C.M. Lodha, J.
1. This is a second appeal by the plaintiff, whose suit for recovery of Rs. 2322.44 paisa on account of short delivery of goods by the Railway was dismissed by the learned Civil Judge. Kishengarh. The plaintiff was unsuccessful in the first appeal also and consequently he has filed this second appeal from the judgment and decree of the District Judge, Aimer dated 16-3-1966.
2. The plaintiff-appellant carries on business of manufacture and sale of brass and copper wares at Madanganj-Kishengarh. It imported 2037 ineots of electrolytic copper from Canada and entrusted them to the defendant No. 2, the Trustees of the Port of Bombay (which expression will hereinafter be referred to as BPT) for transmission and delivery to the plaintiff at Kishengarh. At the time of delivery the consignment was found to be short by 26 ingots, that is only 2011 pieces were delivered. It was alleged that the short delivery was due to misconduct or negligence on the part of either the Western Railway or the BPT. After serving, a notice dated 16-12-60 on the Western Railway, a copy of which has been placed on the record and marked Ex. 1 the plaintiff filed the present suit in the Court of the Senior Civil Judge. Kishencarh for recoverv of Rs. 2322.44 paisa on account of the price of 26 copper ingots, interest etc. on 18-9-1961. It may be stated here that originally the suit was filed against the Union of India represented by the Western Railway through its General Manager alone and subsequently it was amended on 30-9-1961 so as to add BPT Railway as defendant No. 2.
3. After recording the evidence produced by the parties the learned Civil Judge, Kishengarh held that it was proved that the two wagons booked under RR in suit contained 2037 pieces of loose copper ingots weighing 457 Qtls. 9 KGms. He further found that the plaintiff had failed to prove any negligence or misconduct on the part of Western Railway, and loss, if there was any in the consignment it was at the Alexendra Railway Bombay Port Trust. Thus having absolved the Western Railway of the liability for the shortage the learned Civil Judge further found that since the plaintiff had failed to serve notice under Section 77 of the Indian Railways Act as it existed before the amendment of 1961 the suit was liable to be dismissed against the BPT also. In this view of the matter the learned Civil Judge dismissed the plaintiff's suit against both the defendants.
4. In appeal the learned District Judge. Ajmer held that there was no satisfactory evidence on the record to hold that 2037 ingots were actually loaded at the Alexendra Dock Railway Station of BPT Railway. This finding itself was sufficient for the disposal of the appeal, but the learned District Judge examined two other points also canvassed on behalf of the plaintiff and held that it was not proved that the BPT Railway was acting as an agent of the Western Railway and further that the shortage in the consignment, if any, occurred before the Western Railway took charge of the contents of the wagons for transshipment at the Sabarmati Railway Station, and, therefore the Western Railway was not responsible for the shortage. It was also held that it was obligatory for the plaintiff to have served a notice under Section 77 of the Act on the BPT Railway and since it was not done, no decree could be granted against the BPT Railway also.
5. There is no denying the fact that no notice was served on the BPT Railway within limitation prescribed by law. The learned counsel for the appellant has however urged that since BPT Railway had come to know of the short delivery by telegram Ex. A. 4 sent from Sabarmati it should be construed as a sufficient notice to the BPT Railway of the short delivery. In support of his contention learned counsel relied on Jetmull Bhojraj v. D. H. Railway AIR 1962 SC 1879. Mahadeva Ayyar v. S. I. Rly AIR 1922 Mad 362 and G. G. in Council v. Ajithbhai AIR 1952 Mad 795. In my opinion none of these authorities helps the appellant. The Supreme Court case deals only with the objects behind the provisions regarding notice and it has further laid down that it is incumbent on the claimant to serve a notice on Railway Administration whom he wishes to make liable for his claim and no railway administration on which notice has not been served under Section 77 can be made liable for payment of compensation to the claimant. The Madras cases relied upon by the learned counsel are altogether distinguishable on facts. The purport of these decisions is that there is sufficient compliance with the requirements of the provisions regarding notice, if the agent or manager has knowledge of the claim within the specified time by the subordinate officer sending notice or informing of its contents. It has not been proved in the present case that the Western Railway had informed the BPT Railway of the claim made by the plaintiff within the prescribed time. Ex. A. 4 does not pertain to the claim at all. It is only an information sent by the Western Railway from Sabarmati to the BPT Railway at Alexendra Station that the seals of the wagons were foundintact but there were only 991 ingots in one of the wagons as against the label entry of 1017 ingots, The telegram Ex. A. 4 cannot, therefore, be construed as notice.
6. Then it was argued that BPT Railway was an agent of the Western Railway and therefore no separate notice to BPT Railway was necessary. It may be pointed out that in the Goods Tariff of the Indian Railways BPT is mentioned as a separate Railway. It has neither been pleaded nor proved that BPT is acting only as an agent of the Western Railway or for the matter of that any other Railway. The mere fact that the forms of the Western Railway were used by the BPT Railway at the time of accepting the consignment in question cannot be a ground to hold that the BPT Railway is acting as the agent of the Western Railway or was an agent of the Western Railway at the time it accepted the consignment in question. In view of what has been stated above the suit against the PBT Railway must fail for want of notice and was rightly dismissed by the courts below.
7. The next important question is whether the Western Railway on whom the notice as required by Section 77 had been admittedly served can be made liable for the plaintiff's claim. The answer to this question depends upon two facts :--
(i) Whether 2037 pieces were actually loaded in the wagons at Alexendra Railway Station, and
(ii) Whether shortage of 26 ingots took place in the course of transit on the Western Railway?
