Governor-General In Council v. Gouri Shanker Mills Ltd.

Manohar Lall, J.:— The following questions have been referred to the Full Bench for decision:

(1) Whether the requirements of Section 77 read with Section 140 of the Railways Act, are satisfied by serving a notice within the prescribed period on the Chief Commercial Manager or any other subordinate officer of a Railway owned by the Government of India and

(2) Whether the cases of East Indian Rly. Co. v. Bhimraj Sri Lal, 5 Pat. 488 : (A.I.R (13) 1926 Pat. 413) and B. & N.W Ely. Co. Ltd. v. Kameshwar Singh, 12 Pat. 67 : (A.I.R (20) 1933 Pat. 45) were correctly decided.

2. In order to give proper answers to these questions it is essential to Bet out the facts so far as they are relevant. On 11th August 1942, Sri Krishna Company of Bhagalpur on the East Indian Railway consigned certain goods to that Railway for delivery at Lakhesarai also on the East Indian Railway—the consignors were also the consignees, but the railway receipt was endorsed in favour of the plaintiffs. On the back of the receipt, twelve paragraphs are printed under the heading “Notice to consignors, East Indian Railway Administration hereby give public notice”. These paragraphs are carefully drafted and contain all the conditions under which the goods are being received by the railway administration, and also draw attention to the fact that the consignor should take the precaution of obtaining a receipt for the goods delivered and to deliver the railway receipt to the railway administration at the time of delivery, and inter alia paras. 4 and 5 indicate how and within what period the claim should be made against the railway administration for loss of or damage to goods. Paragraph 4 runs as follows:

“That all the claims against the railway administration for loss of or damage to goods must be made to the clerk in charge of the station to which they have been booked before the delivery is taken, and that the written statement of the description and contents of the articles missing, or the damage received must be sent forthwith to the Chief Commercial Manager, Claims, Calcutta, otherwise the Railway Administration will be freed from responsibility.”

3. As the goods were not delivered to the plaintiffs, they preferred a claim to the Chief Commercial Manager demanding the price of the goods which had not been delivered to them under the railway receipt of 11th August 1942. This letter which was addressed to the Chief Commercial Manager, Claims, Benares Cantonment, was acknowledged by him describing himself as the Chief Commercial Manager, Claims, East Indian Railway, Benares Cantonment, by a letter Ex. 2(b), dated 2nd November 1942, which runs as follows:

“I beg to acknowledge the receipt of your above quoted letter the subject of which is receiving my best attention. Important. To avoid delay please quote this office reference number.”

4. The plaintiffs again reminded the Chief Commercial Manager on 29th September 1942, and received a reply, Ex. 2(e) dated 18th December 1942, in these words; “I have to inform you that the matter is under special enquiry and I expect to send you a definite reply shortly.” On 16th April 1943, the plaintiffs wrote a letter, Ex. B, to the Deputy Chief Commercial Manager, East Indian Railway, Claims, Calcutta, drawing his attention to the fact that the claim for the above consignment was duly preferred to his Benares Office and that in spite of repeated correspondence in this connection the plaintiffs failed to obtain any satisfaction, and it appeared to them that there was no alternative but to go to a Court of law for realisation of the rightful claim for the goods that were lost while in the custody of the railway. The plaintiffs expressed anxiety for an amicable settlement with the East Indian Railway and requested the addressee to look in the matter finally at an early date. Reference was also given to the letter addressed to the Benares Office. The letter was sent under registered cover and the address on the envelope is “Deputy Chief Commercial Manager, Claims, East Indian Railway, Fairlie Place, Calcutta.”

5. Exhibit B(1) dated 7th May 1943, was sent under a registered cover with acknowledgment dug to the Deputy Chief Commercial Manager, Claims, Calcutta reminding him of the letter of 16th April 1943, (of which a copy was enclosed) about the claims for the consignment lost under the aforesaid railway receipt and stating that the plaintiffs were anxiously waiting for the final decision. This letter which was received by the Deputy Chief Commercial Manager bears a note dated 12th May by some clerk in the office as follows:

“Dy C.

