P L D 1981 Peshawar 92 (PLP)

(2) Whether the suit is bad for non-joinder of necessary parties ? (3) Whether the plaintiffs are estopped to bring the present suit ? (4) Whether the goods subject-matter of the present suit had sustained damage during carriage on account of negligence and carelessness of the defendants, if so, its effect ? (5) What is the extent of damage sustained by the goods subject-matter of the suit ? (6) Whether the plaintiff is entitled to the decree prayed for ? (7) Relief.

3. After recording the evidence of the parties as they wished to produce the learned trial Judge decided all the issues in favour of the plaintiff but however, allowed only 10 % (ten per cent.) of the value of the cloth as profit and incidental charges with the result that a decree in the amount of Rs. 40,706.13 (Forty thousand, seven hundred and six, Paisas thirteen) with costs was passed in favour of the plaintiff.

4. In the outset it is worth mentioning that certain facts are not disputed by both the sides. It is admitted that in all twenty bale including the four damaged bales were booked at Hernai to be delivered to the plaintiff f irm ; that these reached at Railway Station, Peshawar Cantt. on 31-10-1973 and its delivery taken on 1-11-1973 by Mohammad Gul (P, W. 3) a labourer (Pandi) employed for the purpose of carriage by the plaintiff and that the four bales out of the entire lot were damaged having been besmeared with oily substance. However, the learned Advocate-General appearing for the appellants vehemently disputed that the bales got damaged while in custody of the defendant-appellants during carriage and that in any way no notice was given to the Station Master of Railway Station Peshawar Cantt before delivery and removal of the bales as required by rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules, therefore, the defendant-appellants cannot be held responsible for the damage. As such he challenged the finding of the trial Judge on issues 1, 4, 6 and 7 only. All these issues being inter-connected, will be dealt with together hereafter.

5. It is in the evidence that the four damaged bales alongwith sixteen others were on 13-10-73 booked by Messrs Hernai Woollen Mills Limited Hernai with the Railway Authorities to be carried and delivered to the plaintiff-firm at Peshawar and in normal course of time these should have reached Peshawar within a week's time but instead reached there on 31-10-1973 on the 19th day. It is in the evidence of Jamiullah (D. W. 2) Despatch Clerk Railway Station Peshawar C ntt. that the goods on its way from Hernai to Peshawar are unloaded at Rohri and Lahore as these are trans shipment stations. The most important evidence in the case is that of Mr. Attaullah Malik (D. W. 3) Parcel Delivery Clerk examined by the defendant appellants. He deposed that the twenty bales were received on 31-10-1973 and they were delivered to Mohammad Gul (P. W. 3), the labourer of the plaintiff-firm on 1-11-1973. When Mohammad Gul received the delivery of the bales he informed him at that very time that the bales would be shown to the owners as some of the bales were oil-stained and if these were found damaged he would bring back the damaged bales ; that he was informed by the Reservation Supervisor that the plaintiff-firm was going to return some of the bales which were found damaged but before the goods were brought he had closed the office as the office time was over and that the plaintiff-firm then approached the Station Master and handed over the damaged bales to him. This witness further admitted in the cross-examin ation that except acids all the other Petroleum products are placed in ~he parcel vans alongwith other goods and from Hernai to Peshawar the goods are transhipped at three or four stations. Muhammad Gul (P. W. 3) the labourer, who took the delivery on behalf of the plaintiff-firm stated that on 1-11-73 he presented the R. Rs. and took the delivery of the goods and carried it in 'Rera' to the premises of the firm where he unloaded the same. On checking. Muhammad Irshad, salesman of the plaintiff-firm detected four bales to be stained with oil. One of the bales was opened and its contents were found badly besmeared with oil. All the four bales were reloaded in the 'Rera' and taken to the Railway Station and handed over to defendant No. 4, the Station Master. The Station Master and the official of the Parcel office were shown the contents of the open bale and three other oil-stained bales, who retained the same. Mian Mohammad Afzal (P. W. 2) one of the owners of the firm and Mohammad Irshad (P. W. 4) the salesman of the plaintiff firm in material particulars supported the version giver) by Mohammad Gul the labourer, who took the delivery of bales from the Railway Station Peshawar Cantt. All this leaves one in no manner of doubt that the four bales got damaged during carriage. Section 7 of the Railways Act IX of 1890 provides that the responsibility of the Railway administration for the goods delivered to it for carriage would be that of a bailee under sections 151, 152 and 161 of the Contract Act IX o 1872. Section 76 of the Railways Act further lays down that in a suit against Railway administration for the loss, destruction or deterioration of goods delivered to it for carriage, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused, There is not an iota of evidence from the side of the defendant-appellants in support of their stand that the bales were delivered in perfect condition to the plaintiff. On the contrary, their own witness Attaullah Malik (D. W.3) Parcel Delivery Clerk, the concerned official in an unequivocal manner deposed at the trial that when Mohammad Gul (P. W. 3) the labourer was taking the delivery of the bales be informed him that some of the bales were oil stained.

