The Judgment of the Court was delivered by

P.N Mookerjee, J.:— This Rule is directed against a decree passed by the learned Subordinate Judge of Burdwan in Small Cause Court Suit No. 134 of 1951 allowing in part the plaintiffs' claim for compensation against the defendant Railway. The claim arose out of damages alleged to have been caused to a part of a consignment of biri tobacco booked at Station Vadtal for carriage and delivery to the plaintiffs at Burdwan. The booking was under Risk Notes A and B and the usual defences were taken by the petitioner Railway denying misconduct, claiming protection under the Risk Notes and alleging non-service of the statutory notices. It was further pleaded that the plaintiffs' claim was excessive and was also barred by limitation. The learned Subordinate Judge overruled the defence contentions and decreed the plaintiffs' suit He, however, disallowed the plaintiffs' claim for interest. Against the decree passed as aforesaid, the defendant Railway obtained the present Rule.

2. In support of the Rule, Mr. Bhabesh Narayan Basu, urged three points. He challenged the finding of the learned Subordinate Judge on the question of misconduct, contended also that there was no proper service of notice under section 77 of the Indian Railways Act and finally that the plaintiffs' suit was time-barred. Upon the first point, Mr. Basu drew our attention particularly to the decision of this court in the case of Ralliaram Dingta v. The Governor General of India in Council (1) (48 C.W.N 554) and submitted that in the light of the observations contained in that judgment the learned Subordinate Judge's finding against the petitioner on the question of misconduct could not be sustained. On the above basis Mr. Basu claimed full protection for his client against the plaintiffs' claim, made in the suit, under the Risk Notes, referred to above.

3. It was next argued by Mr. Basu that there was, in the present case, no proper service of notice under section 77 of the Indian Railways Act. It was not and, indeed, it could not be denied that a notice under that section had been sent to the Railway in time but the contention, put forward by Mr. Basu, was to the effect that as it was sent to the Chief Commercial Manager and not to the General Manager, the service was not a proper service in law. For this proposition strong reliance was placed on the recent decision of this court reported in 55 C.W.N 662 [Union Of India…Defendant, v. Indumati Saha…Plaintiff, Opposite Party. (2)].

4. The petitioners' third contention was that, in any event, the plaintiffs' claim was barred by limitation, the suit having been instituted on the 5th November, 1951, although delivery wad taken by the plaintiffs opposite parties on the 1st September, 1950, On this plea of limitation Mr. Basu's argument was that the Article of the Limitation Act applicable to the present case being admittedly Article 30 which allowed a period of one year, from the date “when the loss or injury” occurred, that is, one year from the date of delivery to the plaintiffs, at the latest, for institution of the suit, the time for such institution in the present case expired, in the first instance, oh the 1st of September, 1951 at the latest, and, the plaintiffs being entitled to a deduction or extension of two months under section 15(2) of the Indian Limitation Act on account of the statutory notice of suit which had to be given and was given under section 80 of the Code of Civil Procedure, the very last date of filing the suit was November 1, 1951, but, the suit having been filed admittedly on November 5, 1951, it was clearly time-barred.

5. The points, raised by Mr. Basu, are mainly of a technical character and, although we would not say that all of them are wholly without substance, so far at least as technicalities are concerned, we are not inclined to interfere in this Rule on technical grounds, even if they were in the petitioner's favour, as the plaintiffs' claim, to the extent that it has been allowed by the learned Subordinate Judge, appears to be quite a just claim on the merits and as, accordingly, by the decision, complained against in this Rule, substantial justice appears to have been done between the parties.

6. The learned Subordinate Judge found as a fact that the damage to the tobacco was caused by rain water penetrating through the crevices of the flap doors on both sides of the wagon. He also found that the bags in question were placed by the sides of the flap doors and not away from them by the railway staff although it was known to, at least, it ought to have been realised by, the railway authorities that rain being usual at the time of the year when the consignment was being carried, the tobacco was likely to be damaged by rain water if placed near the flap door. On these findings, the learned Subordinate Judge held the Railway guilty of negligence amounting to misconduct and disentitling them to any protection under the Risk Notes.

7. It was urged before us that the negligence, found above, would not satisfy the test of misconduct as laid down in the case cited, namely, (1) 48 C.W.N 554. Judicial opinion on this point is not, however, uniform and the learned Judge's finding of misconduct appears to be well-founded on the tests laid down in that behalf in the other Bench decision of this Court reported in Bengal Nagpur Railway Co., Ltd. v. Moolji Sicka & Co. (3) (35 C.W.N 133) and it is also substantially supported by the cases of B.N Ry. Co. Ltd.… v. Moolji Sicka & Co.…Opposite Party. (4) (A.I.R 1932 Cal. 70) and Bengal Nagpur Railway Company Ltd. v. Haji Latif Abdulla (5) (A.I.R 1937 Cal. 410). There is much to be said in favour of either point of view and, in a proper case, the question may have to be considered by a Full Bench of this Court. As, however, as we have already said, the learned Subordinate Judge's decision has at least the merit of substantial justice, it is unnecessary for us in this Rule to discuss this point any further or to consider the question of reference of the conflict of judicial opinion to a Full Bench, and we would content ourselves by refusing to give effect to the petitioner's above contention in this case simply on the ground that, even if it be technically correct, it would hardly justify interference with the learned Subordinate Judge's decision, which plainly accords with substantial justice, in the exercise of the discretionary revisional powers of this Court

