Jetmoll Bhojraj v. the Darjeeling Himalayan Railway Co. Ltd. and Others

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 402 of 1959. . Appeal from the j11dgment and deoree dated March 15, 1956 of the Calcutta. High Q,)llrt in Apt>- eal frot11 Original Decree :No. 236 of 19~9 •. Jehmdl BINfraj Dar'jeilU., Himal'!Jflll Rly. c •. Utl. IHI Jolllrldl •A.;"; •ri111in.(_ _ Himal•,a IUJ'• C.. Lli. 0. B. Aggarwala an4 Sukumar Ghoae, for the r.ppella.nt. Rameshwar_ Nath, for the respondent Nos. l to 3. D. N. Mukherjee a.nd D. Gupta, for respondent No. 4. 1962. Ma.y 2. The following judgment were 41eliYered. The judgment of Subba. Rao 11.nd lludholka.r, JJ., wa.s delivered by Mudholkar, J. SARK&R, J.-This a.ppeal arises out of a suit for recovery of da.ma.ges in reapeot of 90 ha.lee out of 259 bales of cloth delivered on Ma.y 10, 1946, a.t W a.di Bunder st11.tion on the Grea.t Indian Penin· sul11. Railw11.y, hereafter oalled the G. I. P. Ra.ilwa.y, to be carried from there to Giellokhola. a. sta.tion on the D11.rjeelin~ Himalayan B.a.il way, hereafter ca.lied the D. H. ltailway.

Io order to res.oh Giellekhola the goods ha.d to be ca.rried over fonr railways, na.mely, the G. I. P. Railway, E11.st Indian &11.ilw11.y, hereafter oalled the E.I. l{a.ilway, the Bengal Assam Railway, hereafter ca.lied the B.A. Ra.ilwa.y 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 tha.n the D. H. R~ilwa.y, were owned by the Government of India., the D. H. Railwa.y being owned by a. priva.te company. At some stage of the litigation the D. H. Railwi.y Company went into liquidation a.nd the liquids.tors were brought on the record. On June, 7, 1946, lti9 ha.Jes were delivered to the appellant to whom the Ra.ilwa.y Receipt hsd been E>ndorsed. V a.riom correspondcnoe thereafter ensued a.s to the remaining 90 ba.l~s with which a.lone the present litigation is oonoerned. About September 1946, the wagon containing the 90 bales -.as traoed at a et•tion called Gadkhali 011 thtt 2 S.O.R. B. A. Railway.

Further correspondence en9ued and ...._, the 90 bales actually arrived at Giellekhola · shortly prior to December 21, 19!6, 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, 194 7, 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 agree· ~ .,.~ ment between the appellant; the B: A. Railway and the D. H. Railway at Rs: 27,920-13-6. The a.ppell,ant 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., ma.king a demand of Rs. 34,192 for damage sµtfered by it as a result of the negligence of the railways in carrying the goods.

This sum was ma.de up of the aforesaid l!UIII 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 reftind of the railway freight. A demand for a similar sum was ma.de . on the D. H. Railway. This demand was repudiated by the railways. The appellant, therefore, on April 9, 1948, filed the snit for damages. The suit was decreed against the D. H. Railway only by the trial Court for Rs .. 27,920-13-6. , The D. H. Railway preferred an appeal against the r judgment ,of the trial Court to the High Court at Ca.lout~. The appellant alSo filed a cross object· ion contending .that· the suit should have been decreed against all the railways and. the decree should have been for . the full &JDonnt claimed by it. The High Court allowed the appeal and dismissed the oroSB-objection. Hence the present appeal. It seems to me that there are two reasons w h1.tl!is appu,il Bluiuld' fail.

The firat kJ.that tho Jg/JJ Jetmull 8hojraj Dafe11ing. Himalayan Rb. Oo. Lid. Sariar J. 111111 Jellllull Bh ojraj Darjttlint Himala;an RI;. Co. Lid. snit was barred by limita.tion. This case is governed by Art. 30 of the Limitation Act which provides ·-·• for a snit against a carrier for compensation for injuring goods, a period of one yea.r 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, 19!6. In the plaint the appellant stated, "Before the receipt of those bales a.t Giellekhola. in December 1946 it . was not poi!Bible for the plaintiff to know a.bout the aforesaid d!l.magod oondition of those bales, but no sooner the ~a.me arrived the fa.ct that the ea.me arrived in hopelessly damaged condition was brought to the notice of the railway authorities concerned."

Oa the ea.me date, the appellant wrote to the Political Officer of Sikkim for whom it had purchased the cloth, 6ta.ting, "we have been advised by our Tista Bridge a.gent that the consignment of 90 bales has now arrived at Giellekhola but the ea.me 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 ta.ken by the r~ilway. We beg therefore to request that steps may very kindly be ta.ken to expedite the settlement of the ea.me." I think that these letters clearly establish that the damage had occurred prior to December 21, 1946.

On t-bie part of the e&ee, 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 ucertained nnleEs the bales were opened and open 4elive!f 'WIB giYen." It aeeme to me t.hat die ..... 4. ~ 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 als' oY or looked the fact that in the plaint the ,..._, appellant made the case that the damage had oocurred 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 Deoember 21, 1946, to the Politica.1 Officer of Sikkim where it is stated, '~ "We beg, therefore, to request you to kindly in· struct the General Manager, · D. H. Railway, Kurseong, telegraphically to give open delivery of the consignment and to give a reoeipt for any loBB or damage." There iA further nothing to show that any damage had ocourred 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 ~ r bales had been damaged without their oontents• 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 Deoember 21, 1946. If it came to know of the damage then, the damage must have ooourred before that date. The suit should, therefore, have been fill'd within the period of one year of --' the date when the damage ooourred as provided in -- .Art. 30 of the Limitation Act ~d a further period of two montJas, being the time ~ for tlao I90e J elmull Bhoiraj Darjeeling Himalayan Bly. Ca. Ltd. Sarkar J. l •lmu/l BA.ojrGj Darjtding Bima/a!l"'I Rly. c.. Lid. s.,ta, J. 838 SUPREME OOURT REPORTS (1903J notice under s. 80 of the Code of Civil Procedure to the benefit of which the appellant was entitled ' - under s. 15 (2) of t'ie Limitation Act. As the Ir damage must have ooourred prior to December 21, 1946, q1e suit which was filed on April 9, 19!8, was therefore, clearly out of time. The other reason why the appeal should fail is that no notice under s.

77 of the Railways Aot, 1890, had been given. That section so far as is. material is in these terms. 8. 77. A pereon shall not be entitled ..... . .. . ... to compensation for the Joee, destruction or deterioration of ......... goods delivered to be ......... carried, unless hie claim to the coin· pensation has been preferred in writing by him or on his behalf to the railway administration, within six months from the date of tho delivery of the ......... goods for carriage by the railway. The 1ection 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 section is man· datory. If a claim is not preferred within the time mentioned, it cannot be recovered from the railw-'ly; a suit for such recovery must be dismissed.

Now I do not find that any claim was pre· ' ferred 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 waa 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 an;y claim to compemation N 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 It. claim to be preferred. lam unable to hold that a letter asking tha~ 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 Ooun~ vil v. M U8addi Lal ('). 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 ra.ilwa.y 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 Da'flal Bagk Store,s LU. v. The GovefflffJ· General in OotJ,ncil (') 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 had not arrived and asking that enquiries might be made." In Mardab .Ali v. Union of India (') 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 aily demand . for compensation. A notification of a claim under . s. 77 .must of neceBBity .contain a demand for compensation." 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) s s.c.R. 647. (2) [1947] 1 M.L.J. 152. (3) (1953) 50 Bom. L.R. lliO, J,tmu// Bhojraj D.rju/ing H lm•l•JtJ• Ru. Co. Ltd, Sark~r J. J 11madl B~jraj Datfe<lm1 1' hnal~n R~,. o •. Lill. SUi>REME OOURT REPORTS [1963] in s. 77 for the appellant had no knowledge that the goods had deteriorated till that period had expired. IL was therefor!' ccmtended tUut the maxim lex non cogit ad impos~ibilia aut iniutlia applied and the performance of the condition mentioned in the section shouM he 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 administration as required by s. 77. 'l'he contention proceedA on the basis of the impoSBibility of preferring the claim within the time mentioned in s. 77. But I think this is a misreading of the section. It doed seem to me that its terms can ever bo impoBBible of compliance. It requires that a claim to comp!msation for loss, destruction or deterioration of goods must be preferred within six months of the date of delivery of the goons to the railway. A olaim has to be preferred within this period whether the perHon entitled to the goods is then aware tha.t 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 sec ti on prevents him from uoov ering anything later. If it were not so, the section, which contains • a mandatory provision for the prot6Ction of the railway administration, would be rendered abAolutely nug~tory. Suppose the contention of the appellant was right. Theo it might legitimately say iD oaee of non-delivery of goods it was impossible for it to have made claim for their loBB or destruction within the period of sh: months for it was not then aware that the goods had been lost or deetro7ed and would never be delivered to it. It SUPREME OOURT R:l!:POR'fS '>--1 seems to me impossible that the seotion intended suoh result. The section clearly contemplatf!s than knowlege, a olaim must be preferred within the time mentioned ·in it. If this is so in the case .of loss or destruction of goods, it mnst 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 doesnot require that. It would be enough if a clalm .for damages. generally is preferred. Ho 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 fo~ 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 '*o that the railway administration might make the necessary enquiries promptly and before the evidence conceraing 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 1 with costs. MUDHOLKAR, J.-. ..:This is an appeal upon a • ' certificate granted by the High Court of Calcutta -- under Art. 133 (I) (a) o( tho Constitution from its judgment reversing a decree for damages passed.in Jetmull .BAoJmJ Da1jt4lin1 HimalayOn· Rly. c.. Lid. Sarkar J. Mudhollat J, 1'61 J ttmv1 I Bltojroj D1.rjttli•g iiiooolo- R(1. c..w. favour of the appellant firm by the Subordinate • ~· Judge, Darjeeling.

The admitted fa.ct a.ro briefly these. The appellant ha.rl consigned 259 bales of cloth from Wa.di-Bunder, a station on the Great Indian Penin· sula.r Railway (now the Central Railway) to Giellekhola., a station on the Darjeeling Himalayan Railway (now in liquidation) on May IO, 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 Genera.I Manager of the D. H. Railway requesting him to give early delivery of those bales. By a. letter dated JuJy.9,1946, the a.ppella.nt confirmed the telegram a.nd requested the General Mane.ger to see that the rema.ining bales reached the destination immediately. Thereafter some correspondence followed between the appellant and the Political Officer, Sikkim, to whom the bales were to be delivered by the appellant, and also between the Politioa.l Officer and the D. H. Railway administration.

It is, however, not necessary to refer to this correspondence and to certain othor correspondence whioh has been referred to in the statement of tho ca.~e 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 a.rrived at Giellekhola in "a very dama.ged condition" and , requesting that open delivery of the consignment be given immediately. Open delivery was given to the appellant's assistant mane.gar, Tulsi Ram, P.W. l, on February 12, 1947, by the Commercial Inspector, D.H. Railway. The damage was jointly ass· eased by the Commercial Inspector, D. H. Railway, and the Claims Inspector, Bengal A88am Railway, at Rs. 27,1120-13-6 and the &SBessment list was signed by them as well as by Tulsi Ram. By a. letter dated June 26, 1947, Mr • .A. C. Chatterjee, v Advocate, ma.de a claim of Rs. 34,192 against the Manager of the B. A. Railway, the General Mana· ger of the D. H. Ra.ii way and Messrs. Gillander Arbuthnot & Co., Ma.naging Agents for D. H. Rail· way.

