1. This Revision Petition arises out of a Small Cause Suit in which the respondent, the consignee of a bale of cotton thread entrusted for transport to the South Indian Railway Company, sued the Company for Rs. 470 damages for the loss of the said bale in transit. The bale was entrusted to the Railway Company on 2-4-1919. Nothing has been heard of it since and there can be no possible doubt that it must be treated as lost. The loss of the bale is the basis of the suit.
2. The liability of the company has to be determined with reference to a special agreement Exhibit I entered into between them and the consignor at the time of the despatch of the bale. This provides that in consideration of the carriage of the bale being at a lower rate the consignee (under whom, of course, plaintiff claims) has no right EO compensation for loss of the goods except in the event of wilful neglect of the railway administration or theft by or wilful neglect of its servants during transit. It is further provided inter alia that a robbery from a running train does not constitute wilful neglect. This question of the liability of the Railway Company has been dealt with by the Subordinate Judge in paragraphs 4 and 5 of his judgment. The issue framed is this:
Whether the bale in question was lost by theft while the train was running and whether the defendant company took the necessary steps to prevent such a risk?3. The issue seams to me to have been very badly drafted because there are really two distinct questions involved, the burden of which is not on the same side in each case. Under the terms of the agreement the burden of proving neglect on the part of the company lies on the plaintiff as explained by Kumaraswami Sastri, J., in P. Albuquerque and Sons v. S.I. Railway 1922 Mad. 231. It is open to the company to say that the bale was lost by theft while the train was running, in which case, they are, as a matter of course, exempted from liability; but the burden of proof on this point lies on the Railway Company. The issue framed by the Subordinate Judge does not cover the first point at all. He has set himself simply to consider whether the Railway Company has shown that the bale was lost by theft from a particular wagon number 1897 during transit between Perundurai and Erode. He has laid down the extraordinary proposition that even if the bale was so stolen, it will not be theft from a running train if the thief got into the wagon before the train started, a proposition which seems to me to have no foundation; and his arguments on the evidence relating to the loading of the bale in the particular wagon specified seem to me to be most inconclusive. I cannot accept the finding such as it is and must call for a specific finding from the Subordinate Judge on the following two issues:
(i) Was the suit bale lost in consequence of the wilful neglect of the Railway administration or theft by, or wilful neglect of, its servants, transport-agents or carriers?
(ii) Was it lost by robbery from a running train within the meaning of Ex. I?
4. Another point taken by the learned vakil for the petitioner relates to the question of notice. This is governed by Sections 77 and 140 of the Railways Act, IX of 1890. The former provides that a person entitled to compensation for loss of goods can only recover it if his claim has been preferred in writing by him or on his behalf, to the Railway administration within six months from the date of the delivery of the goods for carriage by rail. Section 140 of the same Act provides for the method of service of notices on the Railway administration. The effect of these two Sections has been considered by a Full Bench of this Court in Mahadeva Aiyar v. S.I. Ry. Co. 1922 Mad. 362. In the present case, the plaintiff relies on a notice, Ex. A, which was addressed to the District Traffic Superintendent on 5th September, 1919, within six months of the consignment of the bale. The question is whether those specific conditions of Sections 77 and 140 have been complied with. Here again I cannot accept the findings of the Subordinate Judge. The judgment of the Pull Bench above referred to lays down the conditions on which notice to a Subordinate Officer like the District Traffic Superintendent could be deemed sufficient compliance; and it is sufficient to say that the Subordinate Judge's judgment is entirely without reference to the conditions therein laid down. I must therefore call for a proper finding on issue (ii), 'whether the suit is barred for want of proper notice,' in view of what is contained in the Full Bench judgment above referred to.
5. The last point taken on behalf of the Company is that the suit is barred by limitation. The proper Article applicable appears to be Article 31 of the Indian Limitation Act, IX of 1908. On this point, I think the Subordinate Judge's finding must be accepted. Paragraph 7 of his judgment deals with it and ha relies on a judgment of this Court in M. & S.M. Ry. Co v. Bhimappan : (1912)23MLJ511 . I can see no ground for distinguishing that case from the present one, and it appears to be an authority for the Subordinate Judge's calculation of the time prescribed, from the date when the defendant Company finally said that the bale could not be delivered. I do not think on the question of limitation there is any ground for interference.
6. Findings on the issues referred to the Subordinate Judge must be returned within two months from this date. Either side will be at liberty to adduce fresh evidence, if they wish, on the two issues which have been referred to, in substitution of issue (1) as originally framed by the Subordinate Judge. Seven days will be allowed for filing objections.
7. [The Subordinate Judge of Mayavaram submitted the following findings:]
On the issuer 1 and 2 referred to therein, viz.,
(1) Was the suit bale lost in consequence of th9 wilful neglect of the Railway administration or theft by, or wilful neglect of its servants, transput agents or carriers?
(2) Was it lost by Robbery from a running train within the meaning of Exhibit I?
