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Judgment
Satyeshwar Roy. J.
Defendant is the appellant. The respondent filed the suit for recovery of sum for short delivery of eighty quaintals seventy kilograms of rice. The suit was filed by the respondent on the allegation that 960 bags of rice was sent by the respondent''s Rohtas office to its Ranchi Office. The Total weight of it was 963 quintals and 36 Kilograms. This was sent at the railway risk rate under Railway receipt dated 4.9.1974. The price of rice was adjusted by cross entries in the books of accounts. The respondent on arrival of the consignment at Ranchi, took open delivery from 6.10.1974 to 10-10-1974, but 24 bags of rice were not delivered. It was also alleged that 48 bags were found torn and 27 bags were damaged. Total non-supply of rice was 80 quintals and 70 kilograms. Yet the appellant gave a short certificate for 52 quintals and 60 kilograms. A claim u/s 78B of the Indian Railway Act, 1890 (the Act) was filed and a notice u/s 80 of the CPC (the Code) was given. The claim was repudiated and thereafter the respondent filed the suit for recovery of the price of rice aforesaid including interest.
Written statement was filed by the appellant in which, inter-alia, it was stated that it was not maintainable as service of notice u/s 78-B of the Act was done after expiry of the period of limitation. Since the loading and unloading of the consignment (L/U consignment) was done by the consigner, the railway were not concerned about loading of 960 bags. Shortage, if any, was due to the packing condition. It was also stated that the consignment was tendered for carriage at owners risk rate.
In deciding issue No. 3, whether the notice u/s 78 B of the Act and Section 80 of the Code was valid, the court below held that both the notices u/s 78 B of the Act and Section 80 of the Code were validly served. In deciding issue No. 4, whether the suit was barred by limitation it held in negative. While deciding issue No. 5, if the plaintiff was entitled for the suit amount or to what amount, it did not accept the case of the respondent that 80 quintals 70 kilograms of rice was short supplied. This suit was decreed for the quantity shown in short certificate i.e.52 quintals 60 kilograms.
On the basis of the submissions made on behalf of the appellant, the following points arise in this appeal:
(a) Whether the claim u/s 78 B of the Act was made within the time prescribed.
(b) Whether on the facts of the case, the suit could have been decreed.
So far point No. (a) is concerned, Mr. Chatterjee, learned Counsel for the appellant with reference to Section 78B of the Act submitted that since the section provides that the claims must be preferred within six months from the date of delivery of the consignment for carriage, the respondent was required to serve the notice within six months computing from 4.9.1974 i.e. the date of delivery of consignment for carriage and as the notice was actually served on 10.3.1975, that was preferred beyond six months. The notice being bad, the suit ought to have been dismissed, Mr. Chatterjee in support of his submission that the word ''preferred'' in Section 78B means that the notice must actually be served within six months, relied in Governor General in Council Vs. Musaddi Lal, .
Mr. Prasad, learned Counsel for the respondent submitted that all that Section 78B of the Act requires is that the claim must be made within six months from the date of tender of the consignment for carriage and it is not necessary that the claim must be actually served within six months. According to him, since the notice was sent by registered post with acknowledgement due on 3.3.1975, computing the period of limitation from 4.9.1974 it was preferred within six months. Mr. Prasad in support of his submission relied in Ram Gopal Marwari and Others Vs. Bengal and North-Western Railway Co., .
6.The question, therefore, is what is meant by word ''preferred'' in Section 78B. In Musaddi Lal (supra), the consignment was delivered for carriage on 30th January, 1943. it was not delivered as the consignment could not be traced. Composite notice u/s 77 of the Act and Section 80 of the Code was served on 7th December, 1943. The question that arose in that case was whether in a case where the consignment is not delivered at all to the consigner or, whether compliance of Section 77 was a condition precedent for maintainability of suit. It is true that there is observation that the notice prescribed was not served within six months from the date of delivery for carriage and prima-facie would be barred for non-compliance of statutory condition precedent. I have underlined the words "prima facie". It cannot be held that the Supreme Court laid down that notice must be actually served within six months from the date of delivery of consignment for carriage. The question in issue was not interpretation of Section 78B of the Act I may notice that the original Section 77 corresponds to Section 78B of the Act as amended by Act of 1961.
7.It is necessary to notice Section 140 of the Act which reads as follow:
140 Service of notices on railway administration:-Any notice or other document required or authorised by this Act to be served on a railway administration may be served, in the case of a railway administered by the Government on the Manager or the chief Commercial Superintendent and in the case of a railway administered by a railway company, on the Agent in India of the railway company--
(a) by delivering the notice or other document to the Manager or the Chief commercial Superintendent or Agent, or
(b) by leaving at his Office, or
(c) by forwarding it by post in a prepaid letter addressed to the Manager or the Chief Commercial Superintendent or Agent at his Office and registered under the Indian Post Office Act, 1898.
