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Radha Sham Basak and ors. Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.130
AppellantRadha Sham Basak and ors.
RespondentThe Secretary of State for India in Council
Cases ReferredDanmull v. British India Steam Navigation Company
Excerpt:
railways act (ix of 1890), sections 3(6), 77, 140 - notice of claim against state railway, on whom to he served--notice to government--service on collector, if sufficient--consignment of goods--non-delivery--suit by consignor for compensation--limitation act (ix of 1908), schedule i, articles 30, 31, 115. - .....with the following rule printed and published in the fare and time table of the eastern bengal state railways: reference regarding delay in transit to or loss of goods, parcels, luggage or other articles and claims for compensation and refunds should be addressed to the traffic manager, calcutta.' they also say that the said railway has no officer who is called the manager but there is one called the agent. on the 1st august 1914, they served a notice on the secretary of state through the collector of dacca demanding payment of compensation and informing him that in default of payment a suit 'would be brought after two months. this notice was, it seems, sent over by the collector to the traffic manager who wrote to the petitioners asking for details of their loss, and such details.....
Judgment:

D. Chatterjee, J.

1. The petitioners on the 23rd of March 1914 consigned two bundles of cotton-thread at the Dacca Station of the Eastern Bengal State Railway for conveyance to one Gobindo at Narsingdih. The goods did not reach the consignee and information was given to the District Traffic Superintendent on the 25th of May 1914. On the 5th of June 1914, they gave notice to the Traffic Manager of the Railway at Sealdah that if they did not get delivery within a week they would bring a suit. The petitioners say that they gave this notice in accordance with the following rule printed and published in the Fare and Time Table of the Eastern Bengal State Railways: Reference regarding delay in transit to or loss of goods, parcels, luggage or other articles and claims for compensation and refunds should be addressed to the Traffic Manager, Calcutta.' They also say that the said Railway has no officer who is called the Manager but there is one called the Agent. On the 1st August 1914, they served a notice on the Secretary of State through the Collector of Dacca demanding payment of compensation and informing him that in default of payment a suit 'would be brought after two months. This notice was, it seems, sent over by the Collector to the Traffic Manager who wrote to the petitioners asking for details of their loss, and such details were duly supplied on the 4th of October 1914. On the 23rd December 1914 and 8th January 1915, the Traffic Manager wrote to them that the matter was under enquiry. The petitioners brought a suit for recovery of the price with compensation. The defendant, the Secretary of State, pleaded: (1) that the suit was not maintainable as no notice had been given to the Agent of the Railway under Section 77 of the Railway Act, (2) that the suit was barred by Articles 30 and 31 of the 1st Schedule to the Limitation Act, (3) that no goods were in reality consigned by the plaintiffs who brought the suit in collusion with the servants of the Railway.

2. The learned Judge in the Court below held that the goods had been really consigned but must have gone astray at Dacca instead of being loaded in the proper wagon, but as no notice had been served on the Agent within six months he dismissed the suit with costs.

3. The petitioners obtained this Rule from this Court and it is urged at the hearing that the learned Judge was wrong in his decision on the question of notice.

4. Section 77 of the Railways Act provides that notice must be given to the Railway Administration within six months of the delivery of the goods for carriage by the Railway. Section 3 (6) says that ''Railway Administration' in the case of a Railway administered by Government means the Manager of the Railway and includes the Government, and in the case of a Railway administered by a Railway Company means the Railway Company. Section 140 provides that any notice required to be served on a Railway Administration may be served in the case of a Railway administered by the Government on the Manager, and in the case of a Railway administered by a Railway Company on the Agent of the Company in India.

5. It is contended by the learned Vakil for the petitioners that the service of the notice, dated the 1st of August 1914, on the Secretary of State through the Collector of Dacca was sufficient to meet the requirements of Section 77. The learned Vakil for the Secretary of State contends, that Section 140 is imperative and no notice but on the Manager is acceptable. I think Section 140 has not the effect of cutting down the connotation of the words Railway Administration as contained in Section 3 (6). It only provides for the convenience of the party aggrieved that, if he wants to serve the notice on the Manager of the State Railway or the Agent of the Railway Company, he must do so in one of the ways mentioned there. If the party chooses to give notice to the Government or the Native State or the Railway Company, there is nothing in the Act to prevent his doing so;' the latter alternative may enhance his trouble but it cannot take away his rights. I think the clause 'includes the Government' has the effect of extending the meaning of the words Railway Administration, as the said words might not mean the Government when there was a Manager. A number of cases have been relied on in this connection by either side, but I do not think that any of those cases contradicts the above view. The case of the Secretary of State v. Dip Chand Poddar 24 C. 306 is, however, the only case which had reference to a State Railway. The notice to the Collector there was beyond six months from date of delivery and, therefore, of no avail, the other notice was to the Traffic Superintendent within six months and the case was sent back for a tending whether it reached the Manager within the required time. This case, if it helps any side, seems to help the petitioners, for it was held in effect that it was not necessary to serve notice both on the Collector and the Manager for if it were the opinion of the Court that the Railway Administration meant both the Manager and the Government and notices were required to be given to both, the case would have been disposed of at once as the notice on the Collector was out of time.

