P L D 1960 (W (PLP)

The learned Small Causes Court Judge held that notice under section 77 of the Railways Act was not necessary and that notice under section 80, C. P. C. has been properly given. He further held that Muhammad Amin was not a necessary party and that the defendants were not liable for non delivery. He held that the value of the consignment was Rs. 1,

068. The plaintiff's suit was dismissed.

3. It would appear from the judgment of the learned Judges that he dismissed the suit on twofold grounds, namely, that the plaintiff‑applicant had not declared the value of the goods as required under section 75 of the Railways Act, that the Station Master delivered the goods after taking an indemnity bond as required under section 57 of the Railways Act and that the Station Master acted with due care in accepting the indem nity bond.

4. After hearing Mr. Fakhruddin, the learned advocate for the applicant, on the points decided against the applicant I have come to the conclusion that this revision must be allowed.

5. In the first place, I would like to consider the question whether in the present case the learned Small Causes Court Judge was right in considering the question if any declaration in respect of the contents of the parcel was given by the applicant as required under section 75 of the Railways Act. Under section 75 of the Railways Act the Railway Administration would be respon sible for the loss, destruction or deterioration of the parcel con taining articles mentioned under the Second Schedule of the Act only, when the value of the parcel is more than 300 rupees, if the person sending the parcel had declared its contents. The learned Small Causes Court Judge was not right in raising this question on his own. Mr. Mukhtar Ahmed, the learned advocate for the opposite‑party, was unable to show me from the written statement any plea to the effect that the parcel contained articles which are mentioned in the Second Schedule of the Railways Act and the plaintiff‑applicant, having not mentioned the contents thereof, was not entitled to claim compensation for the loss. Whether pressure lamps will fall under any of the articles mentioned in the Second Schedule of the Railways Act would be a question of fact. This could be only determined on proper pleadings between the parties. There was no issue as to the application of section 75 of the Railways Act. I would hold that in the absence of any pleading that pressure lamps is one of the articles mentioned in the Second Schedule of the Railways Act, the learned Judge was wrong in holding that it was a scientific instrument. No pressure lamp has been exhibited in Court. The contention of Mr. Fakhruddin was that pressure lamps are lanterns made of tin and cannot be said to be scientific instruments. Mr. Mukhtar Ahmed, the learned advocate for the opposite‑party, contended that pressure lamp is made of glass and, therefore, would fall under the Second Schedule of the Railways Act. There is nothing before me pressure lamps are made of glass.

6. The learned Small Causes Court Judge held that the Railway Administration was quite right in delivering the pressure lamps on the execution of an indemnity bond. The learned Judge has come to a definite finding that an indemnity bond was executed by the person who received the parcel. In this connection it would be convenient to reproduce section 57 of the Railways Act which runs as under :‑ "Where any animals, goods or sale‑proceeds in the possession of a railway administration are claimed by two or more persons, or the ticket or receipt given for the animals or goods is not forthcoming, the railway administration may withhold delivery of the animals, goods or sale‑proceeds until the person entitled in its opinion to receive them has given an indemnity, to the satisfaction of the railway administration against the claims of any other person with respect to the animals, goods or sale proceeds." A perusal of the above would show that in case the receipt is not forthcoming the railway administration may deliver the parcel only on execution of an indemnity bond. I have gone through the evidence on the record and I find that no indemnity bond was executed by anyone. On behalf of the defendant opposite‑party Mr. Muhammad Moinuddin, Senior Assistant Station Master, was examined. He stated as under:‑ "Specimen of Indemnity bond Exh.

22. Surety undertakes to indemnify the Railway on non‑delivery by executing a bond on Re. 1 stamp. It is signed by witnesses. There is no indemnity bond which appears to have been executed in this case." Mr. Mukhtar Ahmed, the learned advocate for the opposite‑party, was not able to show that any indemnity bond was in fact executed by the person who took away the parcel. In these circumstances, the railway administration failed to comply with section 57 of the Railways Act. If the railway administration delivered the parcel without the production of the railway receipt or on the execution of the indemnity bond it is liable to com pensate the plaintiff‑applicant.

7. Mr. Mukhtar Ahmed, the learned advocate for the opposite‑party, contended before me that notice under section 77 of the Railways Act was necessary. There is a divergence of opinion between different High Courts on the question whether the word `loss' used in section 77 of the Railways Act includes non‑delivery. Hari Rao in his Commentary on the Railways Act Third Edition has discussed this question in paras. 12 and 13 at pages 625 to

628. The Volume of authority appears to be in favour of the interpretation that the word `loss' does not include non‑delivery. Section 77 runs 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 com pensation for 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." After considering the language of section 77 as reproduced above, I am of the view that the claim in the present case cannot be said to be based on loss as used in section

77. The word `loss' occurr ing in the section cannot be given a wider meaning so as to include also the loss that the sender of the parcel may suffer because of non‑delivery. `Loss' has a restrictive meaning under section 77 of the Railways Act. If the legislature intended that the word `loss' should be given an extensive meaning there was no need for it put comma after loss and then put the words destruction or deterioration. In destruction and deterioration also there is loss to the owner of the goods Nevertheless, these two words occur side by side with the word `loss'. It cannot be held that the words "destruction or deterioration" have been put without any sense and should not be given any added meaning. If some meaning has to be given to the words destruction or deteriora tion it must be held that where there is destruction or deterioration 1 of the goods it is not loss within the meaning of the word occurring in section

77. The word `loss' as used in the section means not loss to the owner but loss by the railway administration. If loss was attributable to the owner there was no need for the word destruction or deterioration. There is loss to the owner even when there is destruction or deterioration. The word `non‑delivery' is of general import. Non‑delivery of goods may be due to a number of causes, for example, (1) loss of the goods by the carrier due to theft ; (2) Deterioration or destruction owing to natural cause ; (3) conversion ; (4) detention of the goods by the railway authorities for some reason ; (5) mis‑delivery of the goods by honest mistake or on account of fraud ; (6) capricious act of the railway employees. I am of the opinion that where non‑delivery of goods is due to loss of goods by the railway administration or to their deteriora tion or destruction then notice under section 77 of the Railways Act is necessary, but where non‑delivery of goods is due to any other cause no such notice is necessary. In the present case there is no loss of the goods to the railway administration due to theft or robbery. It is a case of non‑delivery to the applicant.

8. For the reasons given above, I would set aside the judgment and order of the Court below and decree the suit with costs for Rs. 1,068 and interest at 6% as claimed in the plant. K. M. A. Revision accepted.