# The Union of India & Anr v. Sri Awadhesh Kumar Agarwal

- **Citation:** Second Appeal No. 540 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-20
- **Case number:** Second Appeal No. 540 of 1991
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-union-of-india-anr-v-sri-awadhesh-kumar-agarwal-46342
- **Pages:** 8

## Headnote

A. Civil Law-Indian Railways Act, 1890 -
Section 78-B - Compensation - Service of
Notice - Limitation of time - Object - Purpose
of the notice is to enable the Railway authorities
to make an expeditious and meticulous enquiry
into the nature and bonafides of the claim for
compensation - It would prevent stale claims
from being raised to the detriment to the
Railway authorities - A bonafide claim would
also encourage resolution of disputes without
recourse to frivolous litigation - There is a
strong public interest element involved in this
provision. (Para 22, 23 and 24)
B. Interpretation of Statute - Liberal
construction - Pedantic approach - Statutory
period of six month for service of notice - Held,
in view of the purpose of the the enactment, the
notice under Section 78B of the Indian Railways
Act, 1890, has to be construed in a liberal
manner and a pedantic approach has to be
eschewed. (Para 26)
C. Civil Law-Indian Railways Act, 1890 -
Section 140 - Mode of Service - Multiple or
Exclusive - A combined reading of Sections 78B
and 140, show that no exclusive mode for
service of notice has been provided in the
statute. The service can be made by multiple
modes as described in the said provision - The
phrase 'may be served' in Section 140 manifests
the permissive intent of the legislature in regard
to the mode of service and conferment of the
option of choosing the mode of service upon the
claimant - The legislature accords primacy to
the fact of effective service of notice over the
method of service. (Para 33, 34 and 36)
Appeal dismissed (E-1)
Cases relied on :-

## Text

3-5 All. The Union of India & Anr. Vs. Sri Awadhesh Kumar Agarwal
1435
(2020)03-05ILR A1435
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 540 of 1991

The Union of India & Anr. ...Appellants
Versus
Sri Awadhesh Kumar Agarwal
 ...Respondent

Counsel for the Appellants:
Sri S.N. Agarwal, Sri Devendra Tripathi

Counsel for the Respondent:
Sri Sri Dhan Prakash, Sri Rakesh Kumar
Garg

A. Civil Law-Indian Railways Act, 1890 -
Section 78-B - Compensation - Service of
Notice - Limitation of time - Object - Purpose
of the notice is to enable the Railway authorities
to make an expeditious and meticulous enquiry
into the nature and bonafides of the claim for
compensation - It would prevent stale claims
from being raised to the detriment to the
Railway authorities - A bonafide claim would
also encourage resolution of disputes without
recourse to frivolous litigation - There is a
strong public interest element involved in this
provision. (Para 22, 23 and 24)
B. Interpretation of Statute - Liberal
construction - Pedantic approach - Statutory
period of six month for service of notice - Held,
in view of the purpose of the the enactment, the
notice under Section 78B of the Indian Railways
Act, 1890, has to be construed in a liberal
manner and a pedantic approach has to be
eschewed. (Para 26)
C. Civil Law-Indian Railways Act, 1890 -
Section 140 - Mode of Service - Multiple or
Exclusive - A combined reading of Sections 78B
and 140, show that no exclusive mode for
service of notice has been provided in the
statute. The service can be made by multiple
modes as described in the said provision - The
phrase 'may be served' in Section 140 manifests
the permissive intent of the legislature in regard
to the mode of service and conferment of the
option of choosing the mode of service upon the
claimant - The legislature accords primacy to
the fact of effective service of notice over the
method of service. (Para 33, 34 and 36)
Appeal dismissed (E-1)
Cases relied on :-
1. Jetmull Bhojraj Vs. Darjeeling Himalayan
Railway Co. Ltd. & ors., AIR 1962 SC 1879
2. A. Mahadeva Aiyar Vs. The South Indian
Railway Company Ltd. AIR 1922 Mad 362 : 1921
SCC OnLine Mad 140,
(Delivered by Hon'ble Ajay Bhanot, J.)