6. In support of his contention much reliance has been placed by the learned Advocate-General on rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules in that without its compliance the Railway Authorities cannot be held responsible for the damage to the bales in dispute. It is admitted by both sides that no notice as required by rule 1.34 referred to above was given in writing to the Station Master before the removal of bales from Railway premises. To solve the controversy it will be advantageous to reproduce rule 1.34 which reads :-- 1-34.-Written notice of loss or damage.-Railway will not be responsible for any damage to or loss of property unless notice of such is given in writing to the Station Master before delivery and removal from the railway premises of the property or of the package or packages, the contents or parts of the contents of which are alleged by the claimant to be damaged or lost, or of the rest of the consignment, a portion of which is alleged by the claimant to be lost, as the case may be. A written statement of the nature of the damage received or of the articles missing, must be sent to the Vice- Chairman (Commercial), Railway Headquarters Office, Lahore or the Divisional Superintendent, Karachi, in the case of station on that division.

7. According to the leaned counsel rule 1.34 of the Pakistan Western Railway Coaching Tariff Rules has been framed under section 54 of the Railways Aft. relevant part of which is to the effect :- Section

54. Power for Railway administration to impose conditions for working traffic.-(1) Subject to the control of the Provincial Govern ment, a Railway administration may impose conditions, not inconsistent with this Act or with any general rule thereunder, with respect to the receiving, forwarding or delivering of any animals or goods. (2) The Railway administration shall keep at each station on its railway a copy of the conditions for the time being in force under subsection (1) at the station, and shall allow ,any person bi inspect it free of charge at all reasonable times. (3) .

8. In rebuttal learned counsel for the plaintiff-respondent relied on section 77 of the Railways Act and vehemently contended that the condition of notice in writing to the Station Master laid down by rule 1.34 of the Railway Coaching Tariff Rules is not consistent with the provisions of section 77 of the Railways Act and to that extent is ultra fires of the Railways Act. Section 77 of the Railways Act is in the following terms :- Section

77. Notification of claims to refunds of overcharges and to com pensation 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 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.

9. It is not disputed that the claim for compensation in writing was preferred by the plaintiff-respondent within the prescribed period of six months as such it is to be seen whether the condition of notice in writing to the Station Master before the delivery and removal from the railway premises of the damaged goods as laid down in rule 1.34 of the Railway Coaching Tariff Rules, is consistent with the provisions of section 77 of the Act ibid. Under the Act itself as laid down in section 67 the only condition precedent to the successful claiming of compensation for loss or damage of goods made over to a railway for carriage is a written submission of claim within six# months of the delivery to the railway. The condition imposed by the rule viz., that a person claiming compensation for the damage of goods made over to the railway cannot get any compensation unless he has forthwith prior a to the delivery given in writing notice to the Station Master in that regard, is inconsistent with the provisions of section 77 of the Act and virtually amounts to its repeal as it curtails the period of six months allowed for pre ferring the claim under section 77 of the Act and therefore, to that extent is ultra vires of the Act ibid. Even section 54 of the Act reproduced here before, under which rule 1.34 of the Railway Coaching Tariff is stated to have been framed clearly lays days down that no condition inconsistent with the Act can be imposed.

10. Looking at the matter from another angle, even if it be considered that rule 1.34 of the Railway Coaching Tariff Rules is valid, I am of the view that in substance its requirements were complied with. It is in the evidence of Attaullah Malik (D. W. 3) the Parcel Delivery Clerk produced and examined by the defendant-appellants that prior to the taking of delivery of the bales Gul Muhammad labourer the agent of the respondent-firm informed him that some of the bales were stained with oil. Again it is in the evidence that the damaged bales were shown to the Station Master, who retained the same and issued a telegram to the Senior Claim Inspector, Rawalpindi for the assessment of the damage. This also stands confirmed by a photostat copy of letter Exh. P. W. 2/3 dated 2-11-1973 wherein it is mentioned that the Station Master defendant No. 4 issued a telegram to the Senior Claim Inspector, Rawalpindi asking him to attend to assess the goods lying in the Parcel Office. The stand of the respondent that on the same day the damaged bales were shown to the Station Master, who retained these in his office could have been controverted by the defendants by examining the Station Master (defendant No. 4). But he was not produced and examined by the defendant appellants at the trial. The plaintiff mentioned him as his witness in the list of witnesses who could not be examined as by the time the plaintiff's evidence was recorded, he had retired from the service. For the reasons aforesaid I find no merit in this appeal which is dis missed. But in the circumstances of the case there will be no order as to costs. S. A. H. Appeal dismissed.