UNION OF INDIA versus MAHADEOLAL PRABHUDAYAL

Citation: [1965] 3 S.C.R. 145 · Decided: 23-02-1965 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
UNION OF INDIA 
v. 
MAHADEOLAL PRABHUDAYAL 
February 23, 1965. 
[K. N. WANCHOO, J. R. MuDHOLKAR ANDS. M. SIKRI, JJ.] 
Indian Railways Act (!f of 1890), ss. 72 and 77-Risk-note in 
Form Z-Mode of proof of liability of railway administration-
Notice under s. 77-When necessary. 
Out of a consignment of 60 bales ·of piece goods despatched by 
the Railway, under risk-note Form Z, only 29 bales were delivered 
to the respondent who was the consignee. By sending the consign-
ment thus, the consignor got a specially reduced rate but the 
burden was thrown on him, of proving misconduct on the part of 
the railway or its servants, if there was a loss of goods. The risk· 
note also imposed an obligation on the Railway, to disclose how 
the consignment was dealt with by it, during the time the consign-
ment was in its i;ossession or control. The respondent wrote a· letter 
to the Chief Commercial Manager of the Railway stating that 60 
D bales were booked but only; 29 bales had been delivered, and that 
a suit for damages would be filed. The letter was sent within 6 
months of the booking of the consignment and contained the details 
as to how the amount of damage was arrived at. Later on, a notice 
was given under s. 80 of the Civil Procedure Code, 1908, and a suit 
was filed for damages. But, before the filing of the suit, there was no 
demand by the consignor for a disclosure as to how the consignment 
E 
was dealt with by the Railway throughout the period it was in its 
possession or control. The Railway however, made a disclosure in its 
written statement as 'to how the consignment was dealt with 
throughout that period. Its defence was that, there was a theft in 
the running train and that was how part of the consignment was 
lost and not due to any misconduct on the part of the Railway or 
its eervants. l!:ven after the suit was filed and evidence let in at the 
I!' 
G 
trial, by 'the ra'.lway there was no statement by the respondent at 
any stage that the disclosure made by the Railway in the written 
statement or in the evidence, was in any way inadequate. The res-
pondent never told the court a,fter the evidence of the Railway 
was over, that he was not satisfied with the disclosure and that the 
Railway should be asked to make a further disclosure. The suit was 
dismissed by the trial court but decreed on appeal, by the High 
Court. 
In the appeal to the Supreme Court it was contended that, (i) 
the suit was barred by s. 77 of the Indian Railways Act, 1890, inas-
much as notice required therein was not given by the respondent, 
and (ii) under the terms of the risk-note the Railway was absolved 
from all responsibility for the loss of the goods consigned there-
under, from any cause whatsoever. except upon proof of miscon-
H 
duct of the Railway or its servants, that the burden of proving such 
misconduct was on the resp0ndent and th!tt the respondent had 
failed to discharge the burden. 
HELD: (i) A notice under s. 77 of the Act is necessary in the 
case of non-deHvery which arises from the loss of goods. Though 
the letter, written by the respondent to the Chief Commercial Ma-
nager, was not specifically stated to be a notice under the section it 
gave all the particulars necessary for such a notice and it was also 
given within time prescribed. Therefore, the letter was 
sufll-
cjent notice for the purpose of the Act. rl49 1)..Fl 
146 
SUPREME 
COURT 
REPORTS 
[1965] 3 s.c.R. 
Governor Genera! in Council v. Musaddi!a! [196113 _S.C.R. 647 
and Jatmu!! Bhojraj v. The Darjeeling Himalayan Railway Co. 
Ud. [19631 2 S.C.R. 832, followed. 
(ii) The view of the High Court, that there was a breach of the 
condition relating to complete disclosure, and that on such. breach 
the risk-note could be completely ignored and the responsibility of 
the Railway judged purely on the basis of s. 72(1) of the Act, as if 
the ·gceds were consigned at the ordinary rates on the Railway's 
risk, was not correct. [154 Hl 
The responsibility of the railway administration t~ disclose to 
the consignor as _to how the consignment was dealt with through-
cut th2 time it was in its possession 'Or control arises ~t once, ~nder 
the risk-note, in either of the cases referred to therein, and is not 
confined to the stage of litigation. But such disclosure is necessary 
C'nly where a cons'gnor specifically asks the railway to. make the 
disclosure. If no such disclosure is asked for, 
the admm1strat10n 
need not make it before the litigation

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