1. This second appeal arises out of the
judgment and decree dated 23.11.1990
rendered in Civil Appeal No. 03 of 1987,
Awadhesh Kumar Agarwal Vs. Union of
India and another, by learned Special
Judge, Essential Commodities Act, Etah,
which reverses the judgment and decree of
the learned trial court/ learned Additional
Civil Judge, Etah in Original Suit No. 15 of
1984, (Awadhesh Kumar Agarwal Vs.
Union of India and another), dated
05.08.1986.

2. The instant second appeal has been
instituted by the defendants in the civil suit.

3. The plaintiff-respondent brought
civil proceedings, registered as Original
Suit No. 15 of 1984, (Awadhesh Kumar
Agarwal Vs. Union of India and another),
seeking compensation for damage caused
to goods by the negligence of the Railway
authorities. The learned trial court by
judgment and decree dated 05.08.1986 had
dismissed the suit of the plaintiff on the
foot that the notice dated 21.07.1981 sent
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
by the plaintiff, under Section 78B of the
Indian Railways Act, 1890, was not served
upon the Railway authorities within the
time stipulated under the said provision.

4. The plaintiff took the judgment and
decree of the learned trial court in appeal.
The appeal was registered as Civil Appeal
no. 03 of 1987, Awadhesh Kumar. Vs.
Union of India and another.

5. The only point formulated for
determination and argued before the
learned first appellate court was whether
the notice under Section 78B of the Indian
Railways Act was lawful and within the
statutory time limit prescribed in the
provision. The findings of the appellate
court are set forth hereinafter.

6. The learned appellate court in its
judgment took judicial notice of the fact
that a telegram is delivered within 24 hours
of its dispatch. If the distance between the
two places, namely, place of dispatch and
the point of receipt is very far, at the
outside the telegram will be received by the
addressee within 48 hours.

7. Admittedly, the telegram was
sent by the plaintiff on 21.07.1981. Six
months period from the date of delivery
of the goods for carriage to the
railways,
were
set
to
expire
on
25.07.1981. The appellate court noticed
the statement on oath given by the
plaintiff in regard to timely service of
the telegram and also the failure of the
defendant-appellant to refute the same.
The appellate court then opined that in
the
normal
course
of
things,
the
telegram would reach its destination
within 24 hours after the same was
booked for dispatch by the plaintiffrespondent. There was no reason to take
a different view in this case.

8. The endorsement made by the
railway employees of the Gorakhpur
Office of the Railways on the telegram
that
the
same
was
received
on
28.07.1981, was disbelieved by the
learned appellate court. The learned
appellate
court
found
against
the
Railways (defendant-appellant), that on
the basis of such endorsement, it cannot
be concluded that the telegram did not
reach its destination in the time.

9. Consequently, the learned
appellate court found that it cannot be
said that the plaintiff did not submit his
claim within time.

10. The learned appellate court then
delved into the legal obligations of the
postal authorities, after a telegram is
submitted to them for dispatch. The Posts
and
Telegraph
Departments
became
responsible for timely dispatch of the
telegram after the signature and deposit of
prescribed expenses for telegraph services.
In light of such legal obligations of the
postal authorities also the plaintiff cannot
be fastened with for delay on the part of the
postal authorities.

11. The learned appellate court finally
concluded that the date on which the letter
were delivered to the postal department for
dispatch,
along
with
the
prescribed
expenses would be the date of service of
the notice for the claim. The plaintiffrespondent had delivered telegram for
dispatch after payment of prescribed
expenses on 21.07.1981. Hence, it would
be presumed that the claim was also
submitted by the plaintiff on like date i.e.
3-5 All. The Union of India & Anr. Vs. Sri Awadhesh Kumar Agarwal
1437
21.07.1981, which was well within the
statutory time limit for the notice.

12. The contents of the notice were
also noticed by the learned appellate court.
The telegraphic communication records the
date and number of the Bilti. The
consignment of goods was identified with
full particulars in the notice. The amount of
loss
and
the
demand
/claim
of
compensation
is
also
stated
in
the
communication sent by the telegram.

