Railways Act, 1890

 

Railways Act
[IX of 1890]


Section 6(3)—

The
definition of the “Railway Administration” as above was applicable
with reference to that particular Act and there is nothing in the said Act to
show that it is one of the functions of the Railway Administration to make any
transfer of the accquired land. The authority which has been given to the
Railway Administra­tion under the said Act can be attributed to the Government
also in view of the aforesaid definition and no further.

Bangladesh
Railway and others vs Pranab Kumar Chakraborty and others 50 DLR (AD) 150.

 

Sections 72 and 76—

Suit for
damage for loss of goods consigned to the railway administ—r
ation—Administration must prove that it has taken as much care as a man of
ordinary prudence would do in respect of his goods—This when discharged by the
Administration it has no further responsibility to prove how the loss occurred.

Bangladesh
Railway vs Shambhu Nath Poddar 37 DLR 340.



 

Regulation 14—

There being
no rule or service condition that the order of dismissal of the teacher could
only be passed after a prior second show cause notice, the High Court Division
ought to have disapproved the judicial latitudinarianism indulged in by the
Appellate Court below.

Post Office
High School vs Asgar Ali 46 DLR (AD) 127.

 

Sections 72 and 76—

On
satisfactory discharge of the onus of proof by the Railway Administration
regarding goods consigned to their care onus shifts to the plaintiff to show
that in fact goods were lost due to their misconduct­There cannot be any
presumption otherwise.

Bangladesh
Railway vs Shambhu Nath Poddar 37 DLR 340.

 

Railways Act, 1890

 

Railways Act

(IX of 189O)


Secs. 55 and
56
—Railway’s
responsibility as a warehouseman in respect of goods entrusted to Its care.

Responsibility
of the Railway as a carrier may come to an end within a reasonable time after
the consignments have reached the destination, but its responsibility as a
warehouseman continues until terminated in accordance with the provisions of
sections 55 and 56 of the Railways Act.

Mr.
Kalimuddin Ahmed, Vs. Federation of Pakistan.(1979) 31 DLR 146

 

 

S.72— Duty cast
upon the Railways to prove how the loss occurred -No further obligation than
proving that reasonable precaution was taken.

D.P. Goenka
-vs- Governor General of Pak. (1955) 7 DLR 134
.

 

Consignment
of goods
-Risk-Note
A- Goods carried by longer route without consignor’s consent- Railway liable to
pay damages for deterioration of the goods.

Abdul Karim
–vs.- Federation of Pal (1959) 11 DLR 393.

 

—S.72 — Under
this section the responsibility of the Railway Administration for loss of goods
is subject to other provisions namely, that of a bailee under secs. 151,152 and
161 of the Contract Act.

I.G.N. and
Rly Co. vs. Nur Mohd. (1959) 11 DLR 389.

 

Effect
of executing Risk Notes A and B is that the onus is on the consignor to prove
misconduct on the part of the Railway – lithe proviso to Risk Note B does not
apply, the Railway is not bound to disclose how the consignment was dealt with
during the transit—By executing Risk Notes A and B. the consignor is not
estopped from giving evidence as to how the goods were packed.

Federation
of Pak. -vs- Shantilal Brijlal (1959) 11 DLR 398.

Provisions
underlying Risk Notes A and B when goods are sent by a consignor- liability of
the Railway Administration under the Risk Notes. Ibid

 

Responsibility
of Railway for loss, destruction or deterioration is to consignor only and not
to insurer of goods-No privity of contract between Railway and insurer— Letter
of subrogation obtained by insurer from consignor confers no locus standi on
insurer to sue. (1957) (1) PLR (LAH) 273.

 

Railways in
India are not common carriers and their liability in a case not affected by
contract is the liability of a bailee under the Contract Act, that is to say, a
duty to take as much care of the goods entrusted for carriage as a man of
ordinary prudence would be expected to take of his own goods. 54 CWN (DR 2) 35.

 

In a case to
which the provisos to clause (b) of sub-section (2) of section 72. Railways
Act, apply and circumstances are such that the loss occurred on account of
misconduct on the part of Railway or its servants, the Railway administration
is liable for the loss in spite of the execution of the Risk Note form B by the
consignor. (1957) (1) PLR (Lah.) 273.

 

Liability
under—
By
virtue of section 72 , 76 and 80 of that Act the Railway sued must prove that
loss was not due negligence and this proof must extend to both Railways. PLR (1960) 1 WP 409.

 

S. 72. Provisions
of the section can be invoked when there is a contract of carriage between an
individual and a foreign railway—

The
provisions of section 72 of the Railways Act (which deal with the gencr4l
responsibility of a railway administration for carriage of goods) will be
attracted if a contract of carriage between an individual or individuals and a
railway company or any question actual relationship of bailment can be spelt
out either by express or implied contract entered into between themselves or
through an agent.

A
suit, which raises such issues, cannot be dismissed in lirnine, on the ground
that the Pakistan Railway Administration cannot be sued inasmuch as cannot
constitute itself as agent of the plaintiff through the instrumentality of the
Eastern Railway (India), a foreign railway administration.

