1. The plaintiff entrusted on 11-12-1943 a parcel of iron screws to the South Indian Railway, Ernakulam, and consigned it to a client at Vishakapatnam. To Vishakapatnam the parcel would have had to travel over the lines of the South Indian Railway up to Jalarpet, on the M. & S. M. Railway from Jalarpet Waltair, and on the B. N. Railway from Waltair to Vishakapatnam. The South Indian Railway were able to satisfy the plaintiff that the parcel had been safely handed over to the M. & S. M. Railway authorities, Jalarpet. In answer to interrogatories, the M. & S. M. Railway stated that they had entrusted the goods to the B. N. Railway at Waltair, but they produced no evidence in support of this, and the case proceeded on the basis that the parcel was in the custody of the M. & S. M. Railway, who are the petitioners here, at all relevant dates. After much correspondence the plaintiff sent a notice on 29-9-1945 purporting to be a suit notice addressed to the Secretary of State for India. At that time, the proper authority to whom notice should have been given was the Governor-General in-Council. It was however received by the authority empowered to receive notices addressed to the Governor-in Council and was dealt with as if it had been a notice to the Governor-General. A suit was filed against the Governor-General-in-Council on 20-3-1946, and on account of an objection raised in the written statement, a formal notice addressed to the Governor-General was given on 14-11-1946.
2. Various issues were taken in the suit, the principal ones being that no proper suit notice was given such as was required under Section 80, Civil P. C. and that the suit was barred by limitation, in that Section 77, Railways Act, requiring that a person shall prefer his claim within sis months of the loss, destruction or deterioration of his goods, has not been complied with. The issues were decided against the Governor-General-in-Council and a decree passed in favour of the plaintiff. The Governor-General-in Council or his successor-in-interest has filed this civil revision petition.
3. The question as to whether the claim lies against the M. & S. M. Railway or against the B. N Railway has not been seriously pressed here. The contention that the goods were lost after being entrusted to the B. N. Railway was mentioned in answer to certain interrogatories by the plaintiff ; but no attempt was made to prove this. The matter was not seriously pressed even in the lower Court. I hold this point against the petitioner.
4. The contention based on the requirements (of Section 80 Civil P. C., need not detain us long. Although the name of the Secretary of State was inadvertently given at the head of the notice yet it was treated by the Governor General-in-Council as a notice to him, and action was taken on the notice in the same way as if the notice bad been addressed to the Governor General-in-Council. In my opinion, this is sufficient compliance with the requirements of Section 80, because the Governor-General-in-Council was in fact given notice. The learned counsel for the Railways strongly relies upon an obiter dicta in the judgment of Leach C. J. in Governor-General in Council v. Krishnaswami Pillai. : AIR1946Mad366 . Being unnecessary for the disposal of the appeal before the learned Judges, the learned Chief Justice did not find it necessary to say very much on this head. He referred to the mandatory nature of the provisions contained in Section 60 and considered that in the case before him and his colleague a proper notice such as was required by Section 60 was not given. That case can however be distinguished from the present case on the facts, in that the notice here sent to the Secretary of State for India was accepted by the Governor-General-in-Council and treated by him as notice to himself. Moreover, the suit there was actually filed against the Secretary of State for India and not, as here, against the Governor-General-in-Council. It seems to me that notice was given to the Governor-General-in-Council, notwithstanding an error in the mattes of designation.
5. The issue regarding the effect of not making a formal claim within six months of the despatch of the goods is one that deserves more consideration, in that, as has been pointed out in several cases, the object of Section 77, Railways Act, is that the Railways should not be liable for goods that had been lost long before, on a claim made at a time when an enquiry and examination of records would not be easy, on account of lapse of time. However, we have to construe the section as it is ; and it purports to relate only to compensation for loss, destruction or deterioration of goods, and would not therefore seem to apply in cases where there was, for example, a detention by the railway. Supposing, for example, the railway administration had conducted only a very perfunctory enquiry upon the plaintiff's claim and, in fact, the goods were lying at one of their stations, could it be said that the goods had been lost In my opinion, it could not, and Section 77 would not apply to a case like that. When the plaintiff applied for compensation for goods that had not been delivered to the consignee or that had not been redelivered to him, he was not in a position to know what had happened to the goods. If the railway authorities wished to oppose his suit and have him non-suited, on the grounds that be had submitted his claim beyond six months of the date of deli-very of the goods for carriage by the railway, then it would be incumbent on them to show that his claim was beyond six months from the date of entrustment of the goods and also that the goods had been lost, destroyed, or deteriorated.
