The firm of Putidas Mahadeo Lal consigned 10 tins of cocoanut oil at the Howrah Station of the E.I Railway Company for carriage to the Plaintiff at the Futwah Station on the 3rd December 1913. The consignment did not reach the Plaintiff and he gave notice of demand of compensation to the Claims-Superintendent of the Company at Howrah on the 25th December 1913. He gave a notice to the Agent on the 10th of August 1914, but the said notice was refused. This suit was then filed on the 2nd January 1915 claiming compensation for the loss of the goods alleging that the said loss was due to the wilful negligence of the servants of the Company or to theft by its servants. The Company replied that the suit was incompetent as no notice had been served on the Agent as required by law; that the suit was barred by limitation, that the Company was not liable as the loss was due to a train robbery.
The learned Judge below held that the plea of a train robbery was not made out: that the notice had been duly served upon the Claims-Superintendent whose duty it was to settle such claims and that was sufficient and that the suit was not barred. Upon these findings he gave a decree to the Plaintiff.
The Company has moved this Court mainly on three grounds:—(1) That the non-service of a notice on the Agent is fatal to the suit: (2) That the suit as laid in the plaint was barred under Article 30 of the 1st schedule to the Limitation Act, and (3) lastly, that the Plaintiff had failed to prove that the case came within the exception mentioned in the risk-note B under which the Company would be liable only under certain circumstances.
We think that the first ground is sound. Sec. 77 of the Railways Act provides that a notice of claim for compensation must be made within six months from the date of the delivery to the Company, and sec. 140 provides that the notice must be served on the Agent of the Company in India (a) by delivering the notice to him, (b) by leaving it at his office, (c) by forwarding it by post, etc.
The notice to the Agent in this case was sent on the 10th of August 1914, i.e, more than six months after the delivery which took place on the 3rd December 1913, and the notice that was given to the Claims Superintendent was not a notice to the Agent. The learned Judge below has held that the Claims-Superintendent usually settles these claims and therefore the notice was valid. He does not, however, find that the Claims-Superintendent was authorised by the Agent to receive such notices on his behalf and there is no evidence on the record to make Out such a case. Reliance has been placed on the case of Woods v. Meher Ali. It was held in that case that a notice to the Traffic Manager in the Claims Department was sufficient as that officer usually settles such claims and such claims are usually referred to him by the Agent. In the present case there is no evidence that such claims are usually referred by the Agent to the Claims-Superintendent nor is there any finding, as there was in the case of Woods v. Meher Ali, that the notice had reached the Agent. In the case of Janki Das…(Plaintiff); v. The East Indian Railway Company…(Defendant).* it was held by Sir Lawrence Jenkins, C.J and N.R Chatterjea, J., that a notice to the Goods Superintendent was not sufficient. In the case of The East Indian Railway Co. v. Madho Lal. Harington and Carnduff, JJ., held that a notice to the Divisional Traffic Manager was not sufficient. In the case of Radha Kissen v. The East Indian Railway Co. , Fletcher and N.R Chatterjea, JJ., held that a notice to the Goods Superintendent was not sufficient. The law requires that the notice should be on the Agent and we think that the notice must be on the Agent and whether a particular officer is authorised by the Agent to receive such notices on his behalf is a question of fact that must be decided on evidence. We are also inclined to favour the second contention of the Petitioner as the case made in the plaint was one of loss and would therefore come under Article 30 of the Schedule to the Limitation Act. In this view of the case it is not necessary to consider the third point.
We make the Rule absolute with costs two gold mohurs.
N.G
Rule made absolute.