Jetmull Bhojraj Vs. The Darjeeling
Himalayan Railway Co. Ltd. & Ors  INSC 181 (2 May 1962)
02/05/1962 SARKAR, A.K.
CITATION: 1962 AIR 1879 1963 SCR (2) 832
R 1965 SC1755 (5) R 1969 SC 23 (9) E 1969 SC
Railways--Suit for compensation--Notice of
claim--implied notice--Limitation--Date when damage occurred--Indian Limitation
Act, 1908, (9 of 1908), First Schedule, arts. 30, 31--Indian Railways Act, 1890
(9 of 1890), s. 77.
On May 10, 1946, the appellant had consigned
259 bales of cloth from W, a station on the G. I. P. Railway, to be carried to
G, a station on the Darjeeling Himalayan Railway, respondent No. 1. out of
these bales only 169 reached the destination on or about June 7, 1946. As the
remaining bales had not reached the destination the appellant sent a telegram
on July 1, 1946, to respondent No. 1 asking for early delivery of those bales,
and also a letter dated July 9, 1946, as follows : "we confirm our telegram
.... on 1st inst .... and regret very much to inform you that we have as yet
heard nothing in response thereto nor the part ninety bales have reached
destination. Will you, therefore, please take necessary action to cause the
part consignment to reach destination immediately". The ninety bales
actually arrived at the station, G, shortly prior to December 21, 1946. on
which date the appellant wrote a letter to respondent No. 1.
stating that they had come to know that the
consignment bad arrived at G in a very damaged condition and requesting that
open delivery of the consignment be given immediately. Open delivery was given
on February 12, 1947, and the damage done lo the goods was assessed by
agreement between the parties.
As the appellant's claim was not settled. he
instituted a suit for damages on April 9, 1948. Respondent No. 1 pleaded that
the suit must fail because (1) no notice as required by s. 77 of the Indian
Railways Act, 1890, claiming compensation for the damage to the ninety bales was
given by the appellant to it within six months of the delivery of the
consignment to the G. I. P. Railways and (2) the suit was barred by limitation
having been instituted more than twelve months of the date on which damage had
occurred, 833 Held (per Subba Rao and Mudholkar, jj., Sarkar, J., dissenting),
(1) that the letter dated July 9, 1946, which was sent within six months of
booking the consignment amount to a sufficient notice for the purposes of s. 77
of the Indian Railways Act, 1890, and that a claim for compensation must also
be deemed to be implied in that letter.
Where a person says that his consignment has
not been delivered as it should have been according to the contract between him
and the railway, he must be regarded as making it clear that he would be
holding the railway, to its contractual engagement which necessarily involves
the payment of damages for breach of that engagement.
(2) That the suit was not barred by
limitation under art. 30 of the Indian Limitation Act, 1908; the burden was on
the respondent to establish that the loss or injury occurred more than one year
before the institution of the suit and that it had not been discharged by it.
Union of India v. Amar Singh  2 S. C.
R. 75 followed.
Per Sarkar, (1) Section 77 of the Indian
Railways Act, 1890, which is mandatory, requires a claim to compensation to be
preferred and a letter asking that a search for the goods be made and they be
delivered is not a compliance with that section.
(2) A claim under s. 77 has to be preferred
within the period of six months therein mentioned whether the person entitled
to the goods is then aware that the goods have been lost, destroyed or damaged
(3) In the present case, the appellant came
to know of the damaged condition of the bales on December 21, 1946 and as the
damage must have occurred prior to that date the suit which was filed on April
9, 1948 was clearly barred by limitation under art. 30 of the Indian Limitation
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 402 of 1959.
