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1983 Supreme(P&H) 322
PUNJAB & HARYANA HIGH COURT
Rajendra Nath Mittal, J.
Union Of India
Versus
Punjab State Co Operative Supply And Marketing Federation Ltd., Chandigarh
Civil Regular Second Appeal No. 1056 of 1975,
Decided On : AUGUST 1, 1983
Sections 140 and 142 of the Railways Act apply to the preference of claims under Section 78-B as well.
Headnote:
RAILWAYS ACT - NOTICE UNDER SECTION 78-B - SERVICE - PRESUMPTION - SECTION 142 - APPLICABILITY - INTERPRETATION - SECTION 140 - SERVICE OF NOTICES ON RAILWAY ADMINISTRATIONS - MODES OF SERVICE - SECTION 78-B - PREFERENCE OF CLAIMS - SERVICE OF NOTICE - INTERPRETATION - SECTION 141 - SERVICE OF NOTICES BY RAILWAY ADMINISTRATIONS - SIMILARITY WITH SECTION 140 - SECTION 27 OF THE GENERAL CLAUSES ACT - MEANING OF "SERVICE" - SECTION 77 OF THE RAILWAYS ACT - SUBSTITUTION WITH SECTION 78-B - CHANGE IN LANGUAGE - NO MATERIAL CHANGE IN SUBSTANCE - POSTAL CERTIFICATE - RELIABILITY - DESPATCH REGISTER - INCORRECT SERIAL NUMBERS - RELIABILITY - NOTICE - VALIDITY - SERVICE ON BEHALF OF PLAINTIFF - INTERPRETATION - SECTION 78-B - PREFERENCE OF CLAIMS - SERVICE OF NOTICE - INTERPRETATION.
Fact of the Case:
Plaintiff's 220 bags of Superphosphate fertilizer were lost during transit by the defendant railway. Plaintiff sued for the price of the goods and interest. The trial court and the appellate court held that proper notice under Section 78-B of the Railways Act was given by a duly authorized person on behalf of the plaintiff and decreed the suit in favor of the plaintiff. Defendant appealed.
Finding of the Court:
The High Court held that the notice under Section 78-B of the Railways Act was not duly served upon the defendant and that the same was not given by an authorized person. The court found that the notice was not sent under registered cover and did not bear the full address of the Chief Commercial Superintendent (Claim). The court also found that the despatch register was not properly maintained and could not be relied upon. The court further held that the notice was validly served on behalf of the plaintiff.
Issues: 1. Whether a notice under Section 78-B was served upon the defendant-appellant? 2. Whether the notice was served on behalf of the plaintiff?
Ratio Decidendi: 1. Section 140 and 142 of the Railways Act apply to the preference of claims under Section 78-B as well. 2. A claim under Section 78-B, when forwarded by post, has to be in accordance with Clause (c) of Section 140 and when so forwarded, the presumption under Section 142 is attracted. 3. The term "service" has the same meaning as the terms "give", "send" etc. if so, the term "prefer" cannot mean anything different. 4. The notice was not sent under registered cover and did not bear the full address of the Chief Commercial Superintendent (Claim). Therefore, the presumption of service under Section 142 of the Railways Act is not attracted. 5. The despatch register was not properly maintained and could not be relied upon to prove service of the notice. 6. The notice was validly served on behalf of the plaintiff as it was sent by the Manager of the plaintiff's branch at Dhuri on behalf of the plaintiff.
Final Decision: The appeal was allowed, the judgments and decrees of the courts below were set aside, and the suit of the plaintiff was dismissed.
1. This is a second appeal by the defendant against the judgment and decree of the Additional District Judge, Sangrur, dt. 19th Mar. 1975.
2. Briefly, the facts are that 220 bags of Superphosphate (fertilizer) purchased by the plaintiff were booked at Ambar Nath Railway Station on 15th July, 1969, for delivery at Dhuri. The bags were lost during the transit. The plaintiff instituted a suit for recovery of Rupees 9,950.00 on account of price of the goods and interest thereon at the rate of 6 per cent per annum from the date of the booking of the goods up to the date of the suit.
3. The suit was contested by the defendant who inter alia pleaded that notice under S.78-B of the Railways Act (hereinafter called the Act), was not duly served upon it and that the same was not given by an authorised person. Some other pleas were also taken but they do not survive in second appeal.
4. The trial Court held that the proper notice under S.78-B of the Act was given by a duly authorised person on behalf of the plaintiff and that the plaintiff was entitled to the price of the goods amounting to Rs. 8,360.00 and not the interest. Consequently, it partly decreed the suit in favour of the plaintiff. On appeal by the Union of India, the Additional District Judge, Sangrur, affirmed the judgment and decree of the trial Court. It has come up in second appeal to this Court.
5. The only question that arises for determination is whether a notice under S.78-B was served upon the defendant-appellant and, if so, whether it was served on behalf of the plaintiff. The learned counsel for the appellant has urged that the notice dt. 26th Dec. 1969, Ext. P. 3, is alleged to have been despatched by post after obtaining certificate of posting by the Manager of the plaintiff. He urges that unless properly addressed notice was sent under registered cover, no presumption of service could arise. He further argues that the notice did not even contain correct address of the addressee. According to him, the notice was given by the Manager of the plaintiff s branch at Dhuri and not by the plaintiff and, therefore, it was not served by the proper person. In support of his contention, he has referred to Ss.78-B, 140 and 142 of the Act.
6. I have duly considered the arguments of the learned counsel. First I shall deal with the argument whether the alleged notice under S.78-B was served upon the appellant. The notice t. 26th/27th Dec. 1969, Ext. P. 3, is alleged to have been sent by the Manager of Dhuri branch of the plaintiff to the Chief Commercial Superintendent (Claim), Northern Railways, New Delhi. The address given on the certificate of posting is as follows:-
"The Chief Commercial Superintendent (Claim), Northern Railways, New ) Delhi."
The address of the Chief Commercial Superintendent (Claim) as given in the notice under S.80 of the Civil P. C., P. 10/A, is as follows:-
"Chief Commercial Superintendent (Claim), N. Rly. IRCA Building, New Delhi."
Thus, there is discrepancy in the addresses of the addressee in the two notices. The learned counsel for the appellant admits that the address given on the notice under S.80, Civil P. C., is correct. He, however, says that the address on the notice under S.78-B of the Act is incomplete.
7. At this stage, it will be appropriate to refer to Ss.78-B, 140 and 142 of the Act which read as follows:-
"78-B. Notification of claims to refunds of overcharges and to compensation 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, damage, deterioration or non-delivery 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- (a) to the railway administration to which the animals or goods were delivered to be carried by railway, or
(b) to the railway administration on whose railway the destination station lies, or the loss,
