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Railway Act (IX of 1890)

‑‑ Ss. 72‑8‑Word "loss" occurring in sections‑Includes loss to owner of goods made over to Railways and being misdelivered lost to person entitled.

Hills Sawgers & Co. v. Secretary of State A I R 1921 Lah. 1 rel.

Abdul Tyeb v. Pakistan P L D 1960.‑Kar. 764 disapproved.

K. B. Abbas for Petitioner.

Farooq. A. Hassan and Abid Hassan Minto for Respondent.

Dates of hearing :17th, 18th and 19th June 1975.

MUSHTAQ HUSSAIN, J.‑The Allied Engineering Company consigned four packages containing U. S. G. Sheets to Gujranwala and delivered the same to the Pakistan Western Railways Karachi Office on 2nd of March 1960 and obtained railway Receipt No. 693222 of the same date. At the time of delivery at Gujranwala the packages were found to be loose and 90 out of the 391 sheets consigned at Karachi were found to be short. The Allied Engineering Company, therefore, filed a suit against respondent for the recovery of Rs. 3,034‑6‑0.

The suit was contested by the Railways on a number of grounds and the following issues were framed :‑

(1) Does not the plaintiff have a locus standi to sue

(2) Was the notice under section 77 Railways Act given after expiry of six months from the date of booking If so, with what effect

(3) Is the plaintiff a registered firm If not, what is its effect

(4) Was the consignment booked on execution of risk note If so, with what effect (5) Is the notice under section 80, C. P. C. invalid

(6) Is the plaintiff entitled to the recovery of Rs. 3,034.6‑0 as detailed in para. No. 5 of the plaint.

The suit was decreed by the Senior Civil Judge, Gujranwala on 11‑10‑1962 and an appeal filed against it was accepted by the learned District Judge, Gujranwala on 27‑5‑1963. Hence this second appeal.

The matter came up before one of us (A. R. Sheikh, J.) who found that there was a great conflict of judicial authorities on the only question raised before this Court i.e. as to whether a notice under section 77 of the Railways Act was a condition precedent for filing the suit out of which this appeal has arisen. His Lordship consequently directed that , the papers be laid

before my Lord the Chief Justice for constitution of a larger bench. The larger bench was consequently constituted comprising my learned brother A. R. Sheikh; J. and myself.

There is no doubt that there is divergence of authorities on the question whether the word "Loss" used in section 77 connotes the loss caused to the consignee or consigner or does not it in fact mean the loss of goods while in the hands of the carrier. A resume of some of the rulings supporting either view is contained in the order of the reference and they need not be repeated here particularly because we find that a full bench consisting of three Judges ruled in Hill Sawyers and Co. v Secretary of State (1) that .‑

"The word 'loss' in Chapter VII of the Indian Railways Act includes loss to the owner of goods made over to a Railway Administration, which have been misdelivered and so have been lost to the person entitled thereto.".

Although one of the members of the Full Bench‑Abdul Raoof, J. did not agree with his two learned brothers and came to the conclusion that‑

"if that had been the intention there would have been no necessity of using the words destruction or deterioration, for in that case they would 1 redundant and useless. In my opinion the word 'loss' in all sections has been used in a technical sense meaning loss by the Railways Company."

Be that as it may, since the opinion of the majority in that case constituted the ruling of the Full Bench it is not open to us sitting in a division bench to adopt a contrary view. Unfortunately a contrary view was expressed in Abdul Tyeb v. Pakistan (P L D 1960 Kar. 764), by a learned Single Judge of the Karachi seat of the West Pakistan High Court. The ostensible reason for the departure from the rule laid down by a Full Bench was that the binding precedent was not brought to the learned Judge's notice. Following the aforesaid ruling we would dismiss the appeal with costs.

Mr. Abid Hassan Minto, Advocate, who assisted us as an amicus curiae shall be paid Rs. 500 as fees.

s. A. H. Reference answered accordingly.

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