Appeal from the judgment and decree dated
March 15, 1956 of the Calcutta High Court in Appeal from Original Decree No. 236
834 C. B. Aggarwala and Sukumar Ghose, for
Rameshwar Nath, for the respondent Nos. 1 to
D. N. Mukherjee and D. Gupta, for respondent
1962. May 2. The following judgment were
delivered. The judgment of Subba Rao and Mudholkar, JJ., was delivered by
SARKAR., J.-This appeal arises out of a suit
for recovery of damages in respect of 90 bales out of 259 bales of cloth
delivered on May 10, 1946, at Wadi Bunder station on the Great Indian Peninsula
Railway, hereafter called the G. I.
P. Railway, to be carried from there to
Giellekhola a station on the Darjeeling Himalayan Railway, hereafter called the
D. H. Railway. In order to reach Giellekhola the goods had to be carried over
four railways, namely, the G.
I. P. Railway, East Indian Railway, hereafter
Called the E.I. Railway, the Bengal Assam Railway, hereafter called the B.A. Railway
and the D. H. Railway. The goods had been booked through to be carried over all
these railways. At all material times the railways other than the D. H. Railway,
were owned by the Government of India, the D. H. Railway being owned by a
private company. At some stage of the litigation the D. H. Railway Company went
into liquidation and the liquidators were brought on the record.
On June, 7, 1946, 169 bales were delivered to
the appellant to whom the Railway Receipt had been endorsed.' Various correspondence
thereafter ensued as to the remaining 90 bales with which alone the present
litigation is concerned.
About September 1946, the wagon containing
the 90 bales Was traced at a station called Gadkhali on the 835 B. A. Railway.
Further correspondence ensued and the 90 bales actually arrived at Giellekhola
shortly prior to December 21, 1946, on which date, having found the consignment
in a very damaged condition, the appellant requested the D. H. Railway to give
Thereafter on February 12, 1947 , open
delivery of the contents of the 90 bales was given to the appellant. At that
time the damage done to the goods was assessed by agreement between the
appellant, the B. A. Railway and the D. H. Railway at Rs. 27,920-13-6. The
appellant thereafter on January 29, 1948, sent a notice under s. 80 of the Code
of Civil Procedure to the Secretary of the Railway Department, Government of
India, making a demand of Rs. 34,192 for damage suffered by it as a result of
the negligence of the railways in carrying the goods. This sum was made up of
the aforesaid ,sum of Rs. 27,920-13-6 and certain other sums on account of the
difference between the ex-mill price and the retail price of the goods and of
the refund of the railway freight. A demand for a similar sum was made on the
D. H. Railway. This demand was repudiated by the railways. The appellant, therefore.
on April 9, 1948, filed the suit for damages.
The suit was decreed against the D.H. Railway
way only by the trial Court for Rs. 27,920-13-6. The D. H. Railway preferred an
appeal against the judgment of the trial Court to the High Court at Calcutta.
The appellant also filed across objection contending that the suit should have
been decreed against all the railways and the decree should have been for the full
amount claimed by it., The High Court allowed the appeal and dismissed the
cross-objection. Hence the present appeal.
It seems to me that there are two reasons why
this appeal should fail. The first is that the 836 suit was barred by
limitations This case is governed by Art.