Ref. queries at pages 19 and 23. All the three consignments were looted or destroyed during the disturbances. Claimant has been advised accordingly. Detailed note is at page 21.”

6. On 21st July 1943, the plaintiffs sent a notice under Section 80 of the CPC, to the Secretary, Central Government, in charge of Railways, Transport and Communication, New Delhi. On 31st July 1943, the Deputy Director of the Railway Board wrote to the plaintiffs by Ex. 5(b) that the notice dated 21st July 1943, regarding the claim for compensation had been for-warded for disposal to the General Manager, E.I Ry., Calcutta, who is the competent authority to deal with the matter and to whom all further references on the subject should be made, on 19th November, 1943, the Chief Commercial Manager, E.I Ry., sent a letter, Ex. 5(a), to the plaintiffs stating that the subject-matter of the letter of the plaintiffs would receive attention. Having failed to get any redress from the Railway, the plaintiffs instituted the suit giving: rise to this appeal on 16th November 1944. One of the defences feet up by the Railway Administration through the Governor-General in Council is that the suit is not maintainable as no claim under Section 77 of the Railways Act, was preferred to the General Manager, East Indian Railway.

7. The learned Subordinate Judge overruled this defence of the defendants holding that no notice under S. 77, was necessary as a condition precedent for the filing of the suit because in this case the damage was claimed for nondelivery of the consignment. But he also held that in case it was assumed that a notice was necessary, such a notice had been given because the plaintiffs preferred their claim to the Chief Commercial Manager, claims, and he is the proper person to receive such claims and to enquire into the matter as he did in the present case. He referred with approval to the decision in the case of Sristhidhar Mandal v. Governor General in Council, A.I.R (32) 1945 Cal. 412 : (49 C.W.N 240) and to our decision in Bengal and Northwestern Railway v. Kameshwar Singh, 12 Pat. 67 : A.I.R (20) 1933 Pat. 45, where it was observed:

“If the company by its course of business holds up any particular official as competent to deal with claims, then service of notice upon such an official must be taken as against the company to be service upon the company.”

8. The learned Subordinate Judge also overruled the other defences set up by the Railway with which we are not concerned. In the result he decreed the suit of the plaintiffs. Hence the appeal by the Railway Administration.

9. Mr. Nitai Chandra Gosh argues that the plaintiffs' suit ought to be dismissed because the notice in this case has not been served on the Railway Administration. He draws attention to the definition of ‘Railway administration’ given in Section 3(6) of the Railways Act, which states that the ‘Railway administration’ means the Manager of the Railway and includes the Government in the case of Railway administered by Government—in the present case the East Indian Railway is administered by the Government. He argues that in this case the notice was not served on the Manager but on a Subordinate Official even though he is called the Chief Commercial Manager, Claims. In the course of the argument he relied upon the following foot-note at page 540 of Hari Rao's Indian Railways Act, 1938 edition:

“According to a recant notification, the head of State-managed railway is to be henceforth called the “General Manager” instead of the, “Agent” thereof, and that of a company-managed railway, the “Agent” and “General Manager.”

10. It may be observed here that the author adds

“But it is doubtful whether such a mere notification can affect the provisions of Ss. 3(6) and 140 in which the Manager and the Agent are indicated as the heads of a State railway and a private railway respectively.”

11. Mr. Ghosh's argument is that the notice in the present case was professedly not served on the General Manager, and therefore this is a fatal defect in the success of the plaintiff's suit. With regard to the argument which appealed to the learned Subordinate Judge Mr. Ghosh submits that the statutory requirements of S. 77 cannot be abrogated by relying on the alleged course of conduct of the railway administration in entering into correspondence with the plaintiffs and further that paragraph 4 of the conditions on the back of the railway receipt merely requires the consignor to give an immediate notice of the claim to the person named therein so that the railway administration may at once take steps to have a proper enquiry made. He argues that as by paragraph 6 attention is specially drawn to the requirements of Section 77 of the Railways Act, the plaintiffs cannot be allowed to ignore those stringent statutory requirements by urging that they have complied with the requirements of paragraph 4, of the conditions.

