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TMI Blog1957 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... count of the price of 3 sarees which were missing at the time of the delivery of the goods consigned to the plaintiff at Nandyal by a cloth merchant at Trichinopally. 3. The plaintiff's allegation was that 46 sarees were consigned by the merchant at Trichinopally and the consignment, when it was delivered, contained only 43 sarees. The claim was for compensation for shortage of delivery. The defendant Railway inter alia contended that as the plaintiff failed to give the notice as required by S. 77 of the Indian Railways Act, within six months of the delivery of the goods to the Railway he was not entitled to any compensation. Section 77 of the Indian Railways Act reads as follows: A person shall not be entitled to a refund of an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age promptly in order to enable them to enquire and investigate the matter quickly before it becomes too late to get any clue with regard to the loss or damage. The Munsif was, therefore, clearly wrong in computing the period of six months from the date when the goods were actually delivered to the plaintiff at Nandyal. The notice not being within six months of the date of the handing over to the way of the goods for despatch the suit is to be dismissed but it is contended that case of this kind where there has been delivery' no notice is required before claiming compensation. The argument is that the 'loss' occurring in S. 77 of the Act implies complete loss of the goods and not where a portion of the goods is not traceable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd S. M. Railway v. Haridoss Banmali Doss, ILR 41 Mad 871 : (AIR 1919 Mad 140) which was an appeal against the judgment Kumaraswamy Sastri, J. on the Original side. The learned Judge held that S. 77 of Railways Act could not apply to a case where the Railway with their eyes open delivered the goods to a wrong person. On appeal the Division Bench did not agree with the learned Judge. While Chief Justice Wallis was of the opinion that no distinction on should be drawn between cases in which goods have been delivered to the wrong person and cases in which they were delivered person other than the consignee and that in both cases notice under S. 77 was necessary the other learned Judge, Spencer, J. opined that notice was necessary where g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Co. v. Jetmul Bhojraj, (S) AIR 1956 Cal 390 (F), a Bench consisting of Mookerjee and Mitter, JJ. clearly laid down that loss included loss by the carrier as also loss of the owner whether for misdelivery or for non-delivery. 10. The matter came up for consideration again in Ardhanari Chettiar Co. v. Union of India, 1956-2 Mad LJ 6 : (AIR 1956 Mad 483) (G), before Krishnaswamy Naidu, J. wherein learned Judge held that the word 'loss' should be given a liberal interpretation so as to include cases of non-delivery. The learned Judge however said that the word 'loss' in S. 77 would exclude those classes of cases where there was a wilful withholding of the goods by the Railway Company. 11. The trend of decisions of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Decisions, to mean loss by the carrier and not simply loss to the owner. Those decisions were given in cases under the Carriers Act of 1830; but it has to be observed that in S. 72 (3) of the Indian Railways Act it is stated 'nothing in the common law of English or in the Carriers Act of 1865 regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a Railway Administration. Under those circumstances the word 'loss' cannot bear a restricted meaning assigned to in English cases. The Acts are not in pari materia as observed in ILR 41 Mad 871 : (AIR 1919 Mad 140) (C). The word 'loss' has to be interpreted in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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