P L D 1959 (W (PLP)

(8) Is the suit in time ? (9) Is the defendant liable for the loss of any bales ? (10) To what damages, if any, is the plaintiff entitled ? (Covers paras 7 and 8 of the plaint and paras 7 and 8 of the W. S.). (11) General. The plaintiff has produced two witnesses including himself and the defendants have produced six witnesses out of which two were examined on commission. A number of documents have been proved and exhibited as evidence in the case. I propose to discuss the issues and refer to the relevant evidence with regard to them separately. Issue No. 1.‑The plaintiff has stated that he is the sole proprietor of the business concerned which is known as S. Zahur Ahmed Abdul Rauf and that Abdul Rauf is the name of his minor son. There is no evidence to the contrary and therefore I decide the issue in favour of the plaintiff. Issues Nos. 2 and 3.‑The goods were despatched by Dost Muhammad to S. Zahur Ahmed Abdul Rauf. Dost Muhammad is the father of the plaintiff who is the sole proprietor of S. Zahur Ahmed Abdul Rauf. The plaintiff has stated that the goods were sent on his account and belonged to him. This means that the consigner and the consignee were one and the same person, namely, the plaintiff. The contract for the carriage of the goods was, in ultimate analysis, made by the plaintiff with the railway. There is no evidence on record to rebut the evidence of the plaintiff and the learned counsel of the railway has conceded that the goods were in reality despatched to `self' and that the plaintiff has the right to sue. The contract of carriage of goods‑contains many terms but the relevant term on which reliance is placed by the Railway is contained in the risk note, Exh. 36, and reads as follows :‑ "I, we, the undersigned do hereby agree and undertake to hold the self railway administration over whose railway the said goods may be carried in transit from Multan City Station (Karachi City Railway) harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from mis conduct on the part of the railway administration servants". This term is not of any consequence for the purposes of this suit because, as conceded by the learned counsel of the railway, it is the responsibility of the railway to show what precautions and arrangements were taken and made for the safe transit of the goods and then it is the responsibility of the plaintiff to prove that there was carelessness or negligence of the railway. If the plaintiff succeeds in proving carelessness or negligence of the railway then misconduct of the railway would be established. In these circumstances the term contained in Exh. 36 does not give to the railway better protection than provided by the law applicable to the facts of this case. The conclusion is that the plaintiff has the right to sue and that the term of the risk note which is meant to protect the railways is not of much importance. Issues Nos. 4 and 6.‑The plaintiff endorsed the railway receipt in blank by writing on it "Zahur Ahmed Rauf" and delivered it to his clearing agents namely International Forwarding Agency Limited. They presented the railway receipt at Karachi to the railway authorities who honoured it and delivered to him 10 bales out of

23. They also gave to the agents the certificate of short landing, namely, Ex.

11. The agents sent a notice pur porting to be in accordance with the requirements of section 77 of tile Railways Act, to the Railway authorities and corres pondence was carried on between the railway authorities and the agents. The railway authorities informed the agents by their letters Ex. 14, Ex. 16 and Ex. 20 that the matter was under investigation and that the result would be communicated to them. On the 25th of August 1949 the railway, however, wrote a letter Ex. 22, in which they said "As you are neither the sender nor the consignee or the endorsed consignee of the above noted consignment, it is regretted that you cannot be recognised as the rightful claimant in this case and as such, your claim in this case cannot be entertained". In reply the agents wrote a letter, Ex. 23, in which they pointed out that the railway receipt was endorsed in their favour and that, in any case, payment could be made by a cheque in favour of Messrs S. Zahur Ahmad Abdul Rauf and sent to them within a week's time in default of which they threatened legal action. The railway, therefore, gave up their objection and wrote the letter, Ex. 24, informing the agents that two bundles of goat‑hair had been recovered and that final information would be sent to them later. After this no objection was raised by the railway regarding the right of the agents to claim loss. Their plea in the written statement is: "plaintiff's allegation in the first part of para 2 of his plaint that Messrs The International Forwarding Agency Ltd. were acting as his agents is not admitted". This is a half‑hearted plea. It does not lie in the mouth of the railway authorities after acting on the railway receipt endorsed in blank by the plaintiff and presented by the agents and after giving up their objection on receipt of the explanation by the agents and in view of the fact that the principal as well as the agents acknowledge and accept the agency, to say that they do not admit that the agents were acting on behalf of the principal. This objection was raised during the correspondence by the railway authorities in order to be able to get rid of the agents' claim and it has been raised by them in the written state ment in order to be able to object to the validity of Ex. 12 as a notice under section 77 of the Railways Act. The learned counsel of the Railway has conceded that a claim can be made under section 77 of the Railways Act by the claimant himself or on his behalf by somebody else but has contended that the real objection is not that the clearing agents were acting without authority but that they preferred the claim as principals and not as agents. He has referred to the language of the notice, Ex. 12, and pointed out that there is nothing in it to show that they were acting as agents This contention would have had force if clarification was not supplied by the agents in reply to the letter of the Railway, Ex. 22, by their letter, Ex. 23, and accepted by the Railway. It is clear from this letter of the agents that they made the claim in a dual capacity. They have justified their language of Ex. 12 by claiming to be the endorsees of the Railway Receipt as well as by pointing out that the money was payable to S. Zahur Ahmed Abdur Rauf. In these cir cumstances, the objection of the learned counsel does not appear to be weighty enough for invalidating the claim under section

