K.C. Das Gupta, J.
1. The question in this case is whether the Government of India can escape liability to pay compensation for loss caused by non-delivery of an article it received for carriage and delivery when the article has not been lost by the Government. The Opposite Party delivered to the Darjeeling Bazar Post Office a parcel under the value payable system for delivery to one Sitaram Gupta at Happy Valley Sub-Post Office, Shillong in Assam. This was never delivered. The present suit was brought on a claim of Rs. 450/- of which Rs. 400/- was claimed as compensation for the non-delivered article and Rs. 50/- on account of costs of notices and correspondence. The defence taken was that this particular parcel was taken away by thieves along with other things from the Shillong Post Office.
The trial Court disbelieved the story of theft but also held that even if there had been theft this was due to the omission of the postal authorities to take sufficient precaution against theft. He held that the plaintiff was entitled to the sum of Rs. 400/- as compensation for the non-delivered parcel and Rs. 25/- as costs for notices and correspondence and decreed the suit for the sum of Es. 425/-.
(2) Section 6, Post Office Act provides,
'The Government shall not incur any liability by reason of the loss, mis-delivery, 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, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default.'
3. If the article had been proved to have been lost to the Government, Government would clearly escape liability by reason of such loss. The question is where the article has not been proved to have been lost to Government and yet the article has not been delivered and so loss has been incurred by the owner of the article does Section 6 protect the Government from liability?
4. The learned Assistant Government Pleader contended that 'loss' includes loss to the Government as also loss to the owner. I find it impossible to accept this contention. If an article of which one person is the owner is with another person and that other person refuses to give it to the owner it is certainly correct to say that there is loss of the article to the owner but nobody will say in such a case that the article had been lost. If the words used in the section are taken in their ordinary sense it seems to me that there is 'loss of the postal article' where it has been lost to Government and so lost also to the owner; but where it has not been lost to the Government but there has been loss to the owner, it is not right to say that there has been 'loss of postal article.'
5. It is important to notice in this connection that the Legislature thought fit to exempt Government from liability not only by reason of loss but also from liability by reason of 'mis-delivery' or 'delay of' or 'damage to' any postal article. Cases of mis-delivery or delay of or damage to the article will necessarily cause some loss to the owner. If 'loss' in the section was to mean loss to the owner whether or not it has been lost to the railway (Government?), the words 'mis-delivery, or delay of or damage to' would be redundant.
For even without these words, the exemption of liability for 'loss' of the article would have extended to the cases of 'mis-delivery or damage or delay'. The very fact that these 'words have been used shows that the Legislature had no intention that 'loss of the postal articles' would mean loss thereof to the owner. If it was the intention of the Legislature to exempt Government from liability for 'non-delivery of the postal article it would have been easy and natural for it to mention 'nondelivery' in the section in addition to 'mis-delivery'.
6. In 'East Indian Rly. Co. v. Jagpat Singh : AIR1924Cal725 , this Court had to interpret the word 'loss' under Section 72, Railways Act, which runs thus,
'The responsibility of a Railway Administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisionsof this Act, be that of a bailee under Sections 151, 152 and 161, Contract Act, 1872.'
7. The Court repelled the contention that 'loss' contemplated in the section meant loss to the owner. Page J. observed,
'Non-delivery of goods consigned to a Railway Company for conveyance may be due to the fact that the goods are being deliberately detained by the Railway Company, or that they have been mis-delivered to some person other than the consignee, or that they are 'lost'. It does not therefore necessarily follow that by proving the nondelivery of such goods the 'loss' of the goods is also proved, for the non-delivery or mis-delivery of goods may be due to 'loss', or it may be due to other causes.'
He held that 'loss' as used in Section 72 does 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 means loss of the goods by the Railway Company while in transit' and such 'loss' occurs whenever the Railway Company to which the goods have been consigned for conveyance involuntarily, or through inadvertence, loses possession of the, goods and for the time being is unable to trace them.
8. In my judgment a similar interpretation should be put on the word 'loss' in Section 6, Post Office Act and it should be held that 'loss' in this section does not mean pecuniary or other loss by the owner of the goods through 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.
9. As I have already indicated that such a defence that the goods had been actually lost to the postal department by theft was put forward and has been disbelieved. There was therefore no loss within the meaning of Section 6, Post Office Act and the Government cannot escape liability for the loss caused to the owner through non-delivery of the parcel.
10. I have come to the conclusion that the learned Court below rightly decreed the plaintiff's suit for a sum of Rs. 425/- and there is nothing that would justify our interference with the decision.
11. I would therefore discharge this Rule withcosts.
Debabrata Mookerjee, J.
13. I agree.