13. After looking to the said recitals
in the telegram, the learned first appellate
court found that the substance of the claim
for compensation was mentioned in the
telegram. In this manner, the telegram
satisfied the ingredients of Section 78B of
the Indian Railways Act.

14. In the wake of these enquiries, the
first appellate court found that the claim
sent by the plaintiff-respondent was within
prescribed time and the notice conformed
to the requirements of Section 78B of the
Indian Railways Act, 1890.

15. The learned first appellate court
allowed the appeal of the plaintiff and set
aside the judgment and decree dated
05.08.1986 of the learned trial court. The
suit of the plaintiff for Rs. 9,740.50/- along
with costs was decreed in favour of the
plaintiff-appellant by the learned appellate
court.

16. Aggrieved by the judgment of the
learned appellate court, the defendantrespondent, namely, Union of India,
instituted the instant second appeal before
this Court.

17. Shri Devendra Tripathi, learned
counsel for the appellant submits that the
learned first appellate court erred in law
and misinterpreted the provisions of
Section 78B read with Section 140 of the
Indian Railways Act, 1890. Learned
counsel for the appellant contended that on
account of such incorrect interpretation, the
notice which was ineffective and time
barred was found to be valid and within
time prescribed by the first appellate court.

18. Shri Rakesh Kumar Garg, learned
counsel for the respondents submits that all
the ingredients of Section 78B were
satisfied. The contents of notice were
consistent with Section 78B of the Indian
Railways Act, 1890. Further the notice was
within time and cannot be held to be
outside the period of limitation.

19. The learned counsels for both the
parties agree that the following substantial
question of law arises for consideration in
appeal:

"1. Whether the notice dated
21.07.1981 conformed to the requirements
of Section 78B of the Indian Railways Act
and was served within the time stipulated
therein, and in a manner provided in the
said provision read with Section 140 of the
Indian Railways Act, 1890?"

20. A claim to compensation for loss
caused by the Railways has to be preceded
by a notice of such claim under Section
78B of the Indian Railways Act, 1890 (as
amended from time to time) to the
competent authorities described in the
aforesaid provision. The service of such
notice has to be made in the manner
provided under Section 140 of the Indian
Railways Act, 1890.

21. Thus, the combined reading of
Section 78B and Section 140 of the Indian
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
Railways Act, 1890 (as amended from time
to time), provides the conditions precedent
and the statutory scheme for instituting and
processing of claims to compensation for
losses. Section 78B provides for the notice
in the following terms:

"78B. Notification of claims to
refunds
of
overcharges
and
to
compensation for losses. A person shall
not be entitled to a refund of an overcharge
in respect of animals or goods carried by
railway or to compensation for the loss,
destruction, damage, deterioration or nondelivery of animals or goods delivered to
be carried, unless his claim to the refund or
compensation has been preferred in writing
by him or on his behalf

(a) to the railway administration
to which the animals or goods were
delivered to be carried by railway, or

(b) to the railway administration
on whose railway the destination station
lies, or the loss, destruction, damage or
deterioration occurred, within six months
from the date of the delivery of the animals
or goods for carriage by railway :

Provided that any information
demanded or inquiry made in writing from,
or any complaint made in writing to, any of
the
railway
administration
mentioned
above by or on behalf of the person within
that said period of six months regarding the
non-delivery or delay in delivery of the
animals or goods with particulars sufficient
to identify the consignment of such animals
or goods shall, for the purposes of this
section, be deemed to be a claim to the
refund or compensation."

22. The purpose of the notice
contemplated under Section 78B of the Indian
Railways Act, 1890, is to enable the Railway
authorities to make an expeditious and
meticulous enquiry into the nature and bonafides
of the claim for compensation. This enquiry
would aid the Railway authorities in determining
whether the loss for which compensation is
being claimed was occasioned by negligence of
the Railway employees or agents of the
Railways and the extent of the responsibility of
the Railways to pay such compensation.

23. A specific time period prescribed in
Section 78B of the Indian Railways Act, 1890,
for a notice for compensation, would prevent
stale claims from being raised to the detriment to
the Railway authorities. The Railway authorities
will be hard put to entertain claims submitted
after inordinate delay as evidence would be lost
to time and remembrance.