30 of the Limitation Act which provides for a
suit against a carrier for compensation for injuring goods, a period of one
year from the date when the injury occurs. Now it seems to me that on the
evidence produced in this case and the plaint it has to be held that the damage
to the goods occurred before December 21, 1946. In the plaint the appellant
stated, "Before the receipt of those bales at Giellekhola in December 1946
it was not possible for the plaintiff to know about the aforesaid damaged
condition of those bales, but no sooner the same arrived the fact that the same
arrived in hopelessly damaged condition was brought to the notice of the
railway authorities concerned." On the same date, the appellant wrote to
the Political Officer of Sikkim for whom it had purchased the cloth, stating,
",we have been advised by our Tista Bridge agent that the consignment of
90 bales has now arrived at Giellekhola but the same has reached in a very
damaged condition." Thirdly, there is a letter written sometime prior to
January 29, 1947, by the appellant to the Political Officer of Sikkim, the
precise date of which does not appear in the record, in which it stated,
"It has been nearly one month the cloth arrived at Giellekhola in a hopeless
condition and no further step is being taken by the railway. We beg therefore
to request that steps may very kindly be taken to expedite the settlement of
the same." I think that these letters clearly establish that the damage
had occurred prior to December 21, 1946. On this part of the case, the trial
Court held that the damaged condition referred to in the correspondence
"'could only refer to the outward aspect and could in no sense refer to
the real internal damage which certainly could not be ascertained unless the
bales were opened and open delivery was given." It seems to me that the
837 trial Court overlooked the fact that it was not the ascertainment of the
damage by the appellant that is relevant for the purpose of deciding the
question of limitation. What is relevant for that purpose is the fact of the
happening of the damage. It has to be observed that this is not a case where it
is alleged that the railways fraudulently concealed the damaged condition of
The trial Court also overlooked the fact that
in the plaint the appellant made the case that the damage had occurred prior to
December, 1946. Lastly, the trial Court did not notice that in one of the
letters to which I have referred in the preceding paragraph, the appellant
expressly stated that the cloth, that is, the goods themselves' had been
damaged in December, 1946. The open delivery was demanded by the appellant only
to assess the quantum of the damage.
That appears from the appellant's letter of
December 21, 1946, to the Political Officer of Sikkim where it is stated, 'We
beg, therefore, to request you to kindly instruct the General Manager, D. H.
Railway, Kurseong, telegraphically to give open delivery of the consignment and
to give a receipt for any loss or damage." There is further nothing to
show that any damage had occurred after December 21, 1946, and February 12,
1947, when open delivery was given to the appellant. It would be idle to
contend that only the "outward aspect" of the bales had been damaged
without their contents being damaged. Then it has to be remembered that the
case made in the plaint is that the appellant came to know of the damaged
condition of the bales on December 21, 1946. If it came to know of the damage
then, the damage must have occurred before that date. The suit should,
therefore, have been filed within the period of one year of the date when the
damage occurred as provided in Art. 30 of the Limitation Act and a further
period of two months, being the time requisite for the 838 notice under s. 80
of the Code of Civil Procedure to the benefit of which the appellant was
entitled under s. 15 (2) of the Limitation Act. As the damage must have
occurred prior to December 21, 1946, the suit which was filed on April 9, 1918,
was therefore, clearly out of time.
The other reason why the appeal should fail
is that no 'notice under a. 77 of the Railways Act, 1890, had been given. That
section so far as is material is in these terms.
S. 77. A person shall not be entitled ......
to compensation for the loss., destruction or deterioration of goods delivered
to be carried, unless his claim to the compensation has been preferred in
writing by him or on his behalf to the railway administration,, within six
months 'from the date of goods for carriage the delivery of the by the railway.
The section requires a claim for compensation
for the loss, destruction or deterioration of goods to be preferred to the
railway administration within six months of the delivery of the railway for
carriage. It is well settled that the section is mandatory. If a claim is not
preferred within the time mentioned, it cannot be recovered from the railway;
a suit for such recovery must be dismissed.
Now I do not find that any claim was
preferred by the appellant on any of the railways at all within the prescribed
period. There are no doubt certain letters written by the appellant to some of
the railways including the D. H. Railway within that period but all that these
letters did was to ask that an enquiry should be made by the railway administration
to trace the missing 90 bales and that their delivery should be expedited. Not
one of them contained any claim to compensation 839 for deterioration of any
goods. A request to trace goods and expedite their delivery is certainly not a
claim to compensation in respect of them. The section requires such a claim to
be preferred. I am unable to hold that a letter asking that a search for the
goods be made and they be delivered is a compliance with s. 77. Such a letter'
would not .only not be in terms of the section nor serve the purpose of the
section. The object of the section is to prevent stale claims: see
Governor-General in Council v.