On the first point the learned Civil Judge has returned an answer in favour of the plaintiff. He has held on the basis of evidence of P. W. 3 K. Laxman Vaidya, Bill Ex. 8, Forwarding Note Ex. 4. Railway Receipt Ex. 5, Bill of entry for consumption issued by the BPT Ex. 3, and the receipt issued by the Bombay Port Trust for wharfage charges Ex. 7, that 2037 pieces were actually consigned with the BPT Railway at Alexendra. The learned District Judge however held that the evidence on the point is not satisfactory. He has referred to the statement of P. W. 3 K. Laxman, the forwarding note Ex. 4, railway receipt Ex. 5 and the statement of D. W. 1 Sadashiv in the course of his discussion on this point. He has further observed that it is not clear from the statement of P. W. 3 K. Laxman that all the 2037 ingots were actually loaded in the wagons On going through the statement of P. W. 3 K. Laxman, however, I find that he had actually counted the ingots and had gotthem loaded in the wagons in his presence. He was an employee of the clearing agent of the plaintiff viz. National Transport Company. Bombay. He has further stated that 1017 ingots were loaded in one wagon and 1020 in another. He has also stated that the clerk of the BPT Railway was present at the time of loading and had also counted the pieces and had thereafter prepared two loading sheets. No doubt at one place he has stated that ingots were taken out of the steamer and since they constituted costly metal, they were placed on one side for safety. In this connection he has stated that he was not then present. The learned District Judge has misread this part of the statement of the witness when he has observed that it is not clear from his statement that all the 2037, ingots were actually loaded in the wagons. The learned District Judge has not further dealt with various documents relied upon by the learned Civil Judge. The evidence of D. W. 1 Sadashiv does not rebut the evidence of P. W. 3 K. Laxman and the inference deducible from the various documents relied upon by the learned Civil Judge. The finding of the learned District Judge on this point is therefore vitiated and in agreement with the learned Civil Judge I hold that the plaintiff has succeeded in proving that 2037 ingots of copper were actually loaded at BPT Railway Station- Alexendra.
8. The next important question therefore now is whether the shortage took place on the Western Railway? In AIR 1962 SC 1879 it was held that under Section 80 of the Railways Act, it is for the consignor to establish if he wants to sue the Railway Administration other than which booked the consignment that the damage had occurred on its system but where a consignor receives the consignment in a damaged condition from the delivering railway the burden would shift to the delivery railway to show that the damage had not occurred on its railway. The burden could be discharged by showing that the consignment was already damaged before it was received by the railway. There is no denying the fact that the shortage had been discovered at Sabarmati Railway Station vide Ex. A. 4. D. W. 4 Rajendra Prasad Sharma has stated that he was Goods Clerk at Sabarmati at the relevant time and that when the two wagons in which the goods in question were loaded were found duly sealed. It may be mentioned that this change in transhipment at Sabarmati had to be effected as the goods had to be transhipped from Broad Gauge to Meter Gauge. D. W. 5 Devi-dayal has further stated that he was the Seals' Checker at the Sabarmati Railway Station at the relevant time and that the Seals Ex. A6 to Ex. A8 were intact. He further states that 26 pieces were found less in the consignment in question and thereupon a telegram Ex. A. 4 was sent to BPT. In this connection D. W. 1 Sadashiv has stated that he was Assistant Goods Clerk at BPT Railway Station September 1960 when the goods in question were loaded; He also states that he had prepared the loading sheet, bracket label and sealed cards and also put rivets and EP Locks.
9. There is no doubt that there was short delivery of goods inasmuch as the delivery was short by 26 ingots. But it is not clear within whose jurisdiction i. e. of BPT or Western Railway loss occurred by pilferage or otherwise. In fact learned counsel far both the parties failed to show where the jurisdiction of BPT ended and that of Western Railway started. Now the position in law is that so far as the Railway Company which contracted to carry the goods partly over its own railway is concerned, it is responsible for the goods for the whole journey which may partly extend over other railway administration unless it has limited its liability by agreement, but so far as railways other than the railway who initially accepted the consignment are concerned, they would be liable only if it is proved that, the loss occurred on account of the misconduct or negligence of such railway. Section 74-D of the Railways Act as it stood before 1961 envisages a disclosure in the form of a precise statement how the consignment was dealt with by the administration followed by evidence at the trial in proof of the statement and if negligence or misconduct cannot fairly be inferred from the evidence of the railway, then the burden of proving the negligence or misconduct shifts to the consignor. In the present case no disclosure was asked for by the consignor before the fixation of the suit as to how the goods had been dealt with. From the evidence placed on the record and from the pleadings of the Western Railway it cannot be inferred that the Western Railway had been guilty of any misconduct or negligence. From the evidence examined by the defendants it is clear that after the goods had been placed in the wagons at Alexendra Railway Station they were duly sealed, locked and riveted and the seals, locks and rivets were in order when the wagons reached at Ahmedabad for transhipment to wagons over meter gauge. The plaintiff has not been able to make out case of misconduct or negligence on the part of the Western Railway nor has it been able to show that the loss occurred on the Western Railway. Consequently, the plaintiff cannot get a decree against the Western Railway either.
10. The result is that no case has been made out for interference with the judgment and decree of the Court below and the appeal is hereby dismissed. However, in the circumstances of the case, I make no order as to costs.
No other point was argued.
Learned counsel for the appellant prays for leave to appeal to Division Bench. However, I do not consider this case a fit one for grant of leave. The prayer is disallowed.