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It appears to us that the conclusion reached by the Courts below that the appellants mark is deceptively similar to that of the respondents cannot be stated to be erroneous. Ratio |
Besides, this question of deceptive similarity is a question of fact, unless the test employed for determining it suffers from error. Ratio |
In the present case, it was not suggested that the Courts below had committed any error in laying down the principles on which the comparison has to be made and deceptive similarity ascertained. Ratio |
(See per Lord Watson in Attorney General for the Dominion of Canada vs Attorney General for Ontario etc.) (2) . Ratio |
As there are concurrent findings of fact on this matter, we do not propose to enter into a discussion of this question de novo, since we are satisfied that the conclusion reached is not unreasonable. Ratio |
Lastly it was submitted that this was a case of honest con current user within section 10(2) of the Act. ARG |
This point was, however, not raised in any of the Courts below and we do not propose to entertain it for the first time in this Court. Ratio |
The result is, the appeals are dismissed with costs one set of hearing fee. RPC |
Appeals dismissed. RPC |
vil Appeal No. 536 of 1962. FAC |
Appeal from the judgment and decree dated March 26. FAC |
1958, of the High Court at Patna in First Appeal No. 340 of .1951. FAC |
147 Niren De, Additional Solicitor General, N.D. Karkhanis and B.R.G.K. Achar, for the appellant. FAC |
Bishan Narain, P. D. Himmatsinghka section Murthy and B.P. Maheshwari, for the respondent. FAC |
The judgment of the Court was delivered by Wanchoo, J. FAC |
This is an appeal on a certificate granted by the Patna High Court. FAC |
The respondent sued the Union of India as representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar. FAC |
This consignment was loaded in wagon No. 9643 on December 1. 1947. FAC |
It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 On goods train. Ratio |
After reaching Mughalsarai, the wagon was kept in the marshaling yard till December 12, 1947. FAC |
It wag sent to Baidyanadham by 214 On goods train from Mughalsarai at 6 40 p.m. on December 12, 1947 and eventually reached Baidyanathdham on December 21, 1947. FAC |
The respondent who was the consignee presented the railway receipt on the same day for delivery of the consignment. FAC |
Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. FAC |
Consequently on August 311948, notice was g:yen under section 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. FAC |
The consignment had been booked under risk note form Z which for all practical purposes is in the same terms as risk note form B. FAC |
The respondent claimed damages for non delivery on the ground that the non delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461/12/ . FAC |
The suit was resisted by the appellant and a number of defences were taken. FAC |
In the present appeal we are only concerned with two defences. FAC |
It was first contended that the suit was barred by section 77 of the Indian Railways Act, No. IX of 1890, (hereinafter referred to as the Act), inasmuch as notice required therein was not given by the respondent. FAC |
Secondly it was contended that the consignment was sent under risk note form Z and under the terms of that risk note the railway was absolved from all responsibility for loss, destruction or deterioration of goods consigned thereunder from any cause whatsoever except upon proof of misconduct of the railway of its serva... |
and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to discharge that burden. FAC |
Further in compliance with the terms of the risk note, the railway made a disclosure in the written statement as to how the consignment was dealt with throughout the period it was in its possession or control. FAC |
The case of the railway in this connection was that there was a theft in the running train between Mughalsarai and 148 Buxar on December 12, 1947 and that was how part of the con signment was lost. FAC |
As the loss was not due to any misconduct on the part of the railway or its servants and as the respondent had not discharged the burden which lay on him after the railway had given evidence of how the consignment had been dealt with, there was no liability on the railway. FAC |
On the first point, the trial court held On the basis of certain decisions of the Patna High Court that no notice under section 77 was necessary in a case of non delivery which was held to be different from loss. RLC |
On the second point relating to the responsibility of the railway on the ' basis of risk note form Z, the trial court held that it had not been proved that the loss was due to misconduct of the railway or its servants. RLC |
It therefore dismissed the suit. RLC |
Then followed an appeal by the respondent to the High Court. FAC |
The High Court apparently upheld the finding of the trial court on the question of notice under s.77. RLC |
But on the second point the High Court was of opinion that there was a breach of the condition of disclosure provided in risk note Z under which the consignment had been booked, and therefore the appellant could not take advantage of the risk note at all and the liability of the railway must be assessed on the footing ... |