2. A bale of cotton twist was consigned by Ramaswami Chettiar at Tiruppur Station on the South Indian Railway on 2-4-1919 to Tiruvalur, the plaintiff Narayana Aiyar being the consignee. The plaintiff not having received the consignment wrote to the District Traffic Superintendent, Trichinopoly on 5th May, 1919, informing him that he had not received the bale consigned to him and asking the Superintendent to get the bale delivered to him. To this the Superintendent replied that the matter was receiving his attention (vide Exhibit B). On 29th May, 1919, the plaintiff again wrote a letter to the District Traffic Superintendent that the bale had not yet been delivered up to him and that either the bale might be delivered up to him or its value Rs. 438 might be paid to him (vide Exhibit C). The District Traffic Superintendent thereupon instructed the Station Master, Tiruvalur to ascertain from plaintiff what amount he was willing to receive in final adjustment of his claim. The Station Master, after taking a statement from the plaintiff on 30th Jane, 1919, wrote to the District Traffic Superintendent that at his stance the plaintiff was willing to accept Rs. 428 and that the said amount may be paid to the plaint)ff at an early date (vide Exs. G and G-1). The plaintiff not having received any further information wrote on 19th August, 1919, to the District Traffic Superintendent requesting him to settle his claim and informing him that on failure to do so, he would have to institute a suit (D). To this a letter has been sent from the office of the General Traffic Manager on 30th August, 1919, that the bale in question had been stolen away from a running train and as the consignment was booked at owner's risk form note H, the Company is relieved from all liability for loss and that, therefore, the plaintiff's claim could not be entertained (D-1). On 28-11-1919, the plaintiff gave a notice to the Agent, South Indian Railway, that unless the full value of the bale was paid to him within two weeks, he will sue the Company for recovering the sum with interest (E). This letter has been forwarded in original to the General Traffic Manager for disposal on 1st December, 1919, and on 12tb December, 1919, a reply to the plaintiff has been sent from the office of the General Traffic Manager, that it was reported that the bale was stolen away by some thieves from the train conveying the same while it was running between Perundurai and Erode Stations and that the Railway is not therefore liable as already intimated to the plaintiff in the letter, dated 30th August, 1919, in special view of the contract referred to therein and that the enquiry made with reference to the value of the bale was not an admission of liability on the part or the Company and that the plaintiff's claim cannot, in the circumstances, be admitted (E-1). The plaintiff has thereafter instituted his suit on 5th July, 1920.
3. The defendant has raised various pleas, The plaint contains substantially the same facts as are already set forth, and the defence is also the same as disclosed in the replies of the General Traffic Manager, The evidence of defendant's witness is to the effect that the suit bale was loaded at Tiruppur on 2nd April in B.N.R.C.G. waggon No. 1897, and that the said waggon was attached to a goods train running on the same day to Erode. My predecessor was of opinion that the evidence as to such loading is not of a reliable character. The goods clerk spoke only from his memory that it was so loaded in waggon No. 1897. The loading book in which the above particulars would have been entered has not been produced on the ground that it could not be found and further Ex. H, the railway receipt, does not also unfortunately contain the number of the waggon in which the bale was loaded: though it should properly contain such information. I am of opinion that in the circumstances, it cannot be held that the said bale had been actually loaded at Tiruppur in waggon No. 1897. The evidence therefore as to whether there was found any tampering with the seal of the waggon at Erode is of little or no importance. No doubt, there has been an attempt to show that the suit load was found missing at Erode when the waggon WBB examined. But in the absence of any record as to the waggon having been examined and to the bale having been found missing, the evidence of the defendant's witnesses cannot carry any conviction. It is not disputed that when the Railway officials had found that there was theft in one of the waggons there would be reports sent in writing to the officials higher up. This is admitted by Neelakanta Ayyar, D.W. 5. He states that in addition to this bale there were two other articles missing and that he gave a report of the loss to the District Traffic Superintendent and to the police. But no such report either from the Railway office or from the police is forthcoming. I am, therefore, of opinion that the bale was not, as a matter of fact, loaded in Tiruppur and that the evidence as to its having been loaded or to its having been found lost at Erode cannot be believed.
4. With the above facts, I
question remitted to this Court to
5. On the 1st issue.--It follows that the bale had been lost on account of the neglect of the Railway Transport Officer. The further question 13 whether the neglect could be called wilful. When the bale had been consigned by an officer of the Railway Company to by his neglect the bale is not consigned, the neglect cannot but be considered to be wilful, unless there are extenuating circumstances to prove the contrary. In such oases, where the transport has to be done by a Railway Officer, if no explanation is forthcoming as to why the bale had not been loaded, he cannot be exonerated on the ground that the plaintiff has not proved that he (the officer) had wilfully kept it back. All neglect is wilful unless there are circumstances to show that the neglect was due to accident or to circumstances over which the Railway Officer had no control. In the absence of any such extenuating circumstances. I cannot but hold that the non-loading of the bale was due to the wilful neglect of the transport agent. This conclusion is tally supported by the decision repotted in 24 Bombay Law Reporter, page 372.
6. As to the 2nd issue.--I find it in the negative as the oral evidence is untrustworthy and as the loss could have bean proved by very satisfactory documentary evidence in the possession of the Company. It must be noted that no intimation was given of any such loss to the plaintiff promptly and that the theft was suggested by the Company only on 30th August, 1919, though the bale is alleged to have been lost on 2nd April.
7. Then as regards the question whether proper notice had been given to the Company of the claim under Section 77 of the Railways Act, the Section only requires that notice should be given to the Administration. As a matter of convenience, Section 140 lays down that the notice may be given to the Agent. But it has been held by their Lordships of the Madras High Court in the Full Bench decision in 45 Madras 135, that where there have been officers deputed to whom complaints could be made and who could settle the claims, and if it is shown to have reached the responsible officer for the Railway administration, the notice would be sufficient. In the present case, it would be seen that in answer to the letter written by the plaintiff to the District Traffic Superintendent, reply is lent to the plaintiff by the General Traffic Manager for disposal. The consignment receipt Exhibit I (a), also shows that the person to whom the plaintiff should complain is the General Traffic Manager. Even in his last reply, the General Traffic Manager refers to the reply he had already sent. It therefore follows that the notice given bf the plaintiff had reached the proper officer to whom it should be sent, I accordingly hold that the notice given by the plaintiff to the District Traffic Superintendent on 19th August is a proper notice as contemplated by Section 77 of the Railways Act.
8. This petition coming on for final hearing on Thursday, the 1st day of November, 1923, the Court (Waller, J.) delivered the following: