1. On June 9, 1945, the plaintiff appellant delivered 10 boxes containing umbrellas to the Railway Administration at Sealdah for carriage by railway to Coach Behar. The consignment was accepted by the railway administration and a Railway Receipt No. 868421, dated June 9, 1945, was issued in the name of the plaintiff. At the destination there was a shortage of 104 'umbrellas detected and the delivery of the remaining boxes was made to the plaintiff with a certificate of shortage, dated July 20, 1945.
2. Again on September 24, 1945, the plaintiff appellant delivered, in two consignments, 108 bales of piece goods to the railway administration at Sealdah for carriage by railway to Coochbehar. The consignment was accepted by the railway administration and Railway Receipt Nos. 701141 and 701142, both dated September 24, 1945, were issued in the name of the plaintiff. At the destination shortage of nine full bales and partial shortage in four bales were detected. Delivery of the two consignments was made to the plaintiff with a certificate of shortage, dated October 10, 1945.
3. According to the plaintiff he suffered a loss of Rs. 1214/- in respect of the shortage of umbrellas and a further loss of Rs. 12742/4/7, in respect of the shortage of piecegoods.
4. Under a mistake the plaintiff filed a suit for recovery of compensation against the railway administration in the Original Side of the Court. This Court, however, held that it had no jurisdiction to try the suit and in that view dismissed the plaintiff's claim. Thereafter, the plaintiff appellant filed the suit, out of which this appeal arises, in the Court of a Subordinate Judge at Alipore on August 5, 1954.
5. The trial court dismissed the suit on a three-fold ground, namely, (i) the notice under Section 77 of the Indian Railways Act had not been served on the General Manager but on the Chief Commercial Manager and as such the notice was bad, (ii) the notice under Section 80 of the Code of Civil Procedure had been served on the Secretary of the Railway Board and not on the Governor, General in Council and as such was bad, (iii) the suit was barred by limitation, the plaintiff not being entitled to the benefit of Section 14 of the Limitation Act.
6. Propriety of the decree of the trial court is being disputed in this appeal. It was contended on behalf of the appellant that in cases of non-delivery and short-delivery of goods no 'notice under Section 77 of the Indian Railways Act was required to be served. Alternatively it was argued that the service of the notice under Section 77 of the Indian Railways Act upon the Chief Commercial Manager, who was held out by the Railway Administration as authorised to deal with claims for non-delivery of goods, was good enough service. It was lastly, contended that the plaintiff was entitled to the benefits of Section 14 of the Indian Limitation Act and the suit filed, on August 5, 1954, was not barred by Limitation.
7. On the point whether in the case of non-delivery and short-delivery of goods, it is necessary to serve notice under Section 77 of the Indian Railways Act, judicial opinion is not uniform.
8. Before we refer to the chain of conflicting decisions it is necessary for us to set out Section 771 of the Indian Railways Act :
'A person shall not, be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation 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 animals or goods for carriage by railway.'
9. As far back as 1923, a Division Bench of this Court consisting of Richardson and B.B. Ghose, JJ. held in the case of Assam Bengal Railway Co. Ltd. v. Radhika Mohan Nath, 28 C. W. N. 438 : AIR 1923 Cal 397 that the word 'loss' used in Section 77 was wide enough to include all cases where goods were not forthcoming and therefore included a case of non-delivery. We set out a passage from the aforesaid judgment so as to show the line of reasoning which weighed with this court :
(a) 'I will assume that the word 'loss' in this Section means loss by the Railway Administration. The argument is that goods not delivered or short-delivered are not 'lost' and reliance was placed on the judgment of Jwala Prasad, J., in East Indian Rly. Co. v. Kali Charan Ram Prasad, AIR 1922 Pat 106 : (1922) Pat H. C. C. 145. The learned Judge referred to the distinction which appears in Articles 30 and 31 of the Schedule of the Limitation Act between claims against a carrier on the one hand for compensation of losing Or injuring goods and on the other for compensation for non-delivery of or delay in delivering goods. In the first case limitation runs from the time when the 'loss or injury occurs and in the second case from the time when the goods ought to be delivered. In my opinion, with respect, these two articles of the Limitation Act throw little, if any, light on the construction of Section 77 of the Railways Act. There may be reasons for the presence of both articles in the Limitation Act but they may still be overlapping. Where there is an agreement by a carrier to deliver goods at a fixed time or within a reasonable time a claim for goods lost may be drawn as a claim for their non-delivery.
The reasoning of the learned Judge then proceeds on the assumption--mistaken as I venture to think--that a claim for non-delivery necessarily imports that the Railway Company are consciously and deliberately with-holding goods in their possession, which they might deliver if they chose to do so.
As it seems to me, a claim for non-delivery, without, more, merely asserts that the goods were not delivered at the agreed time or within a reasonable time. Such a claim asserts nothing as to the cause of the non-delivery.'
(b) 'I have indicated that in my view, a claim for compensation for non-delivery includes the case of the goods just as much as the case of the detention of the goods. If that be so, it seems to follow that the statutory notice is, a condition precedent to a verdict being taken on that alternative footing, because on that footing the goods may have been lost.
If it be conceded, though I do not decide, that where goods are wrongfully detained by a Railway Company, no notice is necessary under, Section 77, a plea by the company of want of notice must at least be met on that ground and the Court must be asked to find that the goods were being detained and were not lost when they, ought to have been delivered.'
