Lokur, J.
1. This appeal arises out of a test suit filed by a pleader of Pandharpur to recover Rs. 17-11-0 by way of damages for discomfort and worry caused to him when he had to travel in a Pilgrim Traffic Vehicle of the Barsi Light Railway Company from Kurduwadi to Pandharpur to attend the Kartiki fair in November 1939. The plaintiff purchased a third class concession ticket from Dhulia to Pandharpur on November 20, 1939, and travelled by the G.I.P. Railway as far as Kurduwadi, and there he had to change over to the Barsi Light Railway; but he found that there was no room in any of the third class compartments and he was asked to sit in a goods wagon described as 'Pilgrim Traffic Vehicle'. He further found that that vehicle was marked with the words 'bags only' and was overcrowded. He then made a complaint to the respective Station Masters at every station on the way as far as Pandharpur and took their signatures on a copy of the complaint which he had preserved for himself. He filed this suit for damages to assert his right to travel by the usual third class compartment.
2. The main facts are not in dispute. The trial Court found that the plaintiff had to suffer 'much mental and bodily agony, discomfort and inconvenience during his travel from Kurduwadi to Pandharpur due to the over-crowding and due to the carrying of him through the Pilgrim Traffic Vehicle'. It held that by selling a third class passenger ticket to the plaintiff the Barsi Light Railway Company, Ltd., entered into a contract with him that it would take him in a third class compartment as far as Pandharpur, and by requiring him to sit in a Pilgrim Traffic Vehicle it had committed a breach of the contract. But instead of awarding the damages demanded by the plaintiff, it awarded to him only the difference between the third class fare between Kurduwadi and Pandharpur and the charge for goods of his weight to be carried in a goods wagon between those two stations. The difference amounted to Rs. 0-7-0 and the plaintiff was awarded that amount together with Rs. 3 as notice charges and 9-annas as interest, total Rs. 5. The plaintiff had also impleaded Government representing the G.I.P. Railway Co., but as that company had nothing to do with the alleged breach of the contract, the decree was passed only against the Barsi Light Railway Co. Ltd. In appeal, the learned District Judge held that there was no breach of contract on the part of the railway company and that the remedy sought by the plaintiff was misconceived. The appeal was, therefore, allowed and the plaintiff's suit was dismissed with costs throughout.
3. The plaintiff's claim was founded on two grounds, viz. that the railway company had agreed to take him as far as Pandharpur in a compartment which is commonly known as 'third class compartment' and which has certain comforts and amenities, and that those comforts and amenities were absent in the Pilgrim Traffic Vehicle in which he had to travel for want of room elsewhere on the train. Section 67 of the Indian Railways Act is a complete answer to this contention. Sub-section (1) of that section says: -
Fares shall be deemed to be accepted, and tickets, to be issued, subject to the condition of there being room available in the train for which the tickets are issued.
4. It is true that when the railway company accepted the third class fare from the plaintiff and issued a third class ticket to him from Dhulia to Pandharpur, it agreed to allow him to travel in a third class compartment as usual as far as Pandharpur. But no rule has been framed laying down the description of a third class compartment. According to the evidence, a third class compartment is the lowest kind of compartment for passengers, and during the rush at the time of the Kartiki fair at Pandharpur it would be unreasonable to expect the same kind of amenities to be available to the passengers as in normal times. As observed in Jones v. Great Northern Railway Company (1918) 34 T.L.R. 467 :
Although in normal times the plaintiff might succeed, yet the passenger's contract must be affected by the existing conditions of railway travel, and by the inability of the railway companies owing to Government action to give, at all times, the pre-war accommodation, and that there was no obligation on the part of the railway companies to give that pre-war accommodation. The only duty of the companies was to give such accommodation as they could and the passenger had no legal ground of complaint for inconvenience or discomfort from overcrowding in the circumstances mentioned.