Musaddi Lal (1). Now if no claim is made
within the prescribed time, that object is not served. The letters in this case
do not expressly contain any claim against the railway Administration nor can
they be said to amount to any claim by necessary implication. The view that I
have taken appears to have been taken, by some of the High Courts. In Salem
Dayal Bagh Stores Ltd. v. The Governor General in Council (2) Happell, J.,
said, "In my opinion, Ex. P 3 cannot be regarded as a notice satisfying
the requirement of section 77. It makes no claim for compensation at all, and
is merely a letter stating that the goods bad not arrived and asking that
enquiries might be made." In Mardab Ali v. Union of India (3) it was
observed that a letter intimating that nothing was known about the goods and
requesting the railway administration to locate then was held not to satisfy s.
77. It was there observed that, "what is fatal to the argument is that in
none of these letters there is any demand for compensation. A notification of a
claim under s. 77 must of necessity contain a demand for compensation." Nocase
taking a contrary view has been brought to our notice.
But it was said that in the present case it
was impossible to prefer any claim for damages for deterioration of goods
within the period mentioned (1) (1961) 3 S.C.R. 647. (2)  1 M.L.J. 152.
(3) (1953) 56 Bom. L.R. 150.
840 in s. 77 for the appellant had no
knowledge that expired. It was therefore contended that the maxim lex non cogit
ad, impossible aut iniutlia applied and the performance of the condition
mentioned in the section should be dispensed with on account of impossibility
of such performance. Reference was made to Maxwell on Interpretation of
Statutes (10th ed.) p. 385 in support of this contention. Hence it was said
that the claim in the present suit was maintainable though no claim might have
been preferred to the railway administration as required by s. 77, The
contention proceeds on the basis of the impossibility of preferring the claim
within the time mentioned in a. 77.
But I think this is a misreading of the
section. It does seem to me that its terms can ever be impossible of
compliance. It ,requires that a claim to compensation for loss, destruction or
deterioration of goods must be preferred within six months of the date of
delivery of the goods to the railway. A claim has to be preferred within this
period whether the person entitled to the goods is then aware that the goods
have been lost, destroyed or damaged or not. If he is aware, there is, of
course, no impossibility of performance, If he is not aware, then also he must
prefer a claim for if he does not, the section. prevents him from recovering
anything later. If it were not so, the section, which contains a mandatory
provision for the protection of the railway administration, would be rendered
absolutely nugatory. Suppose the contention of the appellant was, right. Then
it might legitimately say in case of non-delivery of goods it was impossible
for it to have made claim for their loss or destruction within the period of
six months for it was not then aware that the goods had been lost. or destroyed
and would never be delivered to it. It 841 seems to me impossible that the
section intended such result. The section clearly contemplates than knowledge,
a claim must be preferred within the time mentioned in it. If this is so in the
case of loss or destruction of goods, it must equally be so in the case of
damage to goods. Want of knowledge is irrelevant and does not make it
impossible to prefer a claim. It is not as if that in the case of damage to
goods a claim for any specific sum be made. The section does not require that.
It would be enough if a claim for damages generally is preferred. So knowledge
of the damage is not essential for compliance with the terms of the section.
Indeed it seems to me that a claim for loss or destruction of goods would cover
a claim for damage to goods if they were later delivered in a damaged
condition. The greater would include the lesser.
The view that I have taken seems to me to
serve the object of the section. As I have already said the object is to
prevent stale claims. Its object, therefore, is that a claim should be made
within the time prescribed so that the railway administration might make the
necessary enquiries promptly and before the evidence concerning the claim was
lost. It is not permissible to put such an interpretation on the section as
would defeat this object and that is what would happen if the appellant's
contention was accepted.
Therefore, in my opinion, the appellant
should have preferred a claim in this case in terms of s. 77. As it had not
done so, its suit must fail.
For these reasons I would dismiss the appeal
MUDHOLKAR, J.-This is an appeal upon a
certificate granted by the High Court of Calcutta under Art. 133 (1) (a) of the
Constitution from its judgment reversing a decree for damages passed in 842
favour of the appellant firm by the Subordinate Judge., Darjeeling.