On the same diy, Mr. Cbatterjee sent a similar letter to the G. I. P. Ra.ilwny administration. But the Superintendent of Claims of that Administration at Bombay repudiated· the claim on the ground that it had not been preferred within si1: months from the date of booking as required by a. 77 of the Indian Railways Act, 1890 (Act IX of 1890). It may be mentioned that the consign· ment had to· pass over the railway systems of G. I. P. Railway, East Indian Railway, Bengal Assam Railway, and Darjeeling Himal~yan Railway. It does not appear that any notice was given to the E. I. 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. I. Railway and the B. A. Railway . was made defendant No. l, the second defendant being the D. H. Railway. The appallant's claim was denied by both the defendants.

Two. written statements were, however, filed by the Dominion of India., one asrepresenting 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. s. 77 of the Indian Railways Act. The ma.in 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 co11>pensation for the damage to the· 90 bales was i;iven by the appellant to it within six months of the delivery of the consignment tq Jefmvll Bh.jroJ Darjeelinp Bin.aloian R{1. Co. Lid. Mudhol/caf"J, Jttmull lJhojroJ Dt1'j•d1.,,g Elimrrlaya,. Rt,. Co. Ltd 1'/udJiolka,. J. the G.I.P. Railway.

The second contention is that the suit was barred by limitation, having been insti· tuted more than twelve months of the date on which damage had occurred. Tho learned Subordinate Judge dismissed the suit in so far as the Dominion of India was concerned 011 the ground that no notice under s. 77 was given to the G. I. P. .Railway administration or the E. I. Railway administration or the" B. A. Railway administration. He, however, held that the telegram elated July I, 1946, and tho letter dated July 9, 1946, addressed to the Manager of D. H. Railway amountoo to sufficient compliance with the requirements of s. 77. He further held that the limitation for tho suit is that prescribed by Art. :JO of the Limitation Act. According to him a suit in~titutt>d within one year from the datA on which the loBB was discovered by tho plaintiff would be within time. On this finding the learned Subordinate Judge passed for a decree Rs. 26, 920.

13-6 against the soe.ond d<>fendant and dismissed tho suit against the first defonda.nt. The second defendant preferred an appPal befom the High Co11rt but shortly thereafter went into liquidation. Th&rcupon the liquidators were added ns appellants. The plaintiff proferred a cross-objection with respect to that part of his claim which was dismiBBed. Eventually tho plaintiff amended the cross-objection and sought a decreP- in the alternative against the G. I. I-'. Railway or the E. I. Railway. The High Court allowed the appeal and dismissed the croBB-objection upon the view that tho provisions of s. 77 have not been complied with and that the suit which falls under Art. :u of the Limitation Aot was barred by time. The first question to w hi oh we add res/ 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 los~. destruction or deterioration of ......... goods delivered to. be so carried unless his claim to ............ compensa· tion 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 .................. good1 for carriage by railway." . The High Courts in India have taken the view th~t the object of service of notice under' this pro· viiiion is essentially to enable the rail way administration to make a.n enquiry and• investigation as to whether the loss, destruction or deterior11tion was due to the consignor's !aches 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 may refer to a few of the decisions. They are Sha'TMul Huq v. Secretary of State (1) ]Jf.ahadetJa, Ayyar v. S. I. Railway Go. ('); Governor-General in Council v. G. S. Mills Ltd.,('); Meghaji Hirajee & Go., v. B. N. Railway Go. Ltd. ('). Bearing in mind the object of the sec- , tion it has also been held by several High Courts that a notice under s. 77 should be liberally construed. In our opinion that would be the proper way of construing a notice under that section. In enacting the section the intention of the legislQ- · ture must have been to afford only a protettion to the railway administration against fraud and not II) {1930J ! L.R. ~7, Cal. 12H6. (2) (1911\ Ll..R. 45, Mad. 1~5. (31 (1449) I.LR. 2R Pot. 178 (4) A.J.R. 1939 Nag. l4i, Jetmull Bhojraj Darjeeling Himala;uin RIJ. Co. l.Jd.