5. This is a correct statement of the company's contractual obligation. The real question is Whether under the existing conditions reasonable accommodation was afforded to the plaintiff, and the standard of reasonableness varies with the circumstances existing at the time when the contract is entered into. In fact by reason of shortage of third class compartments that were usually run by the company, the Agent and Chief Engineer of the company wrote to the Secretary, Railway Board, Delhi, that he had designed 'Special Pilgrim Vehicles' to take the place of some of the third class coaches and pointed out that the new type of vehicle had the advantage that when not required for carrying passengers it could be used for carrying food grains or oil seeds in bags. He sent the specification of the proposed new type of vehicle and requested sanction for its adoption on the railway in the place of some of the third class coaches. His suggestion was accepted and sanction was given to the use of such Pilgrim Traffic Vehicles instead of the usual third class compartments whenever necessary. It is true that this sanction was not published in the Tariff but it was well-known that such Pilgrim Traffic Vehicles were running between Kurduwadi and Pandharpur on the occasions of the fairs at Pandharpur. The learned District Judge has pointed out that the plaintiff knew very well when he purchased the ticket that he might have to travel in such a Pilgrim Traffic Vehicle, and yet when he was asked to occupy such a vehicle he made a protest and took care to lodge a complaint to the Station Master. He now complains that the vehicle in which he was made to sit was overcrowded. But he never made that complaint to any of the Station Masters. The original copy of the complaint which he preserved for himself and on which he took the signatures of the Station Masters at every Station has been produced at Exhibit 30, and all that he stated therein was:-
I am a holder of a third class single fare return ticket No. 060 Ex. Dhulia to Pandharpur. Instead of providing me with a third class coaching vehicle, your Company offered me goods wagon to sit in. Please note that I am travelling in Wagon No. P.T. 73 'Bags only' of 4 Down train under protest.
He made no complaint to any of the Station Masters that the wagon in which he was sitting was overcrowded. On the contrary, the Assistant Station Master at Lavul, exhibit 39, has given evidence that when a complaint like exhibit 30 was handed over to him, he went along with a guard to the compartment occupied by the plaintiff. There he found that it was not overcrowded. He told him then that if he wanted, he would secure for him a seat in the third class compartment and also showed him the public notice published under the orders of the company that third class passengers would have to travel in Pilgrim Traffic Vehicles. But the plaintiff refused to accept the offer and told him that he would sit in the Pilgrim Traffic Vehicle as he wanted to make a test case. The contract evidenced by the sale of the third class ticket to the plaintiff was subject to the provisions of Section 67, and as held in Manendra Chandra v. E.I.R. Co. : AIR1927Pat352 that section not only operates in the case where there are compartments of a particular class available but there is no room in those compartments, but it also extends to a case where there is no compartment of that class at all, so that even if there was no regular third class compartment to be offered to the plaintiff, his only remedy was to refuse to travel by the Pilgrim Traffic Vehicle and ask for a refund of the fare within three hours after the departure of the train as provided by Sub-section (2) of Section 67.
6. Another complaint made in this Court is that under Section 63 of the Act the railway company was bound to fix the maximum number of passengers which might be carried in each compartment of every description of carriage, and the Pilgrim Traffic Vehicle in which he had to travel had no such maximum number fixed. It is true that if that vehicle was to be used for carrying passengers, then it would be called a carriage as distinct from a truck or wagon and it was incumbent on the company to fix the maximum number of passengers to be carried in it. The omission to do so would render the Company liable to pay a penalty to Government under Section 93. But it is argued that as the maximum number of passengers was not fixed the plaintiff could not prevent other passengers from entering into his vehicle, as he could otherwise have done under Section 109 of the Act. There is a good deal of force in this contention, but it is of no avail to the plaintiff in this case as the Assistant Station Master of Lavul says that the vehicle could easily accommodate 45 persons and was not overcrowded. The complaint that there were no benches or lavatories in the vehicle does not give rise to any cause of action to the plaintiff since the Railway Company had, not undertaken to supply benches or lavatories in the Pilgrim Traffic Vehicles.
7. I, therefore, agree with the view taken by the lower appellate Court and dismiss the appeal with costs.