by the Crown. There is no analogy therefore between the case of the postmaster and a common carrier. The branch of revenue and the branch of police are to be governed by different officers. The superior has the appointment of the inferior officers; but they give security to the Crown. One requisite is, that they shall take the oaths taken by all public officers; another strong guard is, that they are made subject to heavy penalties; and this is carried so far, that, what in the case of a common carrier, or any other person, would be only a breach of trust, is in them declared to be a capital felony.

These observations show that the view which is taken is that no contractual relations are established between the sender of the postal article and the postal department because, postal department discharges two functions namely (1) the function of collecting revenue and (2) the function of executing police powers of the State. The view taken by Lord Mansfield in the above referred case is thereafter consistently followed in Bainbridge and Anr. v. The Postmaster General (1906) 1 K.B. 178 and Trie as Co. Ltd. v. Post Office (1957) 2 All. E.R. 387.

10. This, therefore, is the position of the English law on the subject. We have ROW to consider how far (his view can prevail looking to the provisions of the Act. A scrutiny of the provisions of the Act makes it clear that post offices in our country perform Governmental function of supplying an essential service of public utility and do not enter into any commercial transaction with any sender. Consideration for rendering this service is not a matter of express or implied contract between the parties because 'postage' which is charged by the department is defined by Section 2(f) of the Act as meaning 'the duty chargeable for transmission by post.' The use of the expressions 'duty' and 'fees' as found in Section 8(b), 29, 30, 32 and 34, and the power which the Government possesses to frame rules relating to rates of postages from time to time, clearly show that the amount collected by the Government for rendering postal services is not collected under any express or implied contract, and that this amount is treated as a part of public revenue. Section 17 of the Act makes this point clear when it states that the postage stamps provided under Section 16 shall be deemed to be stamps issued by the Government 'for the purpose of revenue' within the meaning of Indian Penal Code.

11. Moreover, Chapter V of the Act, which provides for the conditions of transmission of postal articles contemplates wide powers to deal with the articles posted under the provisions of the Act. Sections 19, 19A and 20 contain prohibition against the transmission of certain articles. Section 20(2)(e) empowers the Government to make rules to provide for the detention and disposal of articles in course of transmission by post and Sections 23 to 26 invest the postal authorities with wide powers to detain, open, examine, intercept and destroy any postal article under certain circumstances. All these are the instances of the exercise of police powers of the State. Chapter X of the Act which provides for penalties points to the same.

12. Looking to these features of the Act it cannot be said that when the postal department accepts an article for delivery it enters into any contractual obligation.

13. Reliance was, however, placed on the decision of the Supreme Court given in Income-tax Commissioner v. P.M. Rathod Co. reported in : [1959]37ITR145(SC) . The question which arose before the Supreme Court was to determine where were the income, profits and gains received, or were deemed to be received, in a case wherein a firm of manufacturers of perfumery at Ratlam in Madhya Bharat, which was a part B State, sent its goods to its customers, in part A or C State by value payable post under the provisions of the Act. A contention was raised before the Supreme Court that in such cases the post office acted as an agent of the buyer. This contention was negatived by the Supreme Court holding that whatever be the jural relationship between the sellar and the post office in respect of carriage of goods sent by the seller under the V.P.P. system, it become an agent of the seller for the recovery of the price and if it fails to recover the price and delivers the goods it is liable in damages to the seller. In the Allahabad decision of Union of India v. Firm Ram Gopal : AIR1960All672 , this decision of the Supreme Court is treated as establishing the principle that the relationship between the sender of the postal article and the post office is contractual. For coming to this conclusion the learned Judge of the Allahabad High Court has emphasised be fact that their Lordships of the Supreme Court have approved of the decision given by Madras High Court in Mothi Rungaya Chetty v. The Secretary of State I.L.R. 28 Madras 213. With respect, I am of the opinion that the decision given by the Supreme Court in the above referred case has intentionally kept the question of the jural relationship between the seller and the post office in respect of the carriage of goods sent by the seller open. The Madras decision which is referred to by the Supreme Court no doubt refers to 'contract' between the post office and the sender, but it has mainly interpreted the proviso to Section 34 of the Act and has held that this proviso does not absolve the post office 'from the common law liability to pay damages for delivering the parcel without collecting the money in pursuance of its undertaking to do so.' The judgment in this Madras case does not contain any discussion on the question whether looking to the peculiar provisions of the Act a contractual relationship is established between the post office and the sender of postal article. Even the Supreme Court has intentionally refrained from discussing this question in the above referred case of Income-tax Commissioner v. P.M. Rathod Co. and, therefore, merely because a reference is made to the Madras decision it cannot be said that the Supreme Court has approved of the principle that the jural relationship between the seller of the postal article and the post office is contractual in character. In my opinion, therefore, the said Supreme Court's decision does not help the opponent plaintiff in its contentions that the postal department was bound by the contract of carriage with regard to the three postal packages which are damaged during the course of transit.