196t J11111ull Bllojroj I arj11ling Tlimo/a_,u Rl.J. c,,, -LJj, MudhotkarJ. to provide a means for depriving the consignors of their legitimate claims for compensation for the lose of or damage caused to their consignments during the course of transit on the railways. Bearing in mind theRe consideration we think that the letter of July 9, 1946 (Ex. I (y) ) which wa.e sent within six months of booking the consignment amounts to a snfficient 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 Ist inst. Invoice 5 tenth May, Wadi Bonder Geka part ninety bales not reached. Plea.se 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 neC€ssary act.ion 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 reaohed 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 oompensation bas not been made by the appellant in this notice. In our view however suoh a claim must be doomed 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 m11-king it olear that he would be holding the railway administration to its oontractual engagement which necel'Barily involves the payment of damages for breach of that engagement. In our opinion, therefore, not only the object underlying s.

77 is satisfied by the letter dated July 9, 1946 but also a claim for compensa· tion is implied iu 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 Ruch 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 an~, therefore, in so far as they are concerned the suit 11',JUSt 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 alr~ady held, a notice under s. · 1·1 ·was given within six months from the elate ·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 w hicih reads thus: "Agamst 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 appe- Hant is claiming is compensation for th~ damage t I J<tr.mll Bhojroj Darjetling Himalayan R{v. Co. LJd, Mudholko• J · 1lt1.ul1 Bhoj10J Dorj1tl"ng Himol<l.JOll Rt,, Co. Ltd. MudlioU.ar .1. to the goodR which were eventually delivered. Even so, the question is what is the starting point of limitation. According to col. ::! the starting point would be the date of the lo!!B or injury to the goo<ls.

Now when gouds are consigm·d by a consignor he would not be in a position to know the precise date 011 wbkh the lo~s or injury has occurred. In Union of India v. Amar Singh( 1) thiB Court has held that tho burden would bo no the railway administration who want to non-suit the plaintiff on the ground of limitation to establibh that the loss or injury occurred more than the year before the instil ution of the •uit. No attempt has been made on behalf of the D. H. Railway to show that the damage iu fac:t occuir~d more than one year before the Buit wns instituted. All that is said <in their behalf is that the appellant ki;.ew in December, 1P46, that the consignment appeared to be damaged. In this connection relian<:e is placed on Ex. B which is a. letter addressed by tho appeVant to the D. H. Hailway on December 21, l\!46. What is stated there is that the conRign · mont has arrived a.t Gielkkhole in "a. very da.mug,•d condition."

This has reference to the outer covering or the package and not to the conwnts. Moreover, delivery was given nearly t\\·o months after this and it is not poasi ble to say whether t hr; damage which was noticed Rt that time had alruady boon caused before December 21, Hl46, or wa• caused thereafter. Tbe D. H. Railway which had tho custody of the goods could alone have been in a position to say if at a.II, &ff to when the damage wa.s caused. Upon the material before us it is not poasible to eay that the suit wos inRtituted .beyond one year of the accrual of the cause of action. It il!, therefore, not barred by time. There is, however, one more question which needs to be considered and that is whether the (t) [1960J l S. C.R. 75, 88, 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 tho 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 ehow 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 th•1t the presumption has not been re hutted. Upon this view Vl'e must allow the 'appeal against the D. H. Hailway. 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 BO far as the D. H. Railway is concerned and restore that of 1 he trial court. ~ The appellant would be entitled to his proportionate costs against the D. H. Hailway. I BY Cou&T: In view of the majority opinion the Court allowed the appeal in pa.it, 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 wou Id be entitled to his proportionate costs again~t '~e·D. H. Railway. Appeal allowed. J 1lmutl Bhojrai Darj1eling Himalayan Rfy. Co. Ltd, MudholAar J.