The admitted fact are briefly these. The
appellant had consigned 259 bales of cloth from Wadi-Bunder., a station on the
Great Indian Peninsular Railway (now the Central Railway) to Giellekhola, a
station on the Darjeeling Himalayan Railway (now in liquidation) on May 10,
1946. Out of these bales 169 reached the destination on or about June 7, 1946.
As the remaining bales had not reached the destination the appellant sent a
telegram on July 1,1946, to the General Manager of the D. H. Railway requesting
him to give early delivery of those bales. By a letter dated July 9, 1946, the
appellant confirmed the telegram and requested the General Manager to see that
the remaining bales reached the destination immediately. Thereafter some
correspondence followed between the appellant and the Political Officer,
Sikkim, to whom the bales were to be delivered by the appellant, and also
between the Political Officer and the D.
H. Railway administration. It is, however,,
not necessary to refer to this correspondence and to certain other
correspondence which has been referred to in the statement of the case except
to the letter dated December 21, 1946, addressed by the appellant to the D. H.
Railway stating that they have come to know that the consignment had arrived at
Giellekhola in "a very damaged condition" and requesting that open
delivery of the consignment be given immediately.
Open delivery was given to the appellant's assistant
manager, Tulsi Ram, P.W. 1, on February 12, 1947, by the Commercial inspector,
D.H. Railway. The damage was jointly assessed by the Commercial Inspector, D.
H. Railway, and the Claims Inspector, Bengal Assam Railway, at Rs. 27,920-13-6
and the assessment list was signed by them as well as by Tulsi Ram. By a letter
dated June 26, 1947, Mr. A. C.
Chatterjee, 843 Advocate, made a claim of Rs.
34,192 against the Manager of the B. A. Railway, the General Manager of the D.
H. Railway and Messrs. Gillander Arbuthnot & Co., Managing Agents for D. H.
Railway. On the same day Mr. Chatterjee sent a similar letter to the G. I. P.
Railway administration. But the Superintendent of Claims of that Administration
at Bombay repudiated the claim on the ground that it had not been preferred
within six months from the date of-booking as required by s. 77 of the Indian
Railways Act, 1890 (Act IX of 1890). It may be mentioned that the consignment
had to pass over the railway systems of G. I. P. Railway, East Indian Railway,
Bengal Assam Railway, and Darjeeling Himalayan Railway. It does not appear that
any notice was given to the E. 1. Railway. As the appellant's claim was not
settled, he instituted a suit in the court of Subordinate Judge, Darjeeling, on
April 9, 1948, To that suit the Dominion of India, presumably as representing
the G. I. P. Railway, E. 1. Railway and the B. A. Railway was made defendant
No. 1, the second defendant being the D. H. Railway.
The appellant's claim was denied by both the
Two written statements were, however, filed
by the Dominion of India, one as representing the G. I. P. Railway and the
other as representing the E. I. Railway. The only contention in these written
statements to which reference need be made is non-compliance with the
provisions of a. 77 of the Indian Railways Act.
The main contesting defendant was the D. H.
Railway. We will refer to only those contentions raised by it which bear on the
arguments advanced by it. The first of these contentions is that no notice as required
by s. 77 of the Indian Railways Act claiming' compensation for the damage to
the 90 bales was given by the appellant to it within six months of the delivery
of the consignment to 844 the G.I.P. Railway. The second contention is that the
suit was barred by limitation, having been instituted more than twelve months
of the date on which damage had occurred.
The learned Subordinate Judge dismissed the
suit in so far as the Dominion of India was concerned on the ground that no
notice under s. 77 was given to the G. I. P. Railway administration or the E.