Jamal
Silicate Works vs. Pakistan (1964) 16 DLR 114
.

 

— S.72.
Railway is in the position of a bailee.

Under
section 72 of the Railways Act the Railway is in the position of bailee under
section 151 of the Contract Act a bailee is to act as a prudent man.

P.E.
Railways vs. Matiur Rahman (1968) 20 DLR 315
.

 

—S.72:
Contract may be spelt out by conduct of parties.

In
the present case the contract for carrying the goods at the siding of the mills
of the plaintiff- company has been deduced by the conduct of the parties,
particularly when the carriage of the said goods and actual delivery of the
same at the siding of the mills have been denied by the defendants.

Pakistan Vs.
Amin Jute Mills Ltd. (1973) 25 DLR 307.

 

Ss.72 and 76— Railways
having failed to prove as to how it dealt with the goods (jute) which caught
fire and was destroyed—Liable for damage.

The
Railway failed to disclose as to how they dealt with the jute made over to them
for carriage before it caught lire. On the other hand the evidence is that
Railways porter took a lamp to the wagon carrying the jute which was destroyed
by fire and, therefore, reasonable inference is that the Jute caught fire from
the lamp. This was indeed a negligence.

Thus
the evidence lends support to the claim of plaintiff that there was want of due
diligence on the part of the Railway.

The
Railway has therefore failed to prove its diligence in dealing with the jote in
question throughout the period it was in its care and custody.

Pakistan
Eastern Bengal Railway Vs. M.L. Jhawar,(1969) 21 DLR 13.

 

S.72(1):   Consignor is entitled to sue the carrier
(Railway) for any loss or damage sustained by him due to negligence or default
of the carrier but in certain circumstances a consignee who acquired title to
the property by virtue of endorsement or otherwise of any document or is a
party to the contract of consignment is also entitled to sue the carrier.

Pakistan Vs.
Messrs Adamjee Jute Mills Ldt. (1970) 22 DLR 741.

 

S. 72: Loss
caused by non-delivery and loss caused by negligence, no distinction
.

Distinction
between loss caused by non delivery or caused by negligence of the Railway as
carrier is without any significance as far as the liability under section 72 of
the Act is concerned as the responsibility of the Railway administration is
subject to the provision of section 77 of the Act.

Mr.
Kalimuddin Ahmed, Vs.Federation of Pakistan.(1979) 31 DLR 146.

Ss. 72 and
76:

Compensation for loss on account of short delivery of goods entrusted to its
care.

—Railway
servants’ misconduct inferred. The moment the goods were accepted for booking
by the Railway staff the responsibility with respect to the goods lay on the
Railway.

Rangpur D.C.
Co-operative Stores Ltd. vs. Pakistan (1964) 16 DLR (SC) 365.

 

S.75: Onus
initially on Railway unless consignor had special means of knowledge. 1954 PLR (Lah.) 424.

 

S.76: Where
Railway authority had not been able to assign satisfactory explanation for the
loss of goods delivered to them for carriage from one station to another
station, it could be inferred that they had not taken proper care of the
consignment as bailee of the goods consigned.

Statutory
setting of Risk Note B . “Misconduct”— meaning something more than negligence
simplistic and less than willful misconduct. 1956 PLR (Lah.) 836.

 

S.76. Duty cast
upon the railway to prove how the loss occurred. No further obligation than
proving that reasonable precaution was taken.

D.P. Goenka
Vs. Governor General of Pak. (1955) 7 DLR 134.

 

S.76. (See also
under section 72 above:) PLR 1960 I WP
409.

 

S. 77. Under this
section notice is to be served on the Manager of a Railway while sec. 80,
C.P.C., requires the notice under it to be left with the General Manager of the
Railway concerned.

Both
arc apparently the same as officers and hence a notice under section 77
satisfies the provisions of both section 77 and section 80 C.P.C. 1952 PLR (Kar) 75.

 

The
section also absolves the plaintiff of the onus of proving how the loss,
destruction or deterioration was caused to his goods in respect of which he
claims compensation: it leaves unaltered the plaintiffs onus of proving want of
due diligence on the part of the Railway. 1952
PLR (Kar.) 99.

 

Service of
notice under the section obligatory—
Service of notice under section 77 of the Act
is obligatory even in case of compensation for non- delivery of consignments by
the Railway.

Mr.
Kalimuddin Ahmed, Vs. Federation of Pakistan. (1979) 31 DLR 146
.

 

—S. 77—Service of
notice, notice not being served within time a suit for compensation does not
lie.

As
the plaintiffs did not serve the notice under section 77 of the Act within the
prescribed period of six months from the date of delivery of the goods their
suits were rightly dismissed.   Ibid.

—S. 77. Section 77
has no applicability where the loss occasioned is due to non delivery of goods.

If
the loss was due to destruction or deterioration as laid down in the said
section then one may say that section 77 would be applicable but if the loss is
due to non-delivery of the good the line of cases cited would show that
provisions of section 77 would not be applicable.

P.E. Railway
Vs Matiur Rahman (1968) 20 DLR 315.

—S. 77. Section 77
has no applicability where the loss occasioned is due to non-delivery of goods.
Ibid.

