Kulwant Sahay, J.:— (after stating the facts set out above, proceeded as follows): It is clear on reference sections 77 and 140 of the Indian Railways Act that a notice must be given to the Agent of the company before a suit for compensation for loss can is be entertained. It is settled law that notice to a subordinate officer of the railway company is not a sufficient compliance with the provisions of the law, and the learned District Judge does not base, his decision on such ground, nor has it been argued before us on behalf of the plaintiff-respondent that a notice to the Traffic Manager was a sufficient notice as required by law.
The question, however, is whether a notice to the Traffic Manager can be considered to be a notice to the Agent. The decisions of the various High Courts on this point are almost uniform. In The Agent, East Indian Railway Company v. Ajodhya Prasad a Division Bench of this court held that a notice under section 77 of the Indian Railways Act, to be a valid notice, must, be served upon the Agent or Manager of the company and not upon a subordinate official of the railway company, and that any communication addressed to the District Traffic Manager is not a notice in accordance with the requirements of section 77 read with section 140 of the Indian Railways Act. In Janki Das v. The Bengal-Nagpur Railway Company Sir Lawrence Jenkins held that a notice of claim for loss of goods despatched by rail given to the Goods Superintendent did not comply with the requirements of sections 77 and 140 of the Railways Act. In The Assam Bengal Railway Company, Limited v. Radhika Mohan Nath a Division Bench of the Calcutta High Court held that a service of notice on the Traffic Manager was not a sufficient compliance with the Act and the notice must be given to the Agent of the company. The Bombay High Court has taken the same view in The Great Indian Peninsula Railway Company, Limited v. Chandulal Sheopratap. The same view was taken by the Allahabad High Court—[see Cawnpore Cotton Mills Company, Limited v. The Great Indian Peninsula Railway Company and the cases cited therein], and by the Lahore High Court [see Paras Das v. The East Indian Railway and Bombay, Baroda and Central India, Railway Company v. Manohar Lal Parwin Chand]. In Mahadeva Aiyar v. The South Indian Railway Company a Full Bench of the Madras High Court considered the question of notice, and two of the learned Judges composing the Full Bench held that where the notice under section 77 read with section 140 of the Railways Act is sent to the District Traffic Superintendent and there is nothing to show that the power of the Agent to receive such notices had been delegated to that official, or that the railway company by its rules or course of conduct, had held out to the public that the notices might be sent to that officer instead of the Agent, and it is not proved that the Agent became aware of the notice within the prescribed time, a suit for damages for short delivery of goods against the railway company would not be maintainable. Kumaraswami Sastri, J., however, held that section 140 was only an enabling provision and that its object was to see that the notice provided for by it somehow reaches the Agent, and that in cases where a subordinate railway official sends on the notice to the Agent or informs him of its contents within six months, there is a substantial compliance with the requirements of the Act, and that an Agent can depute a subordinate officer of the company to receive the notice. In The South Indian Railway Company v. Narayana Aiyar a similar view was expressed by the Madras High Court where it, was held that if it is found that the notice required by section 77 of the Act has not been given teethe Agent of the railway, but was sent to some subordinate officer of the railway, the plaintiff in order to succeed must prove ??? that the power of the Agent to receive notice under section 140 of the Act had been delegated to the subordinate officer who had actually received the notice or that the company by its rules or course of business had held out to the public that notices ought to be given to such officer instead of to the Agent.
These Madras decisions, therefore, proceed on the principle that the notice has to be given to the Agent, and although the notice might be addressed to a subordinate officer of the railway company, yet if that notice actually reaches the Agent within the prescribed time, it would amount to a sufficient compliance with the requirements of the law. A similar view appears to have been expressed by this court in Durga Prasad v. Great Indian Peninsula Railway where a claimant who had failed to comply with clause (c) to section 140 of the Railways Act was held entitled to prove that the notice was in fact delivered to the Agent under clause (a) to the section. In that case the notice was addressed to the Agent, East Indian Railway, at Howrah, but the office of the Agent was not at Howrah but at Fairlie Place, Calcutta. The notice was received by the General Traffic Manager of the East Indian Railway at Howrah who then sent the letter to the Divisional Traffic Manager who, after carrying on a correspondence with the plaintiff for sometime, finally wrote to him denying liability of the railway company. It was held that although the notice was not, served in accordance with clause (c) of section 140, yet, if, in fact the notice reached the Agent as contended for by the plaintiff in that suit, it was a good service under clause (a) of section 140. In my opinion this is a sound view of the law, and if it can be shown by the plaintiff that a notice of claim for loss of goods, although addressed to a subordinate officer of the railway administration, did actually reach the Agent within the time prescribed by law it would be a sufficient compliance with the requirements of the law. All the High Courts, however, agree in holding that a notice must be actually given to the Agent. In the present case it has not been shown that the notice sent to the Divisional Traffic Manager reached the Agent. In fact the plaintiff himself did not consider the notice to the Divisional Traffic Manager to be a sufficient compliance with the law inasmuch as he himself sent a duly registered notice to the Agent on the 20th of January, 1921. This was, however, beyond six months from the date of delivery of the goods to the railway company, and was not a compliance with the requirements of section 77 of the Act.
As regards the observation of the learned District Judge that there was a delegation of power to the Traffic Manager and that therefore the notice to the Traffic Manager was a valid notice, I am of opinion that this contention is not sound. In the first place no such plea was taken by the plaintiff. No issue was raised on the question of fact as to whether there was a delegation of the powers of the Agent to the Traffic Manager. There is absolutely no evidence on the point except the printed conditions on the back of the receipt given by the railway company to the consignor when the goods were delivered to the company. One of the conditions on the back of the receipt was that notice must be given to the Divisional Traffic Manager before a claim can be entertained. That did not in any way amount to a delegation of the power of the Agent to receive notices prescribed by section 77 of the Act?to the Traffic Manager. It was simply a condition prescribed for speedy investigation into claims. No doubt, it had been held in the Madras High Court and also in some of the other High Courts that a delegation of authority will be presumed from rules framed by the railway comply or from the course of conduct of the railway company which might lead the public to believe that notice given to particular officer of the company would be a valid notice under section 77 of the Act. But in the present, case there is no such allegation and no such proof. The fact that a particular officer is appointed by the Agent to investigate into and settle claims for loss of goods does not, show that the Agent delegated his powers to receive notice to such officer. I am clearly of opinion that in the present case it has not been shown that the Divisional Traffic Manager had any delegated powers to receive the notice, and that the notice given to the Traffic Manager was not a sufficient compliance with the requirements of law.
Under the circumstances it is clear that the present suit cannot be maintained for want of notice to the Agent within six months of the date of delivery of the goods and the claim of the plaintiff must therefore be dismissed. This appeal is decreed and the plaintiff's suit dismissed. The ground of dismissal, however, is a technical ground and the plaintiff has actually suffered loss on account of the non-delivery of the goods to him: I am, therefore, of opinion that although the suit is dismissed he is not liable to pay costs, therefore, although the appeal is decreed, no costs are allowed to the appellant in any court.
Ross, J.:— I agree.
Appeal decreed.