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PETITIONER: JETMULL BHOJRAJ

       Vs.

RESPONDENT: THE DARJEELING HIMALAYAN RAILWAY  CO.  LTD.  AND OTHERS

DATE OF JUDGMENT: 02/05/1962

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1962 AIR 1879            1963 SCR  (2) 832  CITATOR INFO :  R          1965 SC1755  (5)  R          1969 SC  23  (9)  E          1969 SC 817  (12)

ACT: 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.

HEADNOTE: 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,

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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 [1960] 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 or not. (3)  In  the present case, the appellant came to know of  th 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.

JUDGMENT: 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 of 1949. 834 C.   B. Aggarwala and Sukumar Ghose, for the appellant. Rameshwar Nath, for the respondent Nos.  1 to 3. D.   N. Mukherjee and D. Gupta, for respondent No. 4. 1962.   May 2. The following judgment were  delivered.   The judgment  of Subba Rao and Mudholkar, JJ., was delivered  by Mudholkar, J. 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.

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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  open   delivery. 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

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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  goods. 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

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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  com- pensation." No- case 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) [1947] 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, impossibilia 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  adminis- tration 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  pre-

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ferred  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 with costs. 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

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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  defendants. 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

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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.  1. Railway. The  High Court allowed the appeal and dismissed the  cross- objection  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 det-               erioration 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  Ltd.,  (3); 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  pro- per  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. 135. (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

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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 thereunder  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 B. 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 booking. The next question is with regard to limitation. According to the High Court Art. 31 applies to a suit of present  nature. 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

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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,  1946. 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)  [1960] 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. Railway. Appeal allowed. 850

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