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1953 (2) TMI 50

and M.P. Laud, Advs. JUDGMENT 1. The plaintiff sues to recover from the defendant a sum of ₹ 80,291-11-0 as compensation for loss occasioned to him by non-delivery of certain bales of cloth, consigned to Gujranwalla station by the plaintiff's agents in Bombay and delivered to the-B. B. & C. I. Railway. The defendant is the successor-in-title of the Governor-General in-Council and the B.B. & CJ. Railway has now/ vested in the defendant as its owner and administrator. 2. It is the plaintiff's case that Messrs. Murlidhar Mohanlal, the plaintiff's agents in Bombay, purchased and consigned on his behalf 85 bales-of cloth for delivery to themselves at Gujranwalla station in the Punjab. According to the plaintiff, a railway receipt bearing No. B-49 485979 dated August 4, 1947, was issued by the railway company in favour of the plaintiff's agents and the consignment was booked at railway risk except in respect of 5 put of the 85 bales. The goods-did not reach their destination as about the middle of August 1947 there were serious disturbances, and riots in the Punjab. Correspondence ensued, in the course of which the Chief Commercial. Manager of the North West .....

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jected the application. The application for adjournment was only on the ground that witnesses had to be examined on commission and for no other reasons. 5. The plaintiff examined Hector B. Gomes, the constituted attorney of Murlidhar Mohanlal, the plaintiff's agents in Bombay. Gomes produced the railway receipt and the invoice relating to the goods. He further stated that the goods were not delivered to the plaintiff at the destination. The plaintiff also examined Devraj Khanna, a munim of Murlidhar Mohanlal, who deposed to the blank endorsement made at the back of the railway receipt. According to the witness this endorsement was made in evidence of the fact that full payment of the price of the goods had been made to Murlidhar Mohanlal by the plaintiff. In his cross-examination the -witness admitted that the forwarding note which was tendered in evidence mentioned that the bulk of the goods were booked "ORZ", meaning "at owners rise in Form "Z". He admitted the signature of this note of the mukadam employed by Murlidhar Mohanlal. The risk-note in "Form Z" has not been tendered in evidence before me but the forwarding note refers to the same, .....

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e I deal with the legal arguments advanced before me I may observe that although it was admitted by the plaintiff in the plaint that he had not given notice under Section 77 Mr. H. V. Shah, learned counsel for the plaintiff, relied on certain letters (exh. D) and argued that in fact such a notice was given by the plaintiff to the railway administration. One of those letters is dated 26 November, 1947, and is addressed by the Chief Commercial Manager, Lahore, to the Chief Traffic Manager, B.B. & C.I. Railway, and others. It states that some claim dated 10 October, 1947, was made to him. There is nothing in this letter which by any stretch of imagination can be called a notice under Section 77 as required by that section read with Section 140, Railways Act. Mr. H. V. Shah also in this connection relied on another letter and a copy of a third letter which also form part of exh. D. The letter, dated 15 December, 1947, addressed by the Liaison Officer, (Textiles) Pakistan to the Chief Traffic Manager, B.B. & C.I. Railway, Bombay, states that along with that letter was enclosed a copy of a letter received from one Sayad A. M. Wazir All in connection with despatch of cloth to the .....

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the first instance, read this section in its ordinary plain sense. There appears to me nothing to modify, nothing to alter, nothing to qualify the language which the section contains. That being so the rule of literal construction must be applied and the section must be construed in the ordinary and natural meaning of the words and sentences used therein. On a plain reading of the section it clearly shows that it is incumbent on the consignor to notify to the railway administration his claim for compensation for loss, destruction or deterioration in respect of goods delivered for carriage within six months from the date of the delivery of the goods. The language used is, though in the negative form, express and explicit and the requirement of notification of the claim is mandatory. There being nothing in this section or any other cognate section of the Railways Act to qualify, alter or modify the ordinary meaning of the word "loss" as used here, the word must, in my opinion, include loss arising from whatever cause. A number of decisions were cited at the bar. The only decision of the Bombay High Court to which my attention was drawn was in a case which fell under Section .....

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the fundamental canons of construction, and as I have stated before the plain and ordinary meaning of the word "loss" in the section to my mind is that it must include loss from whatever cause, Grammatical and ordinary sense of the word can only be modified if it leads to some absurdity or inconsistency or repugnance in the context and it is not suggested that the ordinary meaning, if it were applied, would result in any inconsistency, absurdity or repugnance. In my opinion the meaning of the words "loss" and "compensation for the loss, destruction or deterioration of .....goods" used in Section 77 is quite plain and the words admit of only one meaning. 'Absoluta sententia expositore non indiget.' In such a case the plain language, as pointed out in the leading cases on the subject, best declares without more the intention of the law-giver and is decisive of it and the Court will neither add to nor subtract from what the Legislature has laid down. In such a case the Court will certainly not put a meaning on the plain words of the section which is different from the grammatical and obvious meaning, for that would be to make laws. The words &quo .....

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re on the railway of any administration other than the one on whose railway the goods were originally booked. This section obviously applies and has been held to apply to all kinds of loss, and under this section whether the cause of action is founded in contract or in tort makes no difference. I do not see any particular reason why the word "loss" should have a more restricted meaning in Section 77 than in Section 80 of the Act. The construction, therefore, of these words in one section must serve as a useful guide for their interpretation in another section. 13. I shall now turn to a decision of a Division Bench of our own High Court, - 'Balaram Hari-chand v. S. M. Rly. Co. Ltd.'. 19 Bom 159 (A), where these words which are also used in Section 75 came up for interpretation. It is true that the matter had come up before the High Court on a reference made by the Small Causes Court at Bombay for the opinion of the High Court and the judgment only contains the findings recorded by the High Court. Even so, the decision was that the words "loss", destruction or deterioration" in Section 75 included loss caused by the criminal misappropriation of the go .....

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am unable to accept the argument that the plaintiff has established from the evidence on record that there was conversion of the goods in question. The test to be applied is not merely to see whether there was failure to return the goods. It must also appear that there was an intention to keep the goods in defiance of the plaintiff, in other words detention is not conversion unless there is an adverse claim. A carrier who on demand being made states that he could not return the goods because they were looted while in his possession cannot 'ipso facto' be said to have been guilty of conversion. There must be at least some evidence of conduct of the defendant which shows that he not only possesses the goods, but also intends to hold them in defiance of the plaintiff, & to deprive the plaintiff of possession of them. I do not think the present argument advances the plaintiff's case any further. 15. Also fatal to the plaintiff's case is the bar of limitation. On behalf of the defendant reliance was placed on Articles 30 and 31 of the schedule to the Indian Limitation Act. Both these articles apply to carriers and under both, the period of limitation prescribed is on .....

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ere carried under risk-note "Z". Risk note "Z" is substantially the same as risk-note "B" and it is issued in the alternative to risk-note "B" when the consignor desires to enter into a general agreement instead of executing separate risk-notes for every consignment. That appears to be the case here. The relevant part of the risk-note "Z" is as follows: "....I/We, the undersigned, in consideration of such consignments being charged for at the special reduced or owner's risk rates, do hereby agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, all or any of such consignments from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants : provided that in the following cases: (a) Non-delivery of the whole of a consignment or of the whole of one or more packages forming part of a consignment packed in accordance with the instructions laid down in the tariff or, where there are no such instructions, prot .....

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