Building vs Union Of India
2013 Latest Caselaw 3 Bom

                                    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

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

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

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

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

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