12. Mr. Untwalia appearing on behalf of the plaintiffs supports the reasoning and conclusion of the learned Subordinate Judge and urges that the Railway Company has, by the course of conduct, indicated to the public and the plaintiffs that the notice of the claim can be and should be preferred to the person named in para. 4. He submits that it will be amounting to manifest injustic that the Railway Company should be allowed to go behind their own conditions of the contract between the parties evidenced by the various paragraphs of the railway receipt, because they have accepted the position that the Chief Commercial Manager is the proper person to whom a notice of the claim should be given and when that officer entered into a lengthy correspondence with the plaintiffs stating that he was enquiring into the claim, the defendants should be debarred from urging that S. 77 has not been complied with.

13. Upon these facts the first question stated above has been formulated for our decision.

14. A flood of cases has been let loose on this Bench due to the great industry displayed by Mr. Nitai Chandra Ghosh. He has taken us through every one of those cited cases which bear on the subject decided by this Court, by Calcutta, Allahabad, Bombay, Madras and Lahore High Courts.

15. Before examining the case I wish to consider the relevant sections of the Railways Act itself.

16. Section 77 is obviously a limitation section because it enacts that in order to entitle a person to claim compensation for the loss inter alia of goods delivered, to be carried by the railway, a claim to compensation must be preferred in writing to the railway administration within six months of the date of the delivery of goods for carriage. What is the meaning of the word “railway administration”? I turn to the definition of S. 3, which has already been referred to. Section 3, however, begins with the usual words that unless there is something repugnant in the subject or context, “railway ad-ministration” means the ‘Manager of the Railway.’ What then is the subject or context in the present case? The conditions in the railway receipt provide the meaning of the word ‘Railway administration’. Paragraphs 1 and 3, for instance, point to the fact that a servant of the railway, a clerk or agent (not the agent) or any other servant of the railway who is authorised to receive the goods or to receive the railway receipt at the time of delivery is included within the words ‘Railway administration’. It cannot be argued, and it has not been argued, that the words ‘railway administration’ in these paragraphs mean ‘Manager of the railway’. The other paragraphs in this railway receipt must also be similarly construed and so construing paras 4 and 5 must mean that the claim for refund of the compensation must be preferred in writing to the officer or employee of the railway administration who is shown in para. 4 to be authorised to deal with the claims. These are the terms of the contract between the parties upon which goods are delivered for despatch to the consignee railway station.

17. Section 140 is merely an enabling section. It provides that the notice may be served on the Manager of a Government administered railway in the manner described. I am inclined to the view that the word “may” in the section does not mean ‘must’. The person who serves the notice takes a risk if he does not follow the procedure laid down in S. 140. But this does not mean that the railway can seek shelter behind the words of S. 140, in case the notice is not served in the manner provided therein even when the notice has reached the Manager. As I have said, S. 140 is an enabling section and it protects the claimant, when he adopts the mode of service indicated by the section; but if he does not follow that procedure it is open to him to establish by evidence that the notice has reached the Manager within the period prescribed by S. 77.