It will thus be seen that one of the modes or serving notice on the railway administration is by forwarding it by post in prepaid letter addressed to the Manager or the Chief Commercial Superintendent or Agent at his office and registered under the Indian Post Office Act, 1898. There is no dispute that notice dated 3.3.1975 was sent by post in prepaid letter addressed to the Chief Commercial Superintendent at his Office and registered under the Indian Post Office Act, 1898. Since the Act itself provides the mode, it must be held that claim u/s 78B may be preferred by sending such claim to the Chief Commercial Superintendent under a prepaid letter and registered under the Indian Post Office Act. Further Section 142 of the Act provides for raising statutory presumption of service if letter was properly addressed and registered. If Mr. Chatterjee''s contention is to be accepted, then in order that notice is not only preferred but also served within six months after the person entitled to the consignment must serve it personally because claim posted sufficiently before expiry of sisements, may reach the address after that period. That will make both Sections 140 and 142 redundant. It must be held that when a claimant avails the statutory procedure of the Act within six months then it is sufficient compliance of Section 78B. In Union of India v. Mahadeolal Prabhu Dayal : AIR 1965 S.C. 1775: the consignment was booked on 1.2.1947 and part of the consignment was delivered on 21.12.1947. Notice u/s 77 was sent on 10.4.1948.It was held that the notice was valid.
In Gopal''s case reading Section 77 (as it stood before 1961) with Section 140, it was held that the claim preferred by posting registered letter within six months is good although the letter is received by the Agent after expiry of six months. That being the position, it must be held that although the claim was preferred on 3.3.1975, it was preferred within six months as envisaged in Section 78B of the Act In this case, it must be held that the clam was preferred within time.
So far point no (b) is concerned, the definite case of the respondent was that the consignment was booked at the railway risk rate. In the written statement it was denied and it was stated that it was booked at the owners risk rate. I may notice that except filing the written statement and cross-examining the P.Ws, no evidence either oral or documentary was adduced by the appellant. The evidence, there fore, was ex-parte. The railway receipt was marked as Ext. 1 and there was clear endorsement that it was at railway risk rate, yet the appellent went on to the extent of saying in the written statement that it was at owners risk rate. At railway risk rate a consigner is charged higher tariff than at owner risk rate. Further there is endorsement in Ext.1 that 960 bags were booked. The bags were new and single six begs. Thereafter there is endorsement "P/7 not complied with''''. Although in the written statement nothing was stated particularly about noncompliance of P/7, for the first time this submission was made by Mr. Chatterjee in this Court, I do not find that such submission was made by him in the court below. Conditions P/6 to P/12 and P/6A to P/12A are Outer Packing conditions as mentioned in General Rules of Goods Tariff. These conditions are with regard to Gunny/Hessian Bags. It provides that gunny and Hessian begs should not be wet or soiled, torn patched, resewn or repaired. The bag should have no holes. The stitches should not be slack or loose. All the loose ends of the threads used for stitching should be securely fastened; and such other things, Condition P/7 provides maximum net weight of contents, porter i.e. the number of threads calculated to inch on the wrap, short i.e. the number of thread calculated to inch on the wrap of the bag, standard size and tare weight of the bags and trade name. Neither it was stated in exhibit 1 nor any thing was stated in the written statement, what item of P/7 of the packing condition was not complied with by the respondent at the time when the bags of rice were delivered to the railway administration. In absence of any definite fact on the question of packing condition, merely stating that P/7 was not complied with was not enough for the appellant to submit that the suit should be dismissed on that ground.
It was also submitted by Mr. Chatterjee that none of the P.Ws. stated that the shortage caused to the consignment was due to the misconduct and negligence of the railway administration. In paragraph 6 of the plaint, the respondent stated that the shortage was due to the gross mis-conduct and negligence of the railway administration and its employees. It was further stated in that paragraph that the goods were booked at the railway risk. The appellant, therefore, was liable to pay the price of the rice not delivered. This was traversed by the appellant in paragraph 20 of the written statement wherein it has been stated that the allegations were not correct and denied and the respondent was required to prove the same. It was further stated that the consignment was tendered at owners risk rate and not at railway risk rate as alleged. It will thus be noticed that there was specific denial of the fact that the consignment was booked at the railway risk rate.
It was submitted by Mr. Chatterjee that notwithstanding the allegations in the plaint about misconduct and negligence, it was not the legal duty of the railway administration to disclose as to how the consignment was handled after it was booked till it reached at Ranchi. In this context Sections 73 and 76F of the Act may be noticed. The heading of Section 73 is "General responsibility of a railway administration as a carrier of animals and goods". The heading of Section 76F is "Burden of proving misconduct in case of non-delivery or pilferage in transit of goods carried at owners risk rate. Since the consignment was booked at the railway risk rate. Section 76F does not apply. Section 73 begins with the words '' ''save as otherwise provided in this Act". If there is any contrary provision in any of the Section 73 must be read along with that section. Nothing has been brought to my notice that besides Section 76F there is any provision which was required to be read along with Section 73 for the purpose of this case, Section 73 provides that the railway administration is responsible for the loss, destructions, damages, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the causes which were beyond the control of the railway administration viz act of God, act of war, act of public enemies, arrest, restraint or seizure under legal process etc. There is proviso to that section. It provides that even where such loss, destruction, or non delivery is proved to have arisen from any one or more of the afore said causes. the railway ad ministration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods''''. In other words the railway administration is required to take all care of animals or goods. Nothing has been disclosed in the written statement as to how the consignment was handled and what care the appellant took with regard to the goods. Although none of the P.Ws. have stated that the loss of part of the consignment was due to the mis-conduct and negligence of the railway administration in view of the fact that the consignment was booked at railway risk rate and the railway has neither disclosed the cause of short delivery and damage, nor disclosed what care it took in carriage of the goods contention of Mr. Chatterjee must be rejected.
In the result, this appeal is dismissed with cost quantified at Rs. 500/-.