1. Upon the findings this case seems to be one of considerable hardship. The plaintiff delivered a parcel containing valuable Dacca muslin, etc., to the Eastern Bengal Railway on the 24th February 1915 for conveyance to Calcutta. On the 26th February the parcel reached in a damaged condition and open delivery was given to the consignee at his request showing the goods that were missing. It is admitted that they must have been stolen by some Railway servant. The plaintiff at once gave notice to the Traffic Manager as required by the rules printed in the Time and Fare Table. Time after time the Traffic Manager wrote to say that the matter was under enquiry and at last on the 30th August 1915, several days after the expiry of six months from delivery, wrote to the plaintiff that his claim was not admissible as he had not insured the goods as required by Section 75 of the Act. The plaintiff on the 13th September 1915 gave notice to the Agent, who referred the matter to the Traffic Manager who again wrote to the plaintiff that his claim was barred by Section 75. It must be said to the credit of the Traffic Manager and the Agent that they did not set up a bar under Section 77 for want of notice within six months. It is quite probable they thought that the section had been complied with when notice was given to the Traffic Manager. The plea was, however, taken when the matter came to the Court and we have to see if it was rightly taken.
2. The Court below has held that there was no bar under Section 75, but the bar under Section 77 was fatal as the Agent is not shown to have had notice within six months.
3. I am constrained to think that the lower Court is right.
4. It has been argued that the Eastern Bengal Railway does not entertain any officer who is called a Manager and the plaintiff could not give any notice to the Manager. But if there is no Manager, the plaintiff could have given notice to the Government but he did not do so within time.
5. The learned Government Pleader says that the Government has, by a notification in the Calcutta Gazette, ruled that the Agent should be considered the Manager. I may take it, therefore, that the Agent was the Manager. If he was, he was entitled to a notice within the required time. The notice to the Traffic Manager is for the purpose of ensuring an immediate enquiry and is not sufficient. The delay in the enquiry is to be regretted as the plaintiff may have thought that he would have his remedy from that officer. But there can be no estoppel against the express provisions of the Statute and the plaintiff's suit must fail. I think there should be a supplementary rule printed in the Time and Fare Table as in the Coaching Tariff that a further notice must be served upon the Agent or the Government under Section 77 within six months of the delivery. This ought to be done for the purpose of preventing possible misconception and hardship by reason of delay in the enquiry by the Traffic Manager. I would, therefore, discharge the Rule but without costs.
Walmsley, J.
6. I agree that the Rule should be discharged.
7. In my opinion, the Agent of the Eastern Bengal Railway is the Manager within the meaning of the Railway Act, and the notice required by Section 77 must be given to the Agent, and service on the Traffic Manager is not sufficient.
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