18. The object of the notice on the Manager is simply to give an opportunity to the railway administration that they may inquire immediately into a claim so that the difficulty in examining a state claim may be obviated. The Manager of a railway administration does not make enquiries into the claim himself, and usually, as in the case of the defendant railway, a special officer is deputed to deal with these claims. I cannot understand why the Manager cannot say that for such a case the claim should be handed over or preferred to a special officer appointed by him. The well known doctrine “qui facit per alium facit per se” applies to such a situation. The argument that the agent or the Manager cannot be allowed to delegate his authority on the maxim “delegatas non protest delegare” does not appeal to me, because as was pointed out by Sir Shadi Lal C.J in Devi Ditta Mal v. Secretary of State, 7 Lah. 238 : (A.I.R (13) 1926 Lah. 253 F.B):

“But the law enacted by S. 77, read with Section 3, sub-b. (6), Railways Act, views the agent of a Railway as a principal, and not as a delegate, and the maxim which prohibits subject to certain exceptions, a delegation by a delegate, in other words, a second delegation, cannot be invoked for the purpose of preventing the principal himself from delegating his power. The doctrine is well recognised that whatever a person has power to do himself, he may do by means of an agent, qui facit per alium facit per se.”

19. For these reasons I am of the opinion that it is open to the Manager of a Government administered railway to authorise any subordinate official to receive notice of the claims under Section 77 of the Railways Act, but such an authority has to be established as a fact in each particular case, and this may be established either by proving an express order of the Manager or by course of business or conduct of the railway concerned or by any other evidence.

20. I now proceed to consider the cases cited by the parties before us.

21. Madras. The majority of the cases cited by Mr. N.C Ghosh have been carefully considered in the Full Bench decision of the Madras High Court in Mahadeva Ayyar v. S.I Railway, 45 Mad. 135 : (A.I.R (9) 1922 Mad. 362) I have considered the reasoning of Kumarswami Sastri, J., in the light of the arguments advanced before us and I am unable to hold that there is any flaw in the reasoning of the learned Judge. If I may say so with respect the learned Judge has accurately held: (1) There is nothing in the Act that prevents the Railway Administration or its Agent or Manager from deputing an officer to receive the notice required by Ss. 77 and 140 on its behalf. It is unlikely that the Agent or Manager would attend personally to losses and in the ordinary course of business he would depute the Traffic Manager or District Traffic Superintendent to investigate into the matter and report to him. Instead of receiving the notice and passing it on to the officer concerned the Agent or the Manager (may ask?) the party making the claim to send the notice to the person to whom the Agent would, in the ordinary course of business, pass it on. The object of S. 77 being to give the company prompt notice of the claim so as to prevant state claims and to enable it to make prompt inquiry there is no peculiar efficiency in its being addressed to the Agent, if the company thinks it fit to ask the person complaining to address its claim to a subordinate official ordinarily dealing with such claims; (2) Section 140 is an enabling provision and the word “may” does not mean “must” so as to make other modes of service ineffectual even in cases where the notice has actually reached the Agent or where the contents of the notice have been communicated to him by the Subordinate who receives the notice.

22. The officiating Chief Justice does not dissent from this view, because at page 145 he observed that he examined the record in the case to see if there was any evidence from which it could be deduced that the power of the agent to receive notices under S. 140 had been delegated to the District Traffic Superintendent or that the Railway Company by its rules or course of conduct had held out to the public that notices might be given to such an officer instead of to the Agent, and thus estopped themselves from raising this technical defence.

23. The only later case of the Madras High Court to which our attention was drawn is the case of South Indian Railway v. Narayana Iyer, A.I.R (11) 1924 Mad. 567 : (77 I.C 511). This case follows the Full Bench case of Mahadeva Ayyar, (45 Mad. 135 : A.I.R (9) 1922 Mad. 362).