8. Upon the second contention too the position is substantially similar. We have said that the notice under section 77 of the Indian Railways Act was served upon the Chief Commercial Manager. Such service has been accepted as good service in the decisions of this Court reported in Shamsul Huq v. Secretary of State (6) (I.L.R 57 Cal. 1286 : A.I.R 1930 Cal. 332) and in Sristidhar Mandal v. Governor General in Council (7) (A.I.R 1945, Cal. 412) and also by the Allahabad High Court in the case of Chaturbhuj Bam Lal v. Secretry of State for India (8) (A.I.R 1927 A.C 214), broadly upon the view, inter alia, that as claims against the Railway are dealt with by that Officer service of this notice of claim upon him must be taken to be substantial compliance with the requirements of law. In the case Sristidhar Mandal v. Governor-General in Council (7) (A.I.R 1945 Cal. 412), cited above, where also the notice under section 77 was served upon the Chief Commercial Manager, Henderson, J., put the matter straight in his own inimitable language: “The law is certainly remarkable”, so remarked the: learned Judge, “if a good claim is to be dismissed, because a notice is given to the Officer whose duty it is to investigate it and he proceeded to hold that Notice was given to the right officer” and “it would be an extraordinary thing if that is held to be an invalid notice”. Continuing the learned Judge made the following observations at page 413 of the Report: “The service of a notice under section 77 is not a condition precedent to the institution of the suit. Section 140 was undoubtedly enacted to help claimants and not to assist the railway administration to make a dishonest defence. If the notice is served within its terms the Railway have no answer. It does not matter in the least whether any individual officer knew about it or not. It is, however, sufficient to comply with section 77 if in fact notice is given to the railway administration. The notice under section 80, Civil Procedure Code, was duly served on the Government of India. As usual it was forwarded to the General Manager of opposite party No. 3. He did nothing whatever except to send it to the gentleman who received the notice under section 77 from the petitioner direct. It is quite obvious that, if the notice under section 77 had been sent to the General Manager, he would merely have forwarded it to the Chief Commercial Manager. In these circumstances, it would be preposterous to say that no notice has been given to the Railway administration”. That sums up admirably the gist of the position, taken up by the learned Judge, on this aspect of the matter and it is difficult to say that there is no substance in his supporting observations. A contrary opinion has no doubt been expressed in the recent decision of this Court in the case of Union Of India…Defendant, v. Indumati Saha…Plaintiff, Opposite Party. (2) (55 C.W.N 662), enjoining strict such compliance with the statute in the matter of such service and recognising the General Manager alone as the appropriate authority to be served with notice under section 77. We are not prepared to say, however, without a fuller consideration that the earlier view is in law totally unacceptable. It has, at least, all the commonsense of the matter from a practical point of view and as the purpose of the statutory notice is sufficiently and unquestionably served by service upon the Chief Commercial Manager he being the authority who actually deals with claims against the Railways Act, the notice under section 77 “is not” —as distinguished from the other statutory notice under section 80 of the Civil Procedure Code a condition precedent to the institution of the suit, as held by Henderson, J., in the passage quoted and now settled by the Full Bench in the recent case of Bansi v. Governor-General of India in Council, 56 C.W.N 83, where, at p. 89 of the Report, Henderson, J.'s view on this point was expressly approved and as in matters of this kind Courts ought not to be too technical or hypercritical so as to hinder the cause of justice, and not further it, by insisting upon strict technicalities, the decisions in (8) A.I.R 1927 All. 215; (6) I.L.R 57 Cal. 1286 : A.I.R 1930 Cal. 332 and (7) A.I.R 1945 Cal. 412 may well be supported, even if strict logic or the letter of the law inclines towards the contrary view. We are satisfied, how ever, as already stated, that the decision of the learned Subordinate Judge in the present case is quite in consonance with substantial justice and we would not, therefore, interfere with it in revision, even if it were technically not quite correct. The petitioner's second contention also is, accordingly, rejected.