77. There is another objection of the learned counsel to Ex.

12. The claim was addressed to the Divisional Superintendent, North Western Railway, Karachi and not to the Manager as required by section 140 of the Railways Act. It is required by section 77 to be preferred in writing to the "Railway Administration" and this Administration is defined by clause (6) of section 3 of the Railway Act to mean the `Manager' of the Railway and to include the Government when the Railway is administered by the Govern ment. Section 140 of the Railways Act further clarifies the necessity of addressing a notice or other document required to be served on Railway Administration, to be served on the Manager of the Railway which is administered by the Government. The learned counsel of the Railway has contended that Ex. 12 is invalid because the claim contained in it was made to the Divisional Superintendent, Karachi and not to the Railway Administration. The learned counsel has cited several rulings in which the learned Judges have laid down that the Chief Com mercial. Manager or the Chief Transportation Superintendent are not equal to the Manager , and that claims preferred to them were not validly preferred. I enquired from him if there was any officer in the North Western Railway, who was designated as the Manager of this Railway and he informed me that there was no such officer in this system of Railway but he referred to the following remarks which is found on page 641 of P. Hari Rao's Commentaries on the Indian Railways Act :‑ " In the case of a Railway administered by Government notice has to be given to the Manager of the Railway, and that term means not any sectional or departmental manager like the Chief Commercial Manager, but the principal or General Manager who is in over all charge of the Railway Administra tion concerned." The counsel contended that there is a General Manager of North Western Railway at Lahore and the word "Manager" used in section 140 should be taken in' the context of the section to refer to him. These contention f the learned counsel are convincing as far as they go, but the are not reply to the con tentions raised by the learned counsel of the plaintiff. They a that the Manager can delegate the authority to receive notice under section 140 of the Railways Act to a subordinate officer and that such delegation of authority need not be specifically proved if it is inferable from the circumstances of the case. In the present case the claim was made by the agents of the plaintiff to the Divisional Superintendent, Karachi, who entertained the claim, entered into correspondence with regard to it and ultimately repudiated the claim by his letter, Exh. 26, not on the ground that the claim was not made to the right officer but on the ground that the loss was the result of a theft in a running train and that he was not able to see that there was any misconduct on the part of the Railway Administration. He has himself signed the written statement submitted in this suit, and pleaded in para 9 of it that the notice under section, 77 of the Railways Act is "not in order". The plea is vague but it has been elaborated by the learned counsel by advancing two objections to which the reference has been made above. No attempt was made on behalf of the plaintiff to obtain a clarification of the expression "not in order" and therefore I have allowed the counsel of the Railway to raise the two objections during his arguments. The fact, however, remains that the Divisional Superintendent acted as a delegate of the Manager and would have delivered to the plaintiff the two bales which were recovered during the investiga tion of the police had they not been "detained under the orders of the Police." A Full Bench of the Lahore High Court has decided in Devi Ditta Mal v. Secretary of State (A I R 1926 Lab. 253) that a notice served on the Traffic Manager, Claims, was sufficient compliance with the provisions of section

