- (1.) THIS second appeal arises out of a suit wherein the plaintiff initially claimed a certain amount for the non-delivery of goods which were entrusted to the Railways for being dispatched to him at Khekra, a Railway Station in the district of Meerut. During the pendency of the suit, a part of the consignment was delivered to the plaintiff and, therefore, he reduced his initial claim to a lower amount. The brief facts are these: On 27th December, 1961, M/s. Hindustan Steel Co. Ltd., Durgapur, booked a consignment of pig-iron from Durgapur Exchange Steel-yard, on the Eastern Railway. The destination was Khekra, a Railway Station on S. S. Light Railway in the district of Meerut. The railway receipt was sent to the plaintiff through the State Bank of India, Meerut and was handed over by the latter to the former after receiving full payment in respect of the consignment. The consignment was, however, not received till the first week of February, 1962. Notices under S. 77 of the Railways Act and S. 80, C. P. C. were served but the consignment was not delivered. The plaintiff alleged that the non-delivery was due to the carelessness, negligence and misconduct of the railway servants. A sum of Rs. 5,665.45 was claimed as costs of the goods and Rupees 2,000/- was claimed on account of the loss of profit which the plaintiff suffered as a result of the non-delivery of the goods in question. The total of the said two amounts worked to Rs. 7,665.45 but the plaintiff claimed Rs. 7,600/- only in round sum. As stated above, during the pendency of the suit, a part of the consignment was delivered to the plaintiff and, therefore, instead of the sum of Rs. 5,665.45 which had been initially claimed as costs of the goods, a sum of Rs. 2,481.44 was claimed as costs of the remaining undelivered consignment. The three defendants, in the suit were (1) Union of India (2) S. S. Light Railway Company Ltd., Saharanpur and (3) The Hindustan Steel Company Ltd., Durgapur, district Burdwan, West Bengal. The defendant No. 3 did not put in appearance and the suit proceeded ex parte against it. The other two defendants contested the suit and, inter alia, a plea was put in that the suit was bad on account of the absence of a valid notice under S. 77 of the Railways Act. Various other pleas were taken in denial of the plaintiff's claim but we are not concerned with the same in the instant appeal.
(2.) THE trial court framed the necessary issued and tried the suit. It held that the plaintiff was not entitled to claim the sum of Rs. 2,000/- as loss of profit but he was entitled to claim the sum of Rs. 2,481.44 as costs of the undelivered part of the consignment. However no decree could be passed in the suit in favour of the plaintiffs as the trial court held that the service of notice under S. 77 of the Indian Railways Act had not been proved on the General Managers of the Eastern and the Northern Railways. THE service of such a notice was, however, held to be proved in the case of S. S. Light Railway. On these findings, the suit was dismissed. THE plaintiff went up in appeal and the lower appellate court dismissed the appeal and affirmed the trial court's decree. THE plaintiff has now come up in the instant second appeal and in support thereof. I have heard Sri Rajeshwari Prasad and in opposition, Sri Gur Pratap Singh has made his submissions. THE only point involved in the appeal is whether the plaintiff's suit was rightly dismissed on the ground that no notice under S. 77 was proved to have been served on the General Managers of the Eastern and the Northern Railway. Old S. 77 of the Indian Railways Act laid down as under:- "A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be 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." By the Indian Railways (Amendment) Act, 1961 old S. 77 was replaced by new S. 78-B which lays down as under :- "78-B, Notification of claims to refunds of overcharges and to compensation for losses. A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf- (a) to the railway administration to which the animals or goods were delivered to be carried by railway, or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals, or goods for carriage by railways : Provided that any information demanded or inquiry made in writing from, or any complaint made in writing to, any of the railway administrations mentioned above by or on behalf of the person within the said period of six months regarding the non-delivery or delay in delivery of the animals or goods with particulars sufficient to identify, the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation."
(3.) THE new provision came into effect on 1st January, 1972. It has been argued on behalf of the respondents and the argument was accepted in the courts below that the consignment was admittedly booked on 27-12-1961, therefore, the contract between the parties took place on the said date and the old law namely, S.77, would govern the incidents of the said contract. On the other hand, it has been argued on behalf of the appellant that as the breach of the contract, namely, the non-delivery of the consignment, took place after 1st January, 1962 and the suit itself was filed on 22nd March, 1963, therefore, the new law namely, Section 78-B, would be applicable to the facts of the instant case. If the new law be held to be applicable, then as the notice has been admittedly held by the courts below to have been served on the S. S. Light Railway on whose line the destination station lay, therefore, there was compliance with the requirement of S. 78-B and the fact that no notice was proved to have been served on the General Managers of the Eastern and the Northern Railway was of no consequence. I may here first deal with an aspect of the matter which touches on the interpretation of the new S. 78- B. THE lower appellate court has expressed its opinion though somewhat half-heartedly that in case the destination station lies on a railway which is owned by a body which is different from the one which owns the railway at the booking station, then notice under S. 78-B should be separately sent to the owners owning the railways at different stations. In my opinion, this interpretation cannot be sustained on the language of S. 78-B. THE new provision was enacted with a view to soften and mitigate the requirement embodied in the old S. 77 whereby notices had to be sent to each Railway Administration. THE expression "Railway Administration" has been defined in S. 3 (6) of the Railways Act as follows : " "Railway administration" or "administration", in the case of a railway administered by the Government means the manager of the railway and includes the Government and in the case of a railway administered by a railway company means the railway company." The purpose of the amendment effected by the Amendment Act of 1961 was to enable the claimant to serve one notice only either on the railway administration owning the railway at the booking station or on the railway administration owning the railway on whose line the destination station lies or in case the claimant knew the place where the loss, destruction, damage or deterioration occurred, then on the railway administration which owned the railway where the loss, damage, destruction or deterioration took place. Thus the new S. 78-B gives a choice to the aggrieved person to serve noticed on any one of the three railway administrations. The lower appellate court acted in contravention of the well known rules of interpretation when it sought to put its own gloss on a provision whose language is absolutely clear and unambiguous. By the interpretation which the lower appellate court put on S. 78-B, it would be incumbent on the aggrieved person to give two notices where the ownership of the railway at the booking station and at the destination station belongs to separate owners. However, the section as it stands, does not at all advert to the question of the ownership of the railway administrations and does not say that in the case of different ownership, notices must be sent separately to each of the different owners. On a plain reading of the section, it is clear that notice has to be sent to one of the three railway administrations who may come into the picture, namely, the railway administration owning the booking station, that owning the destination station and the third one owning the railway on which loss, destruction, deterioration or damage took place. In my view, therefore, in the instant case, if it be held that the new provision contained in the new S. 78-B would be applicable then the plaintiff's suit has to be decreed inasmuch as it is the findings of both the courts below that a notice of claim was served on the S. S. Light Railway on which the destination station happened to be situated.;