24. A bonafide claim would also
encourage resolution of disputes without
recourse to frivolous litigation. There is a strong
public interest element involved in this provision.
Fictitious claims and frivolous litigation make an
unnecessary drought on the time of the courts
and are a drain on the public exchequer.

25. The purpose of the notice is not to
deprive a bonafide claimant of his/her legitimate
claim but to assist the process of determining
both the correctness and the quantum of such
claim. The provision also offers a protection to
the Railways against fraudulent claims.

26. In this wake, the notice under Section
78B of the Indian Railways Act, 1890, has to be
construed in a liberal manner and a pedantic
approach has to be eschewed. The effective
service of the notice in the time period stipulated
in the statute, is of course a mandatory
requirement before Courts can consider the claim
on its merits.

27. The fundamental ingredients of such a
notice, as set out under Section 78B of the Indian
Railways Act, 1890, is that the claim should be
preferred in writing. The section also requires
3-5 All. The Union of India & Anr. Vs. Sri Awadhesh Kumar Agarwal
1439
that claim must be preferred strictly within the
time period mentioned in it. The notice should
contain a claim for damages. There is no
requirement for a specific sum for compensation
to be denoted in the notice. The notice has to be
served upon the competent authority described in
the provision.

28. At this stage, it is pertinent to
mention here that Section 78B of the Indian
Railways Act, 1890, was inserted by
amending Act No. 39 of 1961 in the Indian
Railways Act, 1890. The corresponding old
section or precursor of Section 78B of the
Indian Railways Act, 1890, was Section 77
which ran as follows:

"77. Notification of claims to
refunds
of
overcharges
and
to
compensation for losses. A person shall
not be entitled to a refund of an overcharge
in respect of animals or goods carried by
railway or to compensation for the loss,
destruction, damage, deterioration or nondelivery 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 to the
railway administration within six months
from the date of the delivery of the animals
or goods for carriage by railway."

29. A perusal of amended Section
78B of the Indian Railways Act, 1890,
and its precursor Section 77 of the
Indian Railways Act, 1890, shows the
nature of the notice in both the
provisions essentially remains the same.
The amendments in regard to the notice
made under Section 78B of the Indian
Railways Act, 1890, only provide for
certain additional railway authorities to
whom the notice is to be preferred and
also
incorporates
communications
which are deemed to be valid notices
under Section 78B of the Indian
Railways Act, 1890.

30. The scope and purpose of
Section 77 of the Indian Railways Act,
1890, discussed in the preceding part of
the narrative, finds support in authority
of old standing. The authority can be
safely applied to this case as well.

31. The Hon'ble Supreme Court in
Jetmull
Bhojraj
Vs.
Darjeeling
Himalayan Railway Co. Ltd. and
Others, reported at AIR 1962 SC 1879,
considered the scope of the notice under
Section 77 of the Indian Railways Act,
1890. In Jetmull Bhojraj (supra), the
Hon'ble Supreme Court consolidated
and distilled the authorities handed
down by the various High Courts in
regard to the requirements of a notice
under Section 77 of the Indian Railways
Act, 1890. Being in agreement with
such authorities, adopted the same in
their entirety by holding thus:

"20.The first question to which
we address ourselves is whether the
appellant
had
complied
with
the
requirements of Section 77 of the Railways
Act. The relevant portion of that section
reads thus:

"A person shall not be entitled to
compensation for the loss, destruction or
deterioration of goods delivered to be so
carried unless his claim to compensation
has been perferred in writing by him or on
his behalf to the Railway administration
within six months from the date of the
delivery of the goods for carriage by
railway."

