The learned counsel for the appellant urged that both the Courts below found that it was a case of mis-delivery. Hence, it would amount to non-delivery. However, in the instant case it is established and admitted case of the parties that the consignment was delivered by the carrier to the consignee, viz. Binod Steels Ltd., Indore. Even plaintiff s case is that the consignment was delivered to Binod Steels Ltd., Indore. The only grievance is that the consignment was delivered against the written instruction of the consignor that without obtaining lorry receiptthe defendant should not have delivered the consignment and since this was done against the written instructions of the consignor it amounted to breach of contract, hence damage could be awarded against the defendant. It is not the case of recovery of damage on the ground of breach of contract. At the most it can be said to be negligence of the Carrier in not obtaining lorry receipt before giv-ing delivery to the consignee. But it is nobody's case that the consignment was delivered to any party other than Binod Steels Ltd. On the other hand, admitted case is that the consignment was delivered to Binod Steels Ltd. Indore. In these circumstances it is neither a case of mis-delivery nor non-delivery of the goods. If it is so then the liability of the carrier cannot be enforced in favour of the appellant. The defendant being the carrier cannot be held guilty of unjust enrichment. The carrier has not misappropriated the goods nor has delivered it to some one else and misappropriated the price thereof. On the other hand, the consignment was received by the consignee who appropriated it. Consequently the doctrine of "unjust enrichment" can be applied against Binod Steels Ltd., Indore and not against the respondent.
Gujarat High Court
Saurashtra Ceramic Ind. And Anr. vs Sadhana Transport Co. on 26 February, 1998
Equivalent citations: I (2001) ACC 466, 2000 ACJ 24, AIR 1998 Guj 178, (1998) 3 GLR 97
Bench: D Srivastava
1. This is plaintiffs' Second Appeal arising out of the following brief facts :
The plaintiffs -- appellant filed a suit for recovery of Rs. 7194.75 ps. from the defendant respondent on account of damages and interest because of non-delivery or mis-delivery of goods entrusted to the respondent for carriage and delivery.
On 16-6-1972 plaintiff No. 1 handed over consignment of goods for the purposes of deliv ery to the customer at Indore. The defendants are transporters. They took the consignment for de livery to the consignee and issued lorry receipton the same day. The lorry receipt and bills were forwarded to the Bank of India at Indore with instructions to deliver the receipt and bills to Binod Steel Limited against payment. Binod Steel Limited did not make' the payment to the Bank and ultimately the papers were returned back along with lorry receipt to the plaintiff.
There was instruction of the plaintiff to the de-
fendants to deliver the goods only on production of lorry receipt, but ignoring this direction the defendant delivered the goods to Binod Steels Ltd., Indore and failed to obtain lorry receipt.
Consequent damages and interest were claimed from the defendants.
2. The suit was contested by the defendant on the ground that the goods were supplied for carriage on telephonic message from the plaintiff and as per oral instruction of the plaintiff No. 1 the defendant wrote for direct delivery in the consignment note and kept blank the column of consignee and the name of consignee was to be filled up by the plaintiff No. 1 as they liked. In this way the consignment note was sent to the plaintiff. It was further pleaded that the consignment was delivered by the defendant to the party of Indore viz. Binod Steels as per the written instructions of the plaintiff. Hence, it is not the case of wrong delivery, misdelivery or nondelivery. On other grounds also the suit was contested, but those grounds need not be reproduced in this judgment because only one substantial question of law was formulated in this Appeal.
3. The suit was dismissed by the trial Court. An Appeal was preferred which too was dismissed. It is, therefore, this Second Appeal.
4. The only substantial question of law on which this Appeal was admitted was whether Section 10 of the Carriers Act has been rightly applied in the case on hand ?
The Lower Appellate Court has held that for want of notice under Section 10 of the Carriers Act the suit of the plaintiff cannot be decreed. The lower appellate Court further found that it was a case of mis-delivery and consequently it was a case of non-delivery of the consignment to the consignee. Hence even if there was any liability on the part of the defendant the same cannot be enforced in view of bar of Section 10 of the Carriers Act inasmuch as notice under this Section was not given to the defendant. The Lower Appellate Court has also discussed the provisions under the Railways Act as the same stood prior to the amendment of 1961 and the provision as itexisted after amendment of 1961 and also the provision of Section 10 of the Carriers Act and considering the case of the Apex Court and of this Court it was concluded that the Notice under Section 10 of the Carriers Act was required to be served before the suit could be filed by the plaintiff.
5. For proper appreciation of this question the relevant provision of the Railways Act and the Carriers Act are required to be quoted :
Section 10 of the Carriers Act reads as under :
"Notice of loss or injury to be given within six months -- No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before institution of the suit and within six months of the time wiien the loss or injury first came to the knowledge of the plaintiff."
Section 78-B of the Indian Railways Act as it stands after the amendment in Act, 1961, reads as under :
"78-B : Notification of claims to refund of overcharges and to compensation for losses - A person shall not be entitled to a refund of an overcharge in respect of animal 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....."
Before amendment of 1961 under the old Section 77 of the Indian Railways Act the word "non-delivery" was missing and it was introduced after the amendment of 1961 by enacting Section 78(B) in the Act. The plain reading and a comparative study of Section 10 of the Carriers Act and Section 78-B of the Indian Railways Act would reveal that the two provisions are not identical. Under Section 10 of the Carriers Act, the words "for the loss of, or injury to the goods "are" mentioned, that no suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him under this Section.
