Building vs Union Of India

                                    1
                                                          FA1209.96




                                                                          
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                  
                          APPELLATE SIDE

                 FIRST APPEAL NO. 1209 OF 1996




                                                 
    M/s. SAPNA EMPORIUM             )
    carrying on business at Sutar   )
    Gulli, 2nd floor, Sachidanand   )




                                       
    Building, Bombay 400 004.       )   ..    APPELLANT

          VERSUS
                         
    UNION OF INDIA               )
                        
    represented by General Manager
    Western Railways, Churchgate )
    Bombay 400 020.              )      ..    RESPONDENT

    Mr. Sohanraj Chopda, Advocate for the appellant
      


    Mr.Suresh Kumar, Advocate for the respondent
   



                       CORAM:-A. P. BHANGALE, J.
                       JUDGMENT RESERVED ON: 04/10/2013
                       JUDGMENT PRONOUNCED





                       ON:                 : __/10/2013.

    JUDGMENT:

First Appeal No. 1209 of 1996 is against the Judgment and order dated 22-09-1995 passed in Case No. OC 9300195 passed by the Railway claims Tribunal, Bombay 1/7 ::: Downloaded on - 27/11/2013 20:25:21 ::: 2 FA1209.96 whereby it was held that no valid notice was served under section 106 of the Railways Act 1989.

2 Facts stated are :-

On 8th July 1992 a consignment was booked from Bombay central to Delhi. It was a case of non-delivery. The time expired n 07-01-1993. The appellant sent notice dated 25-01-1993. The Claim was filed on 16-07-1993. The notice was objected by the Respondent on the ground that it was sent and served after expiry of six months from the date of the booking, therefore, was not valid within the meaning of section 106 of the Railways Act 1989. Notice under Section 106 of the Act is required to be served upon the appropriate person i.e. Zonal Manager and not General Manager for the Railways Administration within six months from the date of the entrustment of the goods. In the present case it is contended that the notice was sent and served beyond limitation period statutorily prescribed.

FA1209.96 3 Mr. Suresh Kumar, learned advocate argued for the respondent with reference to the ruling in Birla Cement Works Vs G.M. Western Railways and another(1995) 2 SCC 493 the claim for refund of excess freight was held barred by Limitation. It was held that section 17(1) © of the Limitation Act,1963 would apply only to a suit or an application made in that behalf in a Civil suit. The Tribunal is creature of the Statute. Therefore is not a Civil Court nor the Limitation Act has application. Thus claim under Section78-B of the Act was disallowed as the claim was found statutorily barred.

3 While on behalf of the appellant it is argued with reference to the ruling in Jetmull Bhojraj Vs Darjeeling Himalayan Railway Co. Ltd. & Ors. by three Judges Bench In AIR 1962 SC 1879. Notice of claim for compensation and refund of overcharge. This ruling is about the liberal construction of the notice. Majority view held that the letter amounts to sufficient notice for the purposes of 3/7 ::: Downloaded on - 27/11/2013 20:25:21 ::: 4 FA1209.96 section 77 of the Railways Act. In another ruling in Governor General in Council (now Union of India) Vs. Musaddilal AIR 1961 SC 725, it was held that section 77 of the Act was enacted to enable the Railway Administration to make inquiries and if possible to recover the goods and deliver them to consignee and to prevent stale claims. In that case the respondent had pleaded that the suit filed by him was not for compensation for loss, destruction, or deterioration of the goods but for "non-delivery of the goods". Therefore in the facts of the case in hand the ruling is not attracted. The provision as to pre-claim notice is as under:-

106. Notice of claim for compensation and refund of over charge.

(1) A person shall not be entitled to claim compensation against a railway administration for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway, unless a notice thereof is served by him or 4/7 ::: Downloaded on - 27/11/2013 20:25:21 ::: 5 FA1209.96 on his behalf,-

(a) to the railway administration to which the goods are entrusted for carriage; or

(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurs, within a period of six months from the date of entrustment of the goods.

(2) Any information demanded or enquiry made in writing from, or any complaint made in writing to, any of the railway administrations mentioned in sub-section (1) by or on behalf of the person within the said period of six months regarding the non-delivery or delayed delivery of the goods with particulars sufficient to identify the goods shall, for the purpose, of this section, be deemed. to be a notice of claim for compensation.

(3) A person shall not be entitled to a refund of an 5/7 ::: Downloaded on - 27/11/2013 20:25:21 ::: 6 FA1209.96 overcharge in respect of goods carried by railway unless a notice there for has been served by him or on his behalf to the railway administration to which the overcharge has been paid within six months from the date of such payment or the date of delivery of such goods at the destination station, whichever is later.

No evidence was led before the Tribunal by the appellant-claimant to establish that any inquiry was made or information was sought by any written endorsement from railways Administration regarding the alleged non-delivery of the goods, in writing within six months. The contention on behalf of the Appellant that there was duplicate L.R. and Railways authority had made endorsement cannot be accepted at this stage for want of evidence. That being so, no fault is found with the impugned order. The Railway Administration is protected against the time barred/stale claims due to the requirement of the statutorily prescribed pre-claim statutory 6/7 ::: Downloaded on - 27/11/2013 20:25:21 ::: 7 FA1209.96 notice as required under Section 106 of the Railways Act 1989.

5 Hence appeal has no merits. It is dismissed. No order as to costs.

(A.P. BHANGALE, J.) md.saleem 7/7 ::: Downloaded on - 27/11/2013 20:25:21 :::