The High Courts in India have
taken the view that the object of service of
notice under this provision is essentially to
enable the Railway administration to make
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
an enquiry and investigation as to whether
the loss, destruction or deterioration was
due to the consignor's laches or to the
wilful neglect of the Railway administration
and its servants and further to prevent stale
and possibly dishonest claims being made
when owing to delay it may be practically
impossible to trace the transaction or check
the allegations made by the consignor. In
this connection we may refer to a few of the
decisions.
They
are:Shamsul
Huqv.Secretary of State[ILR 57 Cal 1286]
;A. Mahadeva Ayyarv.S.I. Railway[R 45
Mad 135 (FB)] ;Governor-General-inCouncilv.Gouri Shankar Mills Ltd., [ILR
28 Pat 178 FB] ;Meghaji Hirajee &
Co.v.Bengal Nagpur Railway[(1939) Nag
141] . Bearing in mind the object of the
section it has also been held by several
High Courts that a notice under Section 77
should be liberally construed. In our
opinion that would be the proper way of
construing a notice under that section. In
enacting the section the intention of the
legislature must have been to afford only a
protection to the Railway administration
against fraud and not to provide a means
for depriving the consignors of their
legitimate claims for compensation for the
loss of or damage caused to their
consignments during the course of transit
on the Railways."

32. The mode of service of notice on
railway administration is provided under
Section 140 of the Indian Railways Act, 1890.
The provision being relevant to the controversy
is extracted hereunder:

"140. Service of notices on railway
administration. Any notice or other document
required or authorised by this Act to be served
on a railway administration may be served, in
the case of a railway administered by the
Government, on the Manager or the Chief
Commercial superintendent and, in the case of
a railway administered by a railway company,
on the Agent in India of the railway company--

(a) by delivering the notice or other
document to the Manager or the Chief
Commercial Superintendent or Agent; or

(b) by leaving it at his office; or

(c) by forwarding it by post in a
prepaid letter addressed to the Manager or the
Chief Commercial Superintendent or Agent at
his office and registered under the Indian Post
Office Act, 1898 (VI of 1898)."

33. A combined reading of Sections 78B
and 140 of the Indian Railways Act, 1890,
show that no exclusive mode for service of
notice has been provided in the statute. The
service can be made by multiple modes as
described in the said provision.

34. The phrase "may be served" in
Section 140 of the Indian Railways Act, 1890,
manifests the permissive intent of the legislature
in regard to the mode of service and conferment
of the option of choosing the mode of service
upon the claimant.

35. Section 140(a) of the Indian Railways
Act, 1890, contemplates service of notice "by
delivering the notice" to the competent officials
named therein. Section 140(b) of the Indian
Railways Act, 1890, visualises service "by
leaving it at his office". The amplitude of the
provision allows service to be made in diverse
forms. The claimant may adopt any of the
methods of service according to his preference.
However, the fact of effective service is an
imperative requirement.

36. Clearly the legislature accords
primacy to the fact of effective service of
notice over the method of service.

37. The view taken by by this Court
in regard to the scheme of Section 140 read
3-5 All. The Union of India & Anr. Vs. Sri Awadhesh Kumar Agarwal
1441
with Section 78B of the Indian Railways
Act, 1890, can be reinforced by good
authority.

38. A Full Bench of the Hon'ble
Madras High Court in A. Mahadeva Aiyar
Vs. The South Indian Railway Company,
Limited, reported at AIR 1922 Mad 362 :
1921 SCC OnLine Mad 140, while
considering the scope of Section 140 of the
Indian Railways Act, 1890, held thus:

"12...Section 140refers to three
modes by which service may be effected,
namely (1) delivery of the notice to the
Manager or Agent personally, (2) leaving it
at his office and (3) sending it by registered
post. The second and third methods are not
peisonal service but a person is relieved
from further liability if he leaves the notice
at the Agent's office or sends it by
registered post, even if the notice for some
reason does not actually come into the
Agent's hands.. The object of the section is
to see that the company gets notice and
there is no magic in the methods provided
for by the section to see that it reaches him,
if as a matter of fact the notice comes into
his hands. Supposing the plaintiff adopts
the method of sending the notice by post
without registration and the Agent admits
receipt of the notice which is otherwise
valid, there is no reason for holding that
non-registration is such a vital defect that it
invalidates the notice. The Code of Civil
Procedure provides for modes of service of
summons and notices. I do not think it can
be said that where a party without
objection receives and admits receipt of the
summons or notice, he can fail to appear
and plead the mode by which he received
the process as an excuse.