10. In the very next year, another Division Bench of this Court consisting of Suhrawardy and Page, JJ. took the view, in the case of East Indian Rly. Co. v. Jogpat Singh : AIR1924Cal725 , that the term 'loss' as used in risk notes and in Chapter VII of the Indian Railways Act, dealing with the responsibility of railway administration as carriers, did not mean pecuniary or other loss suffered by the owner of the goods through being wrongfully deprived of the possession, use or enjoyment thereof but meant loss of the goods by the railway administration, while in transit, and such, loss occurred whenever the railway involuntarily or through inadvertence lost possession of the goods and for the time being was unable to trace them. Their Lordships further held that non-delivery of goods consigned to a railway for conveyance might be due to the fact that the goods were being deliberately detained by the railway administration or they had been mis-delivered to some persons or that they were lost. It did not, therefore, necessarily follow that by proving the non-delivery of goods the loss of the goods was also proved.
11. Thereafter followed a long line of cases in this court which followed either of the two views.
12. The view that non-delivery or short-delivery amounted to loss and therefore a claimant for compensation in cases of non-delivery or short-delivery was bound to serve notice under Section 77 of the Indian Railways Act, was followed in East Indian Ry. Co. v. Soniram Jitmal : AIR1931Cal306 , Duni Chand v. Secy. of State : AIR1931Cal585 and Sristidhar Mandal v. Governor-General-in-Council : AIR1945Cal412 , to name some amongst the numerous cases on the point.
13. The other view that non-delivery or short-delivery did not necessarily amount to loss of goods was followed in Gopiram Behariram v. East Indian Ry., AIR 1926 Cal 612, Governor-General-in-Council v. Sarbeswar Das, AIR 1949 Cal 420, Union of India v. Meghraj : AIR1958Cal434 and Gobinda Chandra v. Union of India : AIR1960Cal571 , to name sonic of the numerous cases on the point.
14. Were We called upon to resolve the conflict, it would have been difficult for us to do sowithout referring the matter to a larger Bench.We have been, however, saved 'from this troubleby an authoritative pronouncement on the pointby the Supreme Court in the case of GovernorGeneral in Council v. Musaddi Lal : 3SCR647 . The Supreme Court has now observed that bythe expression 'loss, destruction or deterioration'what is contemplated is loss, destruction or deterioration of the goods and the Consequent loss to theowner thereof. The Supreme Court has alsoapproved of the decision in 28 Cal WN 438 : AIR1923 Cal 397 and has disapproved of the decisionsholding a contrary view. We set out below apassage from the aforesaid judgment, on which werely:
'Section 77 of the Railways Act is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by Section 72. The liability declared by Section 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or destruction of goods; it does not furnish, a cause of action on which a suit may lie against the railway administration, distinct from a pause of action for loss or destruction. By the use of the expression, 'loss, destruction or deterioration', what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner thereof. If because of negligence or inadvertence or even wrongful act on the part of the employees of the railway administration, goods, entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by Section 72 of the Railways Act.
There are undoubtedly two distinct articles, Articles 30 and 31 in the first schedule of the Indian Limitation Act dealing with limitation for suits for compensation against carriers. Article 30 prescribes the period of limitation for suits against a carrier for compensation against loss or injury to goods and Article 31 prescribes the period of limitation for suits for compensation against a carrier for non-delivery or delay in delivering the goods. The period of limitation under each of these articles is one year but the points of time from which that period is to be reckoned are different. But because the Indian 'Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either article is not for compensation for loss, destruction or deterioration of the goods. We are unable to project the provisions of Articles 30 and 31 of the Limitation Act upon Sections 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of goods does not fall within Section 77. The view we have expressed is supported by a large volume of authority in the courts in India--for instance M. and S.M. Rly. Co. Ltd. v. Haridoss Banmalidoss, ILR 41 Mad 871 : AIR 1919 Mad 140, Hill Sawyers and Co. v. Secy. of State, ILR 2 Lah 133 : AIR 1921 Lah 1 (KB), Martab All v. Union of India : AIR1954Bom297 , Union of India v. Mitayagiri Pullappa, ILR (1958) Andh-Pra 323 : AIR 1958 Andh-Pra 475, AIR 1923 Cal 397 and B.N. Rly. Co. v. Hamir Mull Chhagan Mull, ILR 5 Pat 106 : AIR 1925 Pat 727.
The view expressed to the contrary in the Allahabad High Court in Governor-General ire Council v. Mahabir Ram : AIR1952All891 (FB) and by the Patna High Court in Jais Ram Ramrekha Das v. G.I.P. Rly. Co., ILR 8 Pat 545 : AIR 1929 Pat 109, is in our judgment erroneous.
15. The legal position being as hereinbefore indicated, it has to be held that the plaintiff was liable to serve notice under Section 77 of the Indian Railways Act both for the non-delivery or short delivery of goods consigned by him and his failure to do so would be fatal to the claim. We therefore, repel the first branch of argument advanced on behalf of the appellant.
16. The second branch of argument may beshortly disposed of. There is nothing on the recordto show that the administration of the railwaysconcerned, either expressly or by implication, heldout the Chief Commercial Manager as the officerauthorised to receive the notice under Section 77 ofthe Indian Railways Act and to give relief to theplaintiff. We, therefore, repel also the secondbranch of the argument advanced on behalf of theappellant.
17. In the view already taken by us, it is not necessary for us to decide whether the plaintiff appellant's claim was also barred by limitation, although our inclination is to allow to the plaintiff-appellant the benefit of Section 14 of the Indian Limitation Act.
18. In the result this appeal fails and is dismissed without any order as to cost.
19. I agree.