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TMI Blog1956 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant Company went into liquidation and the liquidators have been duly brought on the record. 3. A Memorandum of cross objection was filed on behalf of the plaintiff firm. From the grounds taken in the memorandum it appeared that the plaintiff intended to contend that the portion of the claim disallowed by the trial Court should not have been dismissed that the plaintiff's suit ought to have been decreed against the Dominion of India, now the Union of India as representing the State owned Railway systems. 4. After the appeal had been opened and the Respondent was called upon the attention of the Court was drawn to the fact that the court-fee paid on the memorandum of cross-objection was on a valuation of ₹ 5.585-2-6 being the balance of the claim which had been dismissed by the trial Court aS the plaintiff-cross-objector had taken grounds against the Union of India for the full amount of the claim the cross objection should have been valued on the full amount of the plaintiff's claim as in the trial Court. No objection had been raised by the office as regards the insufficiency of the Court-fee paid. The plaintiff asked for leave to put in the deficit co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1947. These 90 bales reached Geilkkhola in December 1646 the contents were found to be in a very damaged condition. The plaintiff neither had nor could have any information about the damaged condition until the goods arrived at Geillekhoia. The plaintiff demanded open delivery. On 12-2-1947 open delivery was granted and the damage was assessed by the Claims Inspector of the Bengal Assam Railway and the Commercial Inspector, Darjeeling Himalayan Railway at ₹ 27,920/- and odd. As none of the defendants admitted liability the plaintiff filed the present suit for compensation claiming in addition to the amount assessed at the time of open delivery a further sum being the difference between the ex-mill price and the retail price at the relevant time and a proportionate refund of the Railway freight. It was alleged by the plaintiff that notice under Section 80, Civil P. C., had been duly sent to the Government. 8. The Darjeeling Himalayan Railway Company Ltd., questioned the locus static of the plaintiff firm to file the suit when the consignment had been addressed to the Political Agent, Bikkira. The Political Agent was claimed to be the actual owner of the goods. It was fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en delivery disallowing the additional claims. 11. As stated already the Darjeeling Himalayan Railway Company Ltd., preferred the present appeal and a memorandum of cross-objection has been filed for the balance of the claim disallowed by the trial Court for a decree against the Union of India. 12. Although an objection had been raised in the trial Court about the locus standi of the plaintiff to file the present suit the issue had been decided in favour of the plaintiff. A faint objection was raised in this Court also but we do not think that there is any sufficient reason why the conclusion reached by the learned Subordinate Judge on this point should be modified. The reference made to the correspondence the oral evidence as adduced support the plaintiff's contention. 13. We proceed to deal with the subject-matter of the appeal on behalf of the liquidators of the Darjeeling Himalayan Railway Company Ltd. 14. It is contended that under Section 80, Railways Act no claim is sustainable against the Darjeeling Himalayan Railway Company Ltd., unless it is proved that the damages had occurred while the goods were in the custody of that railway system. 15. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular railway system as required to be proved by the plaintiff in --'Sri Gangajee Cotton Mills Co.Ltd. v. E. I. Rly. Co.' AIR1922 All 514 (P), --'Darbarimal v. Secretary of State' AIR1926 Lah 116 (G), -- 'M. S. M. Rly. v. Chinna Nagiah' AIR1946 Mad 227 (H). In --'G. I. P. Rly. v. Sham Manohar' 34 All 422 (I), no 'evidence was led to prove that the goods had come into possession of the particular railway and the loss had occurred while on that railway. The Court held that in view of the provisions of Section 80, Railways Act no decree could be passed against that railway without a finding that the loss had occurred on that railway. 21. The onus is on the plaintiff to prove that the loss had occurred while on the railway over which the goods have passed which is attempted to be made liable. 22. In our view the decree as passed against the Darjeeling Himalayan Railway Company Ltd., cannot be sustained as there is no evidence to show that the goods were damaged while the same were in transit over this railway system. 90 bales had been misdirected Co Gadkhali. For such misdirected the Darjeeling Himalayan Railway Company Ltd., could not and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient compliance with the condition imposed under Section 77 of the Railways Act. 27. Section 77 provides that a person shall, not be entitled to compensation for the loss, destruction or deterioration of goods delivered and 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. 28. On behalf of the plaintiff this objection was attempted to be met by the argument that in the special facts of this case no notice under Section 77 was required to be given or in the alternative even if such a notice was necessary the correspondence between the plaintiff and the Sikkim Durbar on the one hand and the different railways administrations on the other were sufficient to satisfy the condition. 29. We do not think that the plaintiff has been able to satisfy us that the claim for compensation was not for loss , destruction or deterioration of the goods. 30. It is not necessary for us to enter into a discussion as to what is the implication of the word loss in Section 77, whether it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. The decision of the Patna High Court in -- 'Jankidas Marwari v. Governor General of India in Council' (M), on which-strong reliance was placed on behalf of the plaintiff must be held to be a wrong decision. The Court overlooked in that case the principle that even a contracting railway cannot be held liable if it is not guilty of 'any negligence or default. 35. We may also deal shortly with the defence that the claim is barred under Articles 30 and 31, Limitation Act. The present claim is for compensation for injuring the goods and it may be taken that it is also for compensation for delay in delivering the goods, though the former appears to be the correct reading of the nature of the claim. 36. Under Article 30 a suit for compensation for injuring goods has to be brought within one year from when the loss or injury occurred. In the present case there is no proof or evidence as to whether when the injury occurred; when there is no evidence there are difficulties in determining the starting point of limitation. If we had not found that the claim of the plaintiff was otherwise barred it would have been necessary for us to consider this aspect in greater de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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