6. Section 78-B of the Indian Railways Act, however, provides that no suit without notice can be instituted against Railway for the loss, destruction, damage, deterioration or non-delivery of the good. Whereas Section 10 of the Carriers Act is confined only for the loss or injury to the goods. Section 78-B of the Indian Railways Act is wide enough to include for the loss, destruction, damage, deterioration or non-delivery.
7. Section 77 of the Indian Railways Act as it stood before the present amendment dealt with the case of loss, destruction, damages, deterioration or non-delivery of goods carried by railway. Thus, the provisions of Section 77 read with Section 78-B of the Indian Railways Act cannot, be equated with Section 10 of the Carriers Act. The interpretation of Sections 77 and 78-B of the Railways Act by various Courts cannot be applied for interpreting Section 10 of the Carriers Act.
8. No doubt, Railways are also carriers, but they are not governed by Carriers Act. When there is special statute, viz. Indian Railways Act, the Railways are governed by the provisions contained in that statute. The other carriers, however, would be governed by Section 10 of the Carriers Act.
9. The learned counsel lor the appellant contended that non-delivery may be of two kinds. In one case non-delivery is consequence of loss destruction, damage or deterioration to the consignments. In other case there may be non-delivery for other reasons other than the loss, destruction, damages or deterioriation and in second category of cases notice is not required either under Section 77 of the Indian Railways Act or under Section 10 of the Carriers Act. It may, however, be mentioned that Section 10 of the Carriers Act does not incorporate the word nondelivery so far. On the other hand loss or injury to the goods only are covered under Section 10 of the Carriers Act., Hence the cause of non-delivery of consignment by common carriers under Section 10 of the Carriers Act is not material. It is not the function of the Court to regulate while interpreting a particular section, on the other hand, the Court should find out the real intention of the legislature. Since there is no ambiguity in Section 10 the word 'non'-delivery' cannot be introduced by implication in the process of interpretation.
10. It cannot be said that the legislature was unconscious and accidentally omitted to mention the word non-delivery in Section 10. The intention of the legislature is clear from Section 9 of the Carriers Act as the word loss, damage or nondelivery are used therein. It is, therefore, clear that while enacting Section 9 of the Carriers Act the legislature was aware, to introduce the word non-delivery, but at the same time while enacting S. 10 it did not think it proper to introduce the word non-delivery in this Section. In this view of the matter notice under Section 10 of the Carriers Act in a case of non-delivery or misdelivery of consignment is not necessary.
11. This Court in Patel Traders v. Patel Ambaram Thakarshi, reported in 1985 (2) 26 Guj LR 740 oberved to the effect and held that Section 10 is confined to the cases of loss or damage and not to non-delivery. Hence no notice was necessary under Section 10 of the Carriers Act before filing the suit.
12. Even under the Railways Act the Supreme Court in Governor-General in Council v. Musaddi Lal, reported in AIR 1961 SC 725 observed that under Section 77 (old) the Railways cannot be held liable on the ground that in case of non delivery the notice was not served.
13. My attention was also drawn (sic) decision reported in Union of India v. M/s. K. Mansukhram & Sons., reported in (1978) 20 Guj LR 333 : AIR 1979 Gujarat 176). The bar contained in Section 78B of the Indian Railways Act is absolute, but it does not deal with non-delivery. Hence it need not be discussed in detail.
14. From the above discussion I am of the view that in case of non-delivery notice under Section 10 of the Carriers Act is not required to be served on the carrier and the suit can be filed without serving such notice.
15. It is now to be seen whether the judgment of the two Courts below require interference.
16. Learned Counsel for the appellant contended that on factual side there is finding in favour of the appellant and since the bar of Section 10 of the Carriers Act is not attracted, there was no other option, but to decree the suit. I am unable to accept this contention for the reason that it is neither a case of misdelivery nor of non-delivery. Hence even in the absence of notice there is no liability of the carrier to pay damage or interest to the consignor.
17. The learned counsel for the appellant urged that both the Courts below found that it was a case of mis-delivery. Hence, it would amount to non-delivery. However, in the instant case it is established and admitted case of the parties that the consignment was delivered by the carrier to the consignee, viz. Binod Steels Ltd., Indore. Even plaintiff s case is that the consignment was delivered to Binod Steels Ltd., Indore. The only grievance is that the consignment was delivered against the written instruction of the consignor that without obtaining lorry receiptthe defendant should not have delivered the consignment and since this was done against the written instructions of the consignor it amounted to breach of contract, hence damage could be awarded against the defendant. It is not the case of recovery of damage on the ground of breach of contract. At the most it can be said to be negligence of the Carrier in not obtaining lorry receipt before giv-ing delivery to the consignee. But it is nobody's case that the consignment was delivered to any party other than Binod Steels Ltd. On the other hand, admitted case is that the consignment was delivered to Binod Steels Ltd. Indore. In these circumstances it is neither a case of mis-delivery nor non-delivery of the goods. If it is so then the liability of the carrier cannot be enforced in favour of the appellant. The defendant being the carrier cannot be held guilty of unjust enrichment. The carrier has not misappropriated the goods nor has delivered it to some one else and misappropriated the price thereof. On the other hand, the consignment was received by the consignee who appropriated it. Consequently the doctrine of "unjust enrichment" can be applied against Binod Steels Ltd., Indore and not against the respondent.
18. In View of this the suit was rightly dismissed though on erroneous ground; Likewise the appeal was also rightly dismissed though on erroneous ground. There is thus no ground for interference in this Second Appeal. The Appeal is accordingly dismissed with costs.
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