So far as notices of action are
concerned the substantial point is whether
they reached the person to whom the law
requires notice to be given; and the method
by which he received it is a matter which is
of
comparative
unimportance
and
a
deviation from the methods prescribed in
the section will in my opinion be only an
irregularity."

39. The plaintiff chose the mode of
service of notice by sending a telegraph.
Notices
or
communications
sent
by
telegraph, are covered under the Indian
Telegraph Act, 1885, as well as the Indian
Evidence Act, 1872. This mode of service
clearly comes within the ambit of Section
140(a) and 140(b) of the Indian Railways
Act, 1890.

40. The mode of service adopted by
the plaintiff-respondent to serve the notice
upon
the
appellant-respondent/railway
authorities,
was
a
lawful
mode
as
contemplated under the Indian Railways
Act,1890.

41. The learned appellate court has
found that the notice contemplated under
Section 78B of the Indian Railways Act,
1890, was served upon the competent
authority on 21.07.1981. The last date of
service of notice in terms of Section 78B of
the Indian Railways Act, 1890, was
25.07.1981. The contents of the notice as
recorded by the learned appellate court
have been noticed earlier.

42. The above findings of fact
returned by the learned first appellate
court have been extracted in extenso in
the earlier part of the narrative. The
findings of fact are beyond reproach
and are based upon material and the
evidence in the record. These findings
of fact are also supported with cogent
reasons.
1442 INDIAN LAW REPORTS ALLAHABAD SERIES

43. Applying the aforesaid findings of
fact to the statutory scheme explained
hereinabove, this Court finds that the notice
for claim under Section 78B of the Indian
Railways Act, 1890, was served upon the
competent railway authority within the
statutory period of six months from the date
of the delivery of the consignment. The
notice
contained
the
demand
for
compensation as contemplated in the
provision. The notice clearly identifies the
goods with sufficient particulars to enable
the railway authorities to undertake any
necessary enquiry in that regard.

44. In this manner, the service of the
notice upon the Railway authorities was
valid and within the time period prescribed
under Section 78B of the Indian Railways
Act,1890. Further, the ingredients of a
notice as required under Section 78B of the
Indian Railways Act, 1890, are satisfied by
the notice dated 21.07.1981 sent by the
plaintiff-respondent.

45. The service of such a valid notice
with the stipulated time period is a
precondition for success of any claim for
compensation. The service of a valid notice
in the manner prescribed by law, has been
established. The claim of the plaintiffrespondent for compensation is liable to be
allowed and was rightly granted by the
learned first appellate court.

46. The substantial question of law is
answered as follows.

"The notice under Section 78B of
the Indian Railways Act, 1890, contained
the necessary ingredients in a valid notice
for compensation and was also served in a
lawful manner and within the time frame
prescribed in Section 78B of the Indian
Railways Act, 1890. The notice was fully
consistent with the requirements of Section
78B read with Section 140 of the Indian
Railways Act, 1890, and cannot be faulted
in any manner."

47. The substantial question of law
having been answered in favour of the
plaintiff-respondent
and
against
the
appellant, the judgment and decree of the
learned first appellate court is liable to be
upheld.

48. The judgment and decree dated
23.11.1990 rendered by the learned Special
Judge, Essential Commodities Act, Etah, in
Civil Appeal No. 03 of 1987 (Awadhesh
Kumar Agarwal Vs. Union of India and
another) is affirmed.

49. The second appeal is dismissed.
----------
(2020)03-05ILR A1442
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

FAFO No. 860 of 1996
connected with
FAFO No. 3375 of 2009

Netrapal Singh ...Appellant
Versus
U.P.S.R.T.C. & Anr. ...Respondents

Counsel for the Appellant:
Sri Yogendra Pal Singh

Counsel for the Respondents:
Sanjeev Kumar Yadav

A. Civil Law-Motor Vehicle Act, 1988 -
Contributory Negligence - Comparative Liability
of heavy and light motor - Held, the liability of
the
heavy
vehicle
is
more.
(Para
12)