6. In the many cases that have come up before the Patna High Court from G. I. P. Rly. Co. v. Gopiram Gaurishankar, 7 Pat. 192 : : AIR1928Pat270 , onwards, there has been a clear and consistent authority that Section 77 does not apply except where the property has been lost, destroyed or deteriorated and in particular it does not apply to mere non-delivery. The Allahabad High Court seems to be of like opinion, the leading authority of that High Court on this matter being Secretary of State v Firm Daulatram Makhan Lal : AIR1937All632 . That was a case of misdelivery of steel sleepers, in which it was held that where there was misdelivery there was no loss and that Section 77 did not therefore apply. My attention has not been directed to any authority of the Allahabad High Court subsequent to this where a contrary opinion has been held. In the Assam Bengal Rly. Co., Ltd. v. Radhica Mohan Nath. 28 C. W. N. 488 : A. I. R. 1923 Cal. 397, the learned Judges were prepared to place a very wide meaning on the word 'loss' in Section 77. They seemed to dissent from a decision of Jwala Prasad J., in an earlier Patna case, East Indian Rly., Co. v. Kahcharan Ram Prasad, 69 I. C. 103 : A. I. R. 192 Pat. 106. They were inclined to hold that in any case where a person sought compensation for goods not delivered Section 77 would apply. Even there however they left open the question whether in a case where goods had been wrongly obtained by the railway authorities Section 77 would have any application. In Shamsul Hug v. Secy. of State : AIR1930Cal332 , in which on account of the wrong action of the railway authorities in detaining the goods, the goods perished, the learned Judge held that Section 77 would have no application. He specifically referred to the earlier Calcutta case quoted above, and said that in the Assam Bengal Rly., Co. v. Radhica Mohan Nath : AIR1933Cal397 , the learned Judges had clearly appreciated the distinction between loss, destruction or deterioration of goods on the one hand and detention or conversion on the other.
7. The only other case which in any way helps the petitioner is M. & S. M. Rly. Co. Ltd. v. Haridass Banmali Dass, 41 Mad. 871: A.I.R. 1919 Mad. 140, in which there was a wilful delivery of goods to a person who was not in possession of a railway receipt. It was held that such a case was covered by Section 77; and the learned Judges there, like the learned Judges in the Assam Bengal Rly. Co. Ltd. v. Radhica Mohan Nath, 28 C. W. N. 438 : A. I. R. 1923 Cal. 397, were inclined to place a very wide meaning on the word 'loss.' What was however said in that case must be read in the context as applying to the facts of that case. Where the fate of the goods is known and loss had been irretrievably caused to the consignor by delivery to a wrong person, I would have no hesitation, even I had no support from M. & S. M Rly. Co. Ltd. v. Handoss Banmalidass, 41 Mad. 871: A.I.R. 1919 Mad. 140, in saying that there was a loss to which Section 77 would have applied. I do not however find anything in that judgment which would lead me to conclude that, bad the learned Judge had to consider the possibility that the goods had been detained by the railway authorities and were still in their possession, Section 77 would have applied. We do not know in this case what happened to the goods ; but judging from the answers given in the interrogatories it would have been a simple matter for the railway authorities to have proved, if they had so minded, that the goods had been lost; if so, then the suit would have had to be dismissed. The fate of the goods was specially within the knowledge of the railway authorities. They had documents and records which would have enabled them to trace the progress of the goods from Jalarpet onwards; but they adduced no evidence of what had become of them. It seems to me that the learned Subordinate Judge was justified in holding that since the railway authorities had failed to show that the goods had been lost, he could not apply Section 77.
8. The civil revision petition is dismissed with costs.