6. All the other cases referred to in the argument are Railway Company oases and have hardly any bearing on the point at issue before us. Some of them, however, do indicate the opinions of the learned Judges who decided them on the point and may be referred to in this connection. The case of the Great Indian Peninsular Railway Company v. Chandra Rai 28 A. 552 p. 553 : A.W.N. (1906) 101 : 3 A. L.J. 329 held that a notice to the General Traffic Manager was not a notice to the Agent and was, therefore, insufficient. The learned Judges, however, say in one part of their judgment: the notification of a claim prescribed by Section 77 may, therefore, be given either to the Railway Administration as defined in Section 3 (6) or in any other way.' In the case of Janhi, Das v. Bengal Nagpur Railway Company 13 Ind. Cas. 509 : 16 C.W.N. 356 p. 358 : 15 C.L.J. 211 it was held that a notice to the Goods Superintendent is not a valid notice under Sections 77 and 140. Sir Lawrence Jenkins, C. J,, says in his judgment, however: the method of service permitted by this section (140) has not been followed, nor has it been shown that the claim has been otherwise preferred to the Railway Administration so as to satisfy the requirements of Section 77.' The Madras High Court also expressed a similar opinion in the case of Periannan Chetti v. South Indian Railway Company 22 M. 137. The learned Judges say: We do not think that Section 140 precludes a claimant from showing that the notice required by Section 77 did, in fact reach the Agent, within the time limited, though not in one of the modes prescribed in Section 140.' This view is in accordance with what was held in this Court in the case of Secretary of State v. Dip Chand Poddar 24 C. 306. I am aware of a note of dissent from the Madras case expressed in the case of Nadir Chand Shaha v. Wood 35 C. 194 : 12 C.W.N. 450, but that case must be read by the light of its own facts and besides the authorities quoted do not seem to support the opinion, which was expressed in terms rather too general. Furthermore that was a Company case and the point now before us was foreign to the enquiry. I think, therefore, that these cases do not support the contention of the opposite party and the notice that was served in this case upon the Government through the Collector within six months was sufficient to satisfy the requirements of Section 77. In this view of the case it is not necessary to consider whether the notice to the Traffic Manager was a valid notice i think it right to state, however, that the position taken by the learned Government Pleader in this respect also is very debatable. He says the notice ought to have been to the Manager of the Railway, but there is no officer having that designation on this Railway. Then he says the notice ought to have been served on the Agent, but the law does not require the notice to be given to the Agent in a State Railway and if a notice had actually been given to the Agent it could have been argued that it should have been given to the Manager. Then again there is no evidence that the Agent is the Manager or that the Traffic Manager is not the Manager.

7. On the other hand the Time and Fare Table of the Railway, which is presumably issued by the authority of the Railway Administration, directs the public to give notices to the Traffic Manager. I think that it is the duty of Government to throw more light on this point and inform the public that the Manager of the Railway for the purpose of serving notices is either the Traffic Manager or the Agent or somebody else.

8. The next question is that of limitation under Article 30 or 31 of the 1st Schedule to the Limitation Act. The goods were delivered to the Railway on the 23rd of March 1914 and the suit was brought on the 22nd of April 1915, about a month over one year after. Article 30 does not apply, as the plaintiff's case was not for the loss of the goods and the defendant did not plead or prove any loss. On the other hand the defendant pleaded that no goods had been delivered at all. Article 31 applies to suits against a carrier for compensation for non-delivery of or delay in delivering goods and the time for suit is one year from the time -when the goods ought to be delivered. I think this Article also has no application. In the first place this Article seems to contemplate a suit by the party who is entitled to the delivery, namely, the consignee. In the second place it would be for the Company to show when the goods ought to have been delivered that fact being presumably within its knowledge--but there is no evidence on the point: on the contrary the case of the defendant being that no goods were in reality delivered, he could hardly prove when the goods should have been delivered. Narsingdih is not a place on the same line but has to be reached after transhipment at Naraingunge, so that one cannot even by guess say that the goods should have reached within a month. Apart from this consideration, however, I think that this is a case of a breach of a written contract and Article 115 of the Schedule governs the case. It was so held in a similar case, Mohansing Chawan v. Henry Conder 7 B. 478, which was followed by Garth, C.J., and Wilson, J., in the case of Danmull v. British India Steam Navigation Company 12 C. 477. This being so the suit was not barred by limitation. The learned Judge says he would have decreed the suit for Rs. 392-15 only if it were maintainable. I would, therefore, decree the suit for Rs. 392-15 with costs. The petitioners are entitled to their costs in this Court, three gold mohurs. The Rule is accordingly made absolute.

Beachoroft, J.

9. I agree that, in view of the definition of the words Railway Administration' in Section 3 (6) of the Act, the notice under Section 77 is effective if served on the Government and that Section 140 does not mean that the Manager is the only person on whom notice can be served, but that if notice is served on the Manager, the only alternative being service on the Government, it must be served on him in the manner provided.

10. Whether the Collector is the proper person to receive notice under Section 77 on behalf of Government when notice is served on Government and not on the Manager, I express no opinion, but as the learned Government Pleader did not suggest that he was not, except in so far as he argued that under Section 140 notice must be served on the Manager alone for the purposes of this Rule, I accept the position that notice to the Collector is notice to the Government. As regards the question of limitation, it is sufficient to say that I agree that Article 30 does not apply, and that if Article 31 does there is no evidence when the goods ought to have been delivered.

11. I agree in decreeing the suit.


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