9. There remains now the petitioner's submission, namely, the point of limitation. The learned Subordinate Judge has rejected this plea of limitation on the finding that the date of delivery of the goods to the plaintiffs opposite parties was the 4th September, 1950. It is contended before us that, in taking the said date as the date of delivery, the learned Subordinate Judge has committed an error. It is argued by Mr. Basu that the actual date of delivery in the present case was the 1st or the 2nd September, 1950, and that, therefore, the suit was filed at least a day or two too late. On the materials before us, we are unable to accept this contention. Ex. 2, the shortage certificate, clearly shows that delivery was taken by the plaintiffs opposite parties on the 4th September, 1950. It seems to us further that the different dates, mentioned in Exs. A and B, the Railway's Delivery Book and Unloading Book, do not either refer to or give us clearly the date of delivery to the plaintiffs. That this is so is well-confirmed, and, indeed, placed beyond doubt or dispute, by the pleadings in the case. In the plaint it was specifically stated in paragraph 4 that the delivery was made to the plaintiffs on the 4th September, 1950. This was not controverted in the written statement. In the above state of things, it is idle to contend that the learned Subordinate Judge was wrong in taking the 4th September, 1950, as the relevant date of delivery and, that being so, there is no substance in the petitioner's contention that the plaintiff's suit was time-barred. In the view, we have just expressed, it is unnecessary for us to consider the other argument on this point, advanced by Mr. Janah, who appeared before us on behalf of the opposite parties, that, in any event, Ex. 4 contains an acknowledgment, sufficient in law to give a fresh start of limitation. We may point out, however, that, apparently, at least, this argument has the support of the decision of the Bombay High Court in the case of Haji Ajam v. Bombay and Persia Steam Navigation Co. (9) (I.L.R 26 Bom; 562), and also this Court's decision in the recent case of Jainarain v. The Governor-General of India (10) (A.I.R 1951 Cal. 462), and may thus, possibly save the plaintiffs' suit from being time-barred. As already stated, however, it is not necessary for us to consider this last question in the present case and we do not, therefore, propose to examine Mr. Janah's argument on this point any further. The relevant date of delivery, as correctly taken by the learned Subordinate Judge, being the 4th September, 1950, the statutory period of one year under Art. 30 of the Limitation Act—which, as we shall presently show, started to run in the present case from the said date of delivery-would take us to the 4th September, 1951, and the plaintiffs being clearly entitled to a further period of two months under section 15(2) of the Limitation Act on account of the statutory notice of the suit under section 80 of the Code of Civil Procedure, the last date for the filing of the suit would be the 4th November, 1951, which being, admittedly, a holiday, as found by the learned Subordinate Judge, the suit must be held td have been properly filed on the 5th November, 1951, quite within the time allowed by law. The petitioner's plea of limitation is, accordingly, overruled.

10. It only remains to add that, in the present case, it is not possible to argue that limitation would start earlier than from the date of delivery to the plaintiffs. There is no dispute that Art. 30 of the Limitation Act would apply to this case. That Article contemplates suit, “against a carrier for compensation for losing or injuring goods” and under it limitation starts or begins to run from the date “when the loss or injury occurs”. Such loss or injury obviously occurs while the goods are in the custody of the carrier and, prima facie, therefore, the date thereof will be within its special or “peculiar” knowledge,-in any event, the carrier will certainly be in a much better position than either the consignor or the consignee to prove that date and, accordingly, it has been held over and over again that, under Art. 30 of the Limitation Act, the onus to prove the date of “loss or injury”, mentioned in the third column of that Article, is, where the goods are carried by rail and the loss or injury occurs in the course of such transit, on the Railway concerned, and, in the absence of satisfactory evidence on its part on this point, that is, in the event of its failure to discharge the onus, the date of delivery to the party should be taken as the relevant date of “loss or injury”, or, in other words, as the starting point of limitation under Art. 30.

11. This was the-view taken in at least three decisions of this Court, namely, River Steam Navigation Co., Ltd. v. Bisweswar Kundu (11) (A.I.R 1928 Cal. 371); Gangadhur Ram Chandra v. Dominion of India (12) (A.I.R 1950 Cal. 394) and Jainarain's case (10) (A.I.R 1951 Cal. 462), already: cited, and also by the Allahabad High Court in (13) (I.L.R 45 All. 43 : A.I.R 1923 All. 22) (Jugal Kishore v. G.I.P Rly. Co. and G.I.P Rly. v. Firm Radha Mal Manni Lal (14) (I.L.R 47 All. 549 : A.I.R 1925 All. 656), and, in some of those decisions, it was even spoken of as well-settled. The same view of the law is also to be found in East Indian Railway v. Gopilal Sharma (15) (A.I.R 1941 Cal. 304), where, however, the suit was dismissed as it had been brought beyond one year from the date of delivery of the goods to the plaintiff. That view namely, what we have set out before, seems to us to be eminently reasonable and, in our opinion, the law on this point was correctly laid down in the cases cited and the relevant statutory provision was there correctly interpreted.

12. In the case before us, the petitioner Railway has practically adduced no evidence to show when the damages, which have now been sued for in this suit, and actually proved, had occurred. The Message Book (Ext. C) is hardly sufficient for the purpose. The onus, therefore, that lay upon the petitioner under Art. 30 of the Limitation Act, cannot be said to have been discharged. It may also be pointed out in this connection that, in the petitioner's written statement, there is no allegation that the loss or injury occurred at any point of time earlier than; the date of delivery to the plaintiffs. In the circumstances, we are bound to hold that, in the present case, the date of delivery to the plaintiffs would be the starting point of limitation and, accordingly, in view of our findings, made above, the petitioner's plea of limitation must fail.

13. In the result, therefore, all the submissions, made by the petitioner's, learned Advocate, are rejected and this Rule is discharged. We direct, how-ever, that, in the circumstances of this case, the parties will bear their own costs in this Court.

Guha Ray, J.:— I agree.

A.K.D.G