14. But then the question is whether the postal department exercises a sovereign power in accepting postal article for delivery to the addressee. It is obvious that a finding that no contractual relationship is established between the sender and the post office with regard to a particular postal article would not automatically establish the proposition that the acceptance of a postal article for carriage by a post office results in exercise of a sovereign power of the State. It should be noted here that if this acceptance is treated as an exercise of a sovereign power of a State then, the petitioner-defendants may not be held liable for damages resulting from such an exercise. I, however, find that an acceptance of a postal article by a post office for carriage from one place to the other can never be treated to be an exercise of a sovereign power, because, sovereign powers are those powers which cannot be lawfully exercised by anyone who is not a sovereign or a delegate of a sovereign. This principle has been enunciated in an earlier decision of the Supreme Court of Calcutta given in Peninsular and Oriental Steam Navigation Co. v. Secretary of State 5 Bom. H.C.R. App. 1 wherein Chief Justice Peacock is found to have made the following observations:

There is a great and clear distinction between acts done in the exercise of what ate usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.... Where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by sovereign, or private individual delegated by a sovereign to exercise them, no action will lie.

The Supreme Court has approved of these observations in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh : (1966)IILLJ583SC and has further observed as under:

And, naturally it follows that where an act is done, or a contract is entered into, in the exercise of powers which cannot be called sovereign powers, action will lie. That, in brief, is the decision of the Supreme Court of Calcutta in the case of the Peninsular and Oriental Steam Navigation Co.

It is thus obvious that an activity which is of a commercial nature which can be carried on by any private individual is not an activity undertaken by the State in exercise of its sovereign power even though the State prefers to keep with itself the sole monopoly to carry on that activity. The above referred decision of the Supreme Court in Kasturilal's case makes a distinction between tortious liability arising in the exercise, of the sovereign power and a similar liability arising out of that activity which is not in exercise of a sovereign power, in the following words:

Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately - based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability.: arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognised as a classic statement on this subject.

Looking to these observations it must follow that the act of acceptance of a postal article by postal department for carriage being of commercial nature cannot be treated as an exercise of sovereign power by the State, and if that is so, the Union Government can be held liable for the tortious act of its postal officials committed during the course of their duty with regard to the postal article entrusted to their care.

15. In view of these findings the postal department is not found to have entered into any contractual relationship with the sender nor has it exercised any sovereign function in accepting the suit articles for carriage from one place to the other.

16. But these findings do not finally solve the question as to what is the exact nature of the liability which the postal department incurs by accepting an article for delivery. In my opinion, looking to the provisions of the Act, the liability which the postal department accepts is a 'statutory liability' of a bailee. 1 would, therefore, presently discuss this aspect of the matter.

17. It cannot be disputed that the department undertakes to carry the article concerned from one place to another. In fact, so far as 'letters' are concerned, the Government have an exclusive privilege of conveying them as provided by Sections 4 and 5 of the Act. It is, of course, true that by accepting any article for carriage, the postal department does not become 'a common carrier' as defined by Section 2 of Carriers Act (No. 3 of 1965) because, the said definition specifically excludes the Government from its ambit. None-the-less, it cannot be denied that by virtue of the provisions of the Act itself the department assumes of the liability of a carrier. Therefore, the postal department can best be described as a 'statutory carrier' as distinguished from 'a contractual carrier.' As 'a statutory carrier' it does become a 'statutory bailee' liable to carry the goods entrusted to its care safely to their destination. It should be noted here that baihrent is not always a result of a contract between the parties. This principle is accepted by the Supreme Court in State of Gujarat v. Memon Mahomed Haji Hasam reported in A.I.R. (1967) S.C. 1855 wherein the following observations are found:

Bailment is dealt with by the Contract Act only in cases where it arises from a contract but it is not correct to say that there cannot be a bailment without an enforceable contract. As stated in 'Possession in the Common Law' by Pollock and Wright p. 163.