—S.77.
Applicability of section 77 regarding service of notice.

If
the loss was due to destruction or deterioration of goods carried by the
Railways, section 77 of the Railways Act would be applicable but if the loss is
due to non-delivery of the goods section 77 would not be applicable.

Pakistan Vs.
Amin Jute Mills Ltd. (1973) 25 DLR 307.

 

—S.77. Not
applicable where loss suffered is due to non-delivery.

Stipulation
regarding service of notice as provided in section 77, Railways Act, has no
application where loss suffered is due to non-delivery of goods by the Railways
concerned which was responsible for the goods’ safe carriage and delivery under
a contract.

Pakistan Vs.
Amin Jute Mills Ltd. (1973) 25 DLR 307.

 

—S. 80. An
individual is entitled to bring a suit for damages against the Railway to whom
the goods ac consigned or the other Railway in whose area the loss was
sustained or even against both.

Pakistan
Vs.  M/S Adamjee Jute Mills Ltd (1970) 22
DLR 741.

 

—S. 80. Goods
entrusted to a receiving Railway company, a foreign body, a Railway Company
within the Country takes charge of the goods – Latter is responsible for the
goods as bailee.

If
a finder of goods accepted the responsibility of the goods, he is placed visa-vis
the owner of the goods in the position of a bailee. Even if it could be held
that the Railway administration in India for reasons of policy or otherwise
left the wagon containing the goods within the borders of Pakistan and that the
forwarding Railway Administration took them into their custody, it would not be
denied that their responsibility in regard to the said goods would be that of a
bailee.

A
contract can be spelt out by conduct of parties by implication arising out of
circumstances in the case.

Jamal
Silicate Worker Vs. Pakistan (1964) 16 DLR 114.

 

—S.80. Section 80
Railways Act applies only to Railways and to a case where the goods transported
partly over a Railway system and partly over a steamer line. The Principles of
determining the ha. ability of common carrier for loss, or damage to property
or goods arises as soon as it is delivered to it to be carried and it is
irrelevant who delivers the same to it.

River
Steamer Navigation Vs Mohendra K. Roy (1951) 3 DLR 139.

 

—When this
section will apply.

Section
80 of the Railways Act will apply only when the different Railway systems run
though the same state.

 

—Damages –
claim for

Loss
occurred over E.B. Railway while the goods were booked in Calcutta with E.I.
Railway – Suit against E.B.Railway for loss does lie as there was no contract
with the latter for safe delivery, nor a privity of contract between the two
Railways.

Satya Ch. Datta
Vs. Federation of Pak. (1960) 12 DLR 664.

 

Per
Chowdhury, J. (Contra) —
The sovereign activity of the Crown stands absolutely on a
different footing from the commercial function undertaken by the Crown and the
State Railway is an organization standing on the same footing as any other
organization of carriers. In respect of the commercial activities of the Crown no
special privilege can be claimed so far as the suits for damages are concerned.

It
is not a question of one Sovereign State being the agent of another Sovereign
State. It is a question of a State being an agent of a private individual who
through his agent enters into contract for carrying goods for another State
Railway. So there is a privity of contract between the consignor and the
Railway of destination.

Independently
of contract, in the case the E.B. Railway being in possession of the goods and
having lost a part of it due to the negligence or misconduct of their staff, is
liable as a carrier for the short delivery.

 

An
action in tort also lies against the E.B. Railway in view of the finding that
they received the goods for carriage which were lost on transit while in their
custody due to the negligence and want of proper care or misconduct of their
staff.

Satya Ch. Dutta
vs Federation of Pak. (1960) 12 DLR 664.

 

—Extra-territorial
effect.

Section
80 of the Act at the date when Act came into force had extra-territorial effect
and this extra territorial construction of the section was to be adhered to.

By
virtue of sections 72, 76 and 80 of the Act the Railways sued must prove that
loss was not due to negligence and this proof must extend to both Railways. PLR (1960) 1 WP 409.

 

Railways
Discipline and Appeal Rules

Rule 1708,
proviso—
Discharge
by notice of a permanent servant only allowable in exceptional circumstances.

Pakistan Vs.
Azizul lslam (1964) 16 DLR 248.

 

Railway
Establishment Code

Vol.1
Appendix II.

Rule 79. Railway
authorities competent to make rules integrating two classes of Locomotive
Running Staff—Rule integrating two previous categories of Locomotive Running
Staff into one without changing scale of pay, valid.

Helaluddin
Ahmed Vs. Province of East Pakistan (1970) 22 DLR 232.

 

RAILWAYS ACT, 1890

 

RAILWAYS ACT, 1890 (IX OF 1908)

 

Section—77

Limitation—Limitation in a suit for
compensation against Railway for loss of goods—Notice must be given within the
period of limitation.

Since
there is no distinction of any loss caused by non-delivery and loss caused by
negligence of the Railway as a carrier, a notice under section 77 of the Act
must be given in all cases of claim against Railway for compensation within the
period of limitation.

Chairman,
Bangladesh Railway Board vs. Maintaz Hossain and others, 3 BLD (HCD) 143

Ref:
31 DLR 146—Cited.