It therefore went on to consider the liability of the railway as a simple bailee and held on the ' evidence that the railway did not take proper care of the wagon at Mughalsarai and that in all probability the seals and rivets of the wagon had been allowed to be broken there and all arrangements had been completed as t... |
In this view of the matter the High Court allowed the appeal and decreed the suit with costs As the judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate. RLC |
and that is how the matter has come up before us. Ratio |
We .shall first deal with the question of the notice. Ratio |
We are in this case concerned with the Act as it was in 1947 before its amendment by Central Act 56 of 1949 and Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was in 1947. Ratio |
Now section 77 inter alia provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried ' by railway, unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six mont... |
There was a conflict between the High Courts on the question whether non delivery of goods carried by railway amounted to less within the meaning of section 77. Ratio |
Some High Courts (including the Patna High Court) held that a case of non delivery was distinct from a case of loss and no notice under section 77 was necessary .in the case of non delivery. Ratio |
Other High Courts however took a contrary view and held that a case of non delivery also was a case of loss. Ratio |
This conflict has now been resolved by the decision of this Court in Governor General in Council vs Musaddilal (1) and the view taken by the Patna High Court has been overruled. PRE |
This Court has held that failure to deliver goods is the consequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and therefore notice under section 77 is necessary in the case of non delivery which arises from the loss of goods. PRE |
Therefore notice under section 77 was necessary in the present case. Ratio |
It is true that the respondent stated in the plaint in conformity with 'the view of the Patna High Court prevalent in Bihar that no notice under s.77 was necessary as it was a case of non delivery. Ratio |
But we find in actual fact that a notice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.I.R. in which it was stated that 60 bales of cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had not been delivered. Ratio |
Therefore the respondent gave notice that if the bales were not delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/12/ , and the details as to how the amount was arrived at were given in this notice. Ratio |
It is true that the notice was not specifically stated to be a notice under section 77 of the Act but it gave all the particulars necessary in a notice under that section. Ratio |
This notice or letter was sent within six months of the booking of the consignment. Ratio |
A similar case came up before this Court in Jetmull Bhojraj vs The Darjeeling Himalayan Railway Co. Ltd.(2) and this Court held that the letter to the railway in that case was sufficient notice for the .purpose of section 77 of the Act. 'Following that decision we hold that the letter in the present case which is even ... |
We may add that the learned Additional Solicitor General did not challenge this in view of the decision in Jetmull Bhojraj 's case(2). Ratio |
This brings us to the second question raised in the appeal. Ratio |
We have already indicated that the High Court held that as the burden of disclosure which was on the railway had not been discharged there vas a breach of one of the terms of the risk note Z and therefore the risk note did not apply at all and the responsibility of the railway had to be assessed under ' section 72 (1) ... |
This view of the law has been contested on behalf of the appellant and it is urged that after the risk note is executed either in form Z or in form B, the responsibility of the railway must be judged in accordance with the risk note even if there is some breach of the condition as to disclosure. Ratio |
It may be mentioned that risk note form Z and risk note form B are exactly similar in their terms insolar as the responsibility of the railway is concerned for risk note 150 form B applies to individual consignment while form Z is executed by a party who has usually to send goods by railway in large numbers. Ratio |
Risk note form Z is general in its nature and applies to all consignments that a party may send after its execution. Ratio |
It is proved that the consignment in this case was covered by risk note form Z. Ratio |
The main advantage that a consignor gets by sending a consignment under from Z or form B is a specially reduced rate as compared t3 the ordinary rate at which goods are carried by the railway and it is because of this specially reduced rate that the burden is thrown on the consignor in a suit for damages to prove misco... |
On the other hand the argument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk note, as soon as there is non delivery and a claim is made on the railway for compensation, to disclose how the consignment was dealt with th... |
Section 72 (1) defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to be the same as that of a bailee under sections 152 and 161 of the , subject to other provisions of the Act. STA |
Sub section (2) of section 72 provides that an agreement purporting to limit the responsibility under section 72 (1) can be made subject to two conditions, namely, (i) that it is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and (ii) that it is... |