Bailment is a relationship sui generis and unless it is sought to increase or diminish the burdens imposed upon the bailee by the very fact of the bailment, it is not necessary to incorporate it into the law of contract and to prove a consideration.

In my opinion, therefore, the general liability which the postal department incurs in accepting an article for delivery is that of 'a statutory bailee' who is expected to take the care of a reasonable man in dealing with the said article. In ordinary course, therefore, the Government would be liable even for the acts or' tortious negligence committed by the officers of the department in relation to the articles accepted for delivery, inasmuch as these tortious acts are not referable to the discharge of sovereign function of the State.

18. It is at this point that Section 6 of the Act comes up for consideration because the question is to what extent this section exempts the 'Government from the above referred general liability. If again a reference is made to the provisions of Section 6 it will be found that in its first part it exempts the Government from any liability arising out of loss, mis-delivery, delay or damage to any postal article in course of transmission by post. It then carves out an exception in cases where such liability is 'undertaken in express terms by the Central Government. The section thereafter provides for the exemption of the officers of the post office from any liability arising out of loss etc. but, even here an exception is carved out in case of the officers who have caused loss etc. by fraud or act or default. The point to be noted is that fraud and wilful act of an officer of the post office does not earn exemption contemplated by the section.

19. Now the question is what is the extent of exemption contemplated by the first part of the section. Is it absolute in character or is it confined to loss, misdelivery, delay or damage resulting from the ordinary course of events in the legitimate discharge of the functions entrusted to the officials of the department? Can it be said that the section contemplates an exemption to the Government even in cases wherein loss, misdelivery, delay or damage is the result of some fraud or wilful act or default of some of the officials of the department? In my opinion the answer to these questions is provided by the section itself. It is significant to note that in case of the liability of the official of the post office the section makes a distinction with regard to the cases wherein loss etc. is caused by the fraud or wilful act or default of an officer. If fraud and wilful act or default cannot save an officer from liability arising from loss etc. it is difficult to comprehend how such fraud or wilful act or default can save the Government from a similar liability. In my opinion, Section 6 is intended to save the Government from the liability of a common carrier and nothing more can be read in the provisions of that section. Liability of common carrier as laid down in common law is that except where loss incurs due to act of god or that of king's enemies or due to inherent vice in goods or due to the fault of the consignor himself, the carrier is liable as an insurer for safe carriage. Section 73 of the Indian Railways Act goes still further. It expects the Railway administration to use 'reasonable fore-sight and care' in the carriage of animals or goods. It is thus obvious that liability of a common carrier is much wider because the law expects him to take that care which involves a reasonable fore-sight. What Section 6 of the Act does is to save the Government from such a liability of a common carrier. But this section cannot be construed as empowering the postal department and its officers to do whatever they like to the articles entrusted by the public to their care and then to disclaim any responsibility for loss or damage caused to these articles. Since the liability of the postal department is not that of a common carrier, no one who hands over an article to the postal authorities for carriage, can claim damages on the ground that the damage or loss in question could have been avoided had the postal authorities used reasonable fore-sight and care in dealing with it. But fraud or wilful act of an officer dealing with such article resulting in loss or damage stands altogether on a different footing because no officer of the State is expected to commit fraud or wilful act resulting in loss or damage in the discharge of his duties. A postal article is entrusted to the postal authorities for its safe carriage and delivery to the addressee, and not for its wilful damage or destruction. Therefore, when a postal official wilfully does anything which results in its loss or damage, he commits breach of statutory duty in discharge of his functions on behalf of the State. The State being his employer, it cannot avoid its responsibility or the wilful wrong done by him to the members of the public. The legislature, therefore, cannot be presumed to have intended to encourage fraud in matters which are vital to the commercial life of the nation. The words 'loss, misdelivery, delay or damage' cannot, therefore, be considered as those resulting from fraud or wilful act or default of the postal officials dealing with a postal article. All that Section 6 means is that the Government would not be liable for loss etc. which results during the course of a legitimate handling of an article by an officer of the department. It should be noted here that Chap. V of the Act empowers the postal authorities with wide powers to deal with postal articles including the power to intercept, open and destroy an article under certain specified circumstances, (vide Section 22 to Section 27 B). If, while dealing with an article under any of the provisions of this Chapter, any loss etc. occurs, that would be the result of an exercise of a legitimate function under the provisions of the Act. In such a case Section 6 of the Act saves the Government from liability arising from the loss or damage in question. To give another illustration, if an article is damaged or destroyed or delayed on account of an accidental fire, or riot, or break down of communication and transport for some reason, Section 6 can come to the help of the Government and would save the department from the liability. These are the instances of the loss, misdelivery, delay or damage resulting either en account of or inspite of the legitimate discharge of their duties by the postal officials. Section 6 contemplates exemption from the liability resulting from such loss etc. and not from the liability arising from fraud or wilful act of a postal official.