1. Railway administration or the B. A. Railway administration. He, however,
held that the telegram dated July 1, 1946, and the letter dated July 9, 1946,
addressed to the Manager of D. H. Railway amounted to sufficient compliance
with the requirements of s. 77. He further held that the limitation for the
suit is that prescribed by Art. 30 of the 'Limitation Act. According to him a
suit instituted within one year from the date on which the loss was discovered
by the plaintiff would be within time. On this finding the learned Subordinate
Judge passed for a decree Rs. 26, 92013-6 against the second defendant and
dismissed the suit against the first defendant.
The second defendant preferred an appeal
before the High Court but shortly thereafter went into liquidation.
Thereupon the liquidators were added as
appellants. The plaintiff preferred a cross-objection with respect to that part
of his claim which was dismissed. Eventually the plaintiff amended the cross-objection
and sought a decree in the alternative against the G. I. P. Railway or the E.
The High Court allowed the appeal and
dismissed the crossobjection upon the view that the provisions of s. 77 have
not been complied with and that the suit which falls under Art. 31 of the
Limitation Act was barred by time.
845 The first question to which we address
ourselves is whether the appellant had complied with the requirements of s. 77
of the Railways Act. The relevant portion of that section reads thus:
"A person shall not be entitled to
compensation for the loss, destruction or deterioration of goods delivered to
be so carried unless his claim to 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 goods for carriage by railway." The High Courts in
India have taken the view that the object of service of notice Under this
provision is essentially to enable the railway administration to make an enquiry
and investigation as to whether the loss, destruction or deterioration was due
to the consignor's laches or to the wilful neglect of the railway
administration and its servants and further to prevent stale and possibly
dishonest claims being made when owing to delay it may be practically
impossible to trace the transaction or check the allegations made by the
Consignor. In this connection we way refer to a few of the decisions. They are
Shamsul Huq v. Secretary of State (1) Mahadeva, Ayyar v. S. I. Railway Co. (2);
Governor-General in Council v. G. S. Mills
Meghaji Hirajee & Co., v. B. N. Railway
Co. (4); Bearing in mind the object of the section it has also been made by
several High Courts that a notice under s. 77 should be liberally construed. In
our opinion that would be the proper way of construing a notice under that
section. In enacting the section the intention of the legislature must have
been to afford only a protection to the railway administration against fraud
and not (1) (1930) L.R. 57, Cal. 1286. (2) (1921) I.L.R. 45, Mad.
(3) (1449) I.L.R. 28 Pat. 178 (4) A.I.R.
1939 Nag. 141, 846 to provide a means for depriving the consignors of their
legitimate claims for compensation for the loss of or damage caused to their
consignments during the course of transit on the railways.
Bearing in mind these consideration we think
that the letter of July 9, 1946 (Ex. I (y) ) which was sent, within six months
of booking the consignment amounts to a sufficient notice for the purposes of
s. 77. The relevant portion of that letter reads thus:
"We confirm our telegram sent to you
reading as under on 1st inst. Invoice 5 tenth May, Wadi Bunder Geka part ninety
bales not reached. 'Please reach urgently" and regret very much to inform
you that we have as yet heard nothing in response thereto nor the part ninety
bales have reached destination. Will you, therefore, please take necessary
action to cause the part consignment to reach destination immediately."
This letter clearly brings to the notice of the administration that 90 bales
out of the consignment of 259 bales-had not reached their destination. More
than that by this letter the appellant requested the General Manager of the D.
H. Railway to take appropriate action without delay.
It is true that a claim for compensation has
Dot been made by the appellant in this notice. In our view however such a claim
must be deemed to be implied in the notice. The reason is obvious. Where a
person says that his consignment has not been delivered as it should have been
delivered according to the contract between him and the railway administration
he must be regarded as making it clear that he would be holding the railway
administration to its contractual engagement which necessarily involves the
payment of damages for breach of that engagement. In our opinion, therefore,
not only 847 the object underlying s. 77 is satisfied by the letter dated July
9, 1946 but also a claim for compensation is implied in that letter.