Sub section (3) of section 72 provides that nothing in the common law of England or in the Carriers Act 1865 regarding the responsibility of common carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration. STA |
So the responsibility of the railway for loss etc. is the same as that of a bailee under the Indian Contract Act. Ratio |
But this responsibility can be limited as provided in section 72 (2). Ratio |
For the purpose of limiting this responsibility risk notes form B and form Z have been approved by the Governor General and where goods are booked under these risk notes the liability is limited in the manner provided thereunder. Ratio |
It is therefore necessary to set out the relevant terms of the risk note, for the decision of this case will turn on the provisions of the risk note itself. Ratio |
The risk note whether it is in form B or form Z provides that where goods are carried at owner 's risk on specially reduced rates, the owner agrees or undertakes to hold the railway administration 151 "harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of suc... |
"thus risk notes B and Z provide for complete immunity of the railway except upon proof of misconduct. Ratio |
But to this immunity there is a proviso and it is the construction of the proviso that arises in the present appeal. Ratio |
The proviso is in these terms: "Provided that in the following cases: (a) Non delivery of the whole of a consignment packed in accordance with the instruction laid .down in the tariff or where there are no instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, wh... |
It is not in dispute that the present case comes under cl(a) of the risk note. Ratio |
An exactly similar provision in risk note form B came up for consideration before the Privy Council in Surat Cotton Spinning & Weaving Mills vs Secretary Of State for India in Council, ( ') and the law on the subject was laid down thus at pp.181 182: "The first portion of the proviso provides that the Rail way Administ... |
In their Lordships ' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b), and is not confined to the stage of litigation. PRE |
Clearly one object of the provision is to obviate, if possible, the necessity for litigation. Ratio |
On the other hand, the closing words of the obligation clearly apply to the litigious stage. Ratio |
As to the extent of the disclosure, it is confined to the period during which the (1) [1927] L.P LXIV: 152 consignment was within the possession or control of the Railway Administration; it does not relate, for instance, to the period after the goods have been the fatuously removed from the premises. Ratio |
On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants. Ratio |
The character of what is requisite may vary according to the circumstances of different cases, but, if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially, decided. Ratio |
As to the accuracy or truth of the information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that as was properly done in the present suit, the Railway Administration... |
"At the close of the evidence for the Administration two questions may be said.to arise, which it is important to keep distinct. Ratio |
The first question is not a mere question of.procedure, but iS whether they have discharged their obligation of disclosure, ' and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to :be Unfamiliar in the practice of the Court; if the consi... |
If the Administration fails to take the opportunity to satisfy the demands of the consignor so far as endorsed by the Court, they will be in breach of their contractual obligation of disclosure. Ratio |
"The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration; if so, the consignor is absolved from his original burden of proof. Ratio |
But, in this case, the decision of the Court may be given when the evidence of both sides has been completed. Ratio |
It is clearly for the Administration to decide for themselves whether they have adduced all the evidence which they consider desirable in avoidance of such fair "inference of misconduct". Ratio |
They will doubtless keep in mind the provisions of s.114 of the Indian Evidence Act". Ratio |
With respect we are of opinion that this exposition of the law relating to risk note B applies also to risk note Z and we accept it 153 as correct. Ratio |
Thus the responsibility of the railway. Ratio |
administration to disclose to the consignor how the consignment was dealt with thrOughOut the time it Was in its possession or control arises at once under the agreement in either of the cases (a) or (b) and is not confined to the stage of litigation. Ratio |
But we are not prepared to accept the contention on behalf of the respondent that this responsibility to make full disclosure arises immediately the claim is made by the consignor and if the railway immediately on such claim being made does not disclose all the facts to the consignor, there is immediately a breach of t... |
It is true that the railway is bound to disclose to the consignor how the Consignment was dealt with throughout the time it was in its possession even before any litigation starts; but we are of opinion that such disclosure is necessary only where the consignor specifically asks the railway to make :the disclosure. Rat... |
If no such disclosure is asked for, the administration need not make it before the ' litigation. Ratio |
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