20. It is found that the view taken by the High Court of Allahabad on this point is not quite consistent. In Union of India v. Firm Ram Gopal : AIR1960All672 (Supra) Dhavan J. has taken the view similar to the one which I am taking. But in the subsequent decision in Union v. Ramji Lal : AIR1965All184 another Single Judge of the same High Court Mr. Katju J. has taken a contrary view. For the reasons stated above, I do not approve of this latter decision of Allahabad High Court.

21. A Division Bench of the Calcutta High Court has considered this point in Union of India v. Sri Narayan Agarwall : AIR1955Cal371 taking a view against the postal department. However, the reasons given in the Calcutta decision are entirely different. The decision says that loss contemplated by Section 6 of the Act does not mean pecuniary or other loss by the owner of the goods though being wrongfully deprived of the possession or enjoyment thereof but means loss by the postal department of the Government and such loss occurs whenever the department involuntarily or through inadvertence loses possession of the goods and for the time being is unable to trace them. With respect I do not propose to follow this line of reasoning because, Section 6 of the Act expressly means pecuniary or other loss to the owner of the goods and it is difficult to comprehend how the postal department which acts as a carrier of goods can suffer any loss on account of the damage or non-delivery of the article entrusted to it for the purpose of carriage. In my opinion, therefore, this Calcutta decision cannot be pressed into service for the view which I am taking.

22. This being the legal position, the question which now remains to be decided is whether on facts of this case it can be said that the damage suffered by the plaintiff is the result of any fraud or wilful act or default of any of the officials of the post office. In the beginning of this judgment I have narrated the extensive damage that the three pack/is suffered during the time these packets were in transit and in the custody of the postal department. Rule 35 which is quoted above shows that when a package contains cloth it must be packed in strong wrapper with outer covering of stout card board or cloth. It must be presumed that when the post office accepted these packages containing cloth they were packed as required by this Rule 35, because, otherwise, the post office concerned would have refused to accept the articles for carriage. Evidence led by the plaintiff has also revealed that they were properly packed. All the three packages were thereafter in the sole custody of the post office. Therefore, only the postal authorities could have the exclusive knowledge as to how these three packets were dealt with and how they were damaged. The postal authorities have, however, not cared to lead any evidence to show how this extensive damage to these packets took place. The nature of the damage described above shows very clearly that all the three packets were tampered with when they were in the custody of the postal department. This tampering, therefore, clearly suggests that the missing articles were stolen or misappropriated by somebody. If the damage was caused otherwise it was for the defendants to offer the evidence about the same. They could have shown that the damage was caused in due course of events or in discharge of a legitimate duty by a postal official. But the defendants have not cared to lead any evidence on this point and they have merely preferred to rely upon the provisions of Section 6 of the Act to absolve themselves from the liability arising from the damage. The only reasonable inference would therefore be that the damage done to the packets was the result of some wilful act or default on the part of some postal official who dealt with these articles, and if that is so, on the interpretation of Section 6 which I am making, the defendants would be liable to the plaintiff for the said damage.

In view of this, this Revision Application should fail. The decree passed by the lower court is confirmed and the rule is discharged without any order as to costs.


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