LexJETMOLL BHOJRAJ versus THE DARJEELING HIMALAYAN RAILWAY CO. LTD. AND OTHERS
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1951 i32 SUPREME COURT REPORTS [1003] JETMOLL BHOJRAJ v. THE DARJEELINGHIMALAYANRAILWAY CO. LTD. AND OTHERS (A. K. SARKAR, K. SUBBA RAo and J. R. MuDHOLKAR, JJ.) Railways-Suit '"' compeMation -Notice of claim- implied notice-Limitation-Dale when damage occurred-Indian 1LmitatiDn Act, 1908, (9 of 1908), Firsl Bcheduk, art1. 30, 31- Jndian Railway• Acl, 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. I. out of these bale• only 169 .reach· cd the dci•ination oil or about .June 7, 1946. As the remain- ing bales had not reached the dcitination the appellant sent a telegram on July I, 1946, to respondent No. I asking for early delivery of those bales, and also a lelter dated July 9, 1946, as follow• : "We confirm our telegram . . . . on ht 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 nc<'cssary action to cause the part consignment to reach destination immediately". The ninety bales actually anivcd at .the station, G, shortly prior to December 21, 1946, on which date the appellant wrote a letter to respondent No. I. stating that they had come to know that the consignment had 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 1 o the goods was assessed by agreement betwl'Cn the parties. As the appellant's claim was not settled he instituted a •uit for damages on April 9, 1'948. Respondent No. I pleaded that the suit must fail because (l) no notice as required bys. 77 of the Indian Railways Act, 1890, claiming compcnsathn for the damage to the ninety bales was given by the appellant to it within six month• of the delivery of the con•ignmcnt to the G. I. P. Railways and (2} the •uit was barred by limitation having been instituted more than twelve months of the date on which d;unage had ..... ,, .. ,d, ••;. ;. ' • 2 S.C.R. SUPREME cOURT REPORTS 833 Held (per Subba Rao a.nd Mudholkar, JJ., Sarkar, .J., dUisenting), (l) that the letter dated .fuly 9, 1946,. which was sent within six months of bookmg th.e consignment amount to a sufficient notice for the purposes of s. 77 of the Indian Railways Act, 1890, and that a claim for compen- sation 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 lc>ss 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 [ 1960] 2 S. C.R. 75 followed. Per Sarkar, J.-'(l) Section 77 of the Indian Railways Act, 1890, which is mandatory, requires a claim to compensat- ion 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 or not. · · (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 Act, 1908. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 402 of 1959. . Appeal from the j11dgment and deoree dated March 15, 1956 of the Calcutta. High Q,)llrt in Apt>- eal frot11 Original Decree :No. 236 of 19~9 •. 1961 Jehmdl BINfraj v. Dar'jeilU., Himal'!Jflll Rly. c •. Utl. IHI Jolllrldl •A.;"; •• •ri111in.(_ _ Himal•,a IUJ'• C.. Lli. 834 SUPREME OOURT REPORTS [1963] 0. B. Aggarwala an4 Sukumar Ghoae, for the r.
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