Upon the language of s.77 it would appear
that a notice there under must be given to every railway administration against
whom a suit is eventually filed. No such notice was given by the appellant to
the' G. I. P. Railway administration or the E. I. Railway administration or the
A. Railway administration within six months
of booking the consignment and, therefore, in so far as they are concerned the
suit must be held to have been rightly dismissed. That, however, would not help
the second defendant. For, so far as this defendant is concerned, as we have
already held, a notice under s. 77 was given within six months from the date of
The next question is with regard to
limitation. According to the High Court Art. 31 applies to a suit of present
The first column of Art. 31 reads thus:
"against a carrier for compensation for
non-delivery of, or delay in delivering, goods."' Column 3 reads thus:
"When the goods ought to be
delivered." According to the learned Subordinate Judge the proper article
is Art. 30, the first column of which reads thus:
"Against a carrier for compensation for
losing or injuring goods." The third column reads thus:
"When the loss or injury occurs."
It seems to us that the appropriate article would be Art. 30 and not Art. 31
because what the appellant is claiming is compensation for the damage 848 to
the goods which were eventually delivered. Even so, the question is what is the
starting point of limitation.
According to col. 3 the starting point would
be the date of the loss or injury to the goods. Now when goods are consigned by
a consignor he would not be in a position to know the precise date on which the
loss or injury has occurred.' In Union of India v. Amar Singh(1) this Court has
held that the burden would be on the railway administration who want to non-suit
the plaintiff on the ground of limitation to establish that the loss or injury
occurred more than the year before the institution of the suit. No attempt has
been made on behalf of the D. H. Railway to show that the damage in fact
occurred more than one year before the suit was instituted. All that is said on
their behalf is that the appellant knew in December, 1946, that the consignment
appeared to be damaged. In this connection reliance is placed on. Ex. B which
is a letter addressed by the appellant to the D. H. Railway on December 21,
What is stated there is that the consignment
has arrived at Giellekhole in "a very damaged condition." This has
reference to the outer covering or the package and not to the contents.
Moreover, delivery was given nearly two months after this and it is not
possible to say whether the damage which was noticed at that time had already
been caused before December 21, 1946, or was caused thereafter.
The D. H. Railway which had the custody of
the goods could alone have been in a position to say if at all, as to when the
damage, was caused. Upon the material before us it is not possible to say that
the suit was instituted beyond one year of the accrual of the cause of action.
It is, therefore, not barred by time.
There is, however, one more question which
needs to be considered and that is whether the (1)  2 S. C. R. 75, 88.
849 damage was caused on the D. H. Railway.
In their written statement they have contended that the consignment of 90 bales
was received by them at Silguri from the B. A. Railway and that it was
transhipped by them to Giellekhole in the same condition. No evidence, however,
was led by them in support of this contention. Under s. 80 of the Railway Act
it is for the consignor to establish, if he wants to sue a railway
administration other than the one which booked the consignment, that the damage
had occurred on its system.
The contention seems to us to be correct. But
where a consignor receives his consignment in a damaged condition from the delivering
railway the burden would shift to the delivering railway to show that the
damage had not occurred on its railway. The burden could be discharged by
showing that the consignment was already damaged before it was received by that
railway, Here, no evidence having been given on behalf of the D. H. Railway on
the point we hold that the presumption. has not been rebutted.
Upon this view we must allow. the appeal
against the D. H. Railway. The claim made for Rs. 5,500 odd by the appellant in
the cross-objection has not been pressed before us. We, therefore, allow the
appeal in part, set aside the decree of the High Court in so far as the D. H.
Railway is concerned and restore that of the trial court. The appellant would
be entitled to his proportionate costs against the D. H. Railway.
By COURT: In view of the majority opinion the
Court allowed the appeal in part, set aside the decree of the High Court in so
far as the D. H. Railway is concerned and restored that of the trial Court. The
appellant would be entitled to his proportionate costs against the D. H.