77. It was held by the learned Judges that the Agent had deputed the Traffic Manager in the claims Department to receive claims on his behalf and that such delegation of authority was valid. A Full Bench of the Patna High Court has decided in Governor‑General in Council v. Gouri Shanker Mills Ltd. (A I R 1949 Pat. 347) that :‑ " The requirements of S. 77 read with S. 140 are satisfied by serving a notice within the prescribed period on the Chief Commercial Manager or any other subordinate officer of a Railway Company owned by the Government provided it is established as a fact that the Railway Company by its course of business or the terms of the contract between the parties has held out a particular officer as competent to deal with the claims on receipt of notice to him." These remarks of the learned Judges are fully applicable to the circumstances of the present case. "The learned counsel of the Railway has drawn my attention to the following remark, which is found on page 653 of the Commentaries by Hari Rao on Indian Railways Act:‑ "The circumstance that a Subordinate Railway Officer is entrusted with the duty of disposing of claims will not prove that the power also to receive notices under S. 77 has been entrusted or delegated to him." This remark is not applicable to the facts of the present case, because the Divisional Superintendent, Karachi not only disposed of the claim but has also given his reason for repudiating the claim and the grounds of repudiation stated by him do not include the reason that the claim was not preferred to the proper authority. 1, therefore, held that the Railway held out the Divisional Superintendent. Karachi to be authorised to receive notices and that the claim made by Ex. 12 is in order under f section 77 read with section 140 of the Railways Act. Issues Nos. 5 & 8.‑Admittedly 13 bales out of 23 were delivered by the Railway. There is evidence on record to establish that the goods were loaded in Wagon No. 1337 which arrived safely at Kotri, and left Kotri with the shutters of the Wagon and the rivets on it intact, but no evidence has been produced to disclose what happened during the journey from Kotri to the Karachi City Station. The counsel of the Railway has explained the omission by pointing out that the suit is very old and therefore the officers who had knowledge of the facts and who had performed duties in relation to this journey were either dead or had been transferred to distant places and were not traceable. It is true that 8 years have passed since the sui was filed and about 9 years have passed since the loss occurred, but this may only mean that the officers who have conducted the case on behalf of the Railway are not blame-able for the omission The omission is nevertheless there and is not removed on account of the excuse, however good they may be, for not disclosing in C detail how the consignment was dealt with throughout the transit. , In law the responsibility of the plaintiff to prove misconduct or the negligence of the Railway commences after full disclosure of b facts by the Railway. The learned counsel of the plaintiff has suggested in the cross‑examination of Jameerul Hassan, D. W. 6, who was goods clerk in March 1949 at the Karachi City Railway Station that there were thefts on running trains in 1949. In spite of it, according to the witness, no padlocks were placed on the goods vans. Merajuddin, D. W. 4, trains‑clerk at Kotri in March 1949 has admitted the truth of the allegation that there were a number of thefts between Kotri and Karachi in March‑April' 1949. Muhammad Iqbal, D. W. 3, loading clerk at the Multar. Railway Station in March 1949, has stated that riveting was done by passing a small piece of iron bar through the holes which were provided in the shutters and by bending their ends, Riveting, strictly speaking, does not mean bending ends but beating out the head‑less ends after passing a nail or a bolt through the holes. The correct course was, therefore, not adopted if the ends of the nails were only turned. Witness Muhammad Iqbal has stated that the bent ends can be straightened in about 3 or 4 minutes' time. Merajuddin has admitted that the bent ends can be straightened with the help of a `hook'. Muhammad Iqbal admitted that it was necessary to use both hands even for this purpose, but has expressed his ignorance whether the ends can be straightened by a mart standing on the ground or not. He had to express his ignorance because he also admitted that no foot steps were provided to the wagon in which the goods in suit were loaded and that the rivets were placed at a height of 5 to 6 feet from the ground level. If both hands had to be used for unriveting the shutters, if it was difficult for a man to unrivet them while standing on the ground and if no foot steps were provided on the wagon on which one could stand and unrivet the shutters, then how could a thief open them while the train was running ? Merajuddin has explained the problem as follows :‑ " Usually thefts in running train takes place by the thieves making the rivets loose or removing them while the train is standing and then opening the shutters while the train is in motion." This means that preparation for the theft was made by tampering with the rivets while the train was standing. The manner in which the shutters were fastened made this easy. If this is so, then prevention was not beyond the power of the Railway. The conclusion is that the theft took place through the carelessness and negligence of the Railway and they are liable for the loss suffered by the plaintiff. I may add that the railway have not proved that the theft actually took place while the train was running. The evidence collected by the police during their investigation was available but it has not been produced. Issues Nos. 7 & 8.‑These issues were dropped by the learned counsel of the Railway. Issue No. 10.‑I believe the plaintiff and hold that the plaintiff has suffered a loss of Rs. 5,454‑4‑

0. No evidence has been produced in rebuttal. Issue No. 11‑The plaintiff is granted a decree for Rs. 5,454‑4‑0 together with interest 6% per annum from the date of the suit until realisation and costs of the suit. A.H. Suit decreed.