24. Lahore. The majority of the Judges in Devi Ditta Mal, 7 Lah. 238 : (A.I.R (13) 1926 Lah. 253 F.B) consisting of six Judges, came to the same conclusion. In that case attention was drawn to the Goods Tariff Pamphlet of the North Western Railway which prescribed a rule that all applications in connection with claims for compensation should be made to the Traffic Manager, Claims Section, Lahore, and it was pointed out that this rule although it did not emanate from the Government of India must have been authorised and promulgated by the Agent of the Railway, and therefore, the services of notice on the Traffic Manager, Claims, Section, was a sufficient compliance with the provision of S. 77 of the Act. (The same remarks apply to the present case where, as I have shown, a similar rule is to be found on the back of the railway receipt which was handed over to the consignor when the railway took delivery of the goods for carriage to the destination). It was also held that S. 140 is an enabling section and the word ‘may’ should not be interpreted as equivalent of ‘must’. Mr. Ghosh referred us to a later decision of that Court, B.B & C.I Ry. Co. v. Abdul Rahman, A.I.R (18) 1931 Lah. 606 : (133 I.C 283), decided by a single Judge. The learned Judge distinguished the Full Bench case of Devi Ditta: (7 Lah. 238 : A.I.R (13) 1926 Lah. 253) in these words: “There is no evidence to show that the Agent had authorised the Traffic Manager to receive such notice on his behalf.” It may be observed that the observations of the learned Judge in so far as he did not follow the Full Bench decision of his Court are mere obiter, because in the result he declined to interfere in his revisional jurisdiction on behalf of railway who was the petitioner before him.

25. Bombay: The earlier Bombay cases E.I Rly. Co. v. Jethmull, 26 Bom. 669 : (4 Bom. L.R 495) and G.I.P Rly. v. Dewshi, 31 Bom. 534 : (9 Bom. L.R 942) have been considered by Kumaraswami Sastri, J. in the Madras Full Bench case in the manner in which I view these decisions.

26. In G.I.P Rly v. Chandulal Sheopratap, 50 Bom. 84 : (A.I.R (13) 1926 Bom. 138), Mr. N.C Ghosh urges, the contrary view was taken, but no case is considered in that judgment, and the learned Chief Justice who delivered the judgment, merely observed at page 86 that the reasoning of the trial Judge that:

“as the Railway Administration had constituted a separate department for dealing with claims and that department kept a register of claims to which the Agent had access at any time, a notice to the Traffic Manager was a notice to the Railway Administration may be equity, but it is not logic.”

27. With great respect I do not agree with this view. It may be pointed out, however, that in this case the plaintiff himself did not appear to treat the Deputy Traffic Manager as the person who was entitled to receive the notice because on 25th November 1922 (about six months after he had written to the Deputy Traffic Manager) the plaintiff sent a notice of the claim to the Agent of the defendant company.

28. The latest case of the Bombay High Court is Shamji Bhanji v. N.W Rly., A.I.R (34) 1947 Bom 169 : (231 I.C 367). In this case it was held that it is sufficient if it is established on the evidence that there has been a substantial compliance with the provisions of Rs. 77 and 140 and, therefore, it is sufficient if a notice of claim to compensation is given to the General Traffic Manager, or Agent, or Manager of the Government administered railway. It is interesting to draw attention to the attitude which was adopted by the railway defendant in that case at page 181. It was boldly contended by Mr. Joshi for the Railway that neither the General Traffic Manager nor the General Manager fulfilled the category of the Manager stated in Section 140 of the Railways Act. I have already observed that in the present case the argument of Mr. Ghosh has been that the notice should have been served upon the General Manager. In other words, the railway in order to defeat the claims of the claimant does not hesitate to take up unattractive, disingenious, if not uncommendable and contradictory, defences.

29. Allahabad: The cases of G.I.P Rly. Co. v. Chandra Bai, 28 ALL. 552 : (3 A.L.J 329) and G.I.P Rly. v. Ganpat Rai, 33 ALL. 544 : (10 I.C 122) relied on by Mr. Ghosh have been sufficiently noticed by Kumaraswami Sastri, J. in the Madras Full Bench case. It is enough to state that in these two cases there was no question as to the Traffic Manager having been authorised by the Agent to receive the notices, or of the notices having been communicated to him as a fact in the usual course of official correspondence.

30. In Cawnpore Cotton Mills v. G.I.P Rl., 45 ALL. 353 : (A.I.R (10) 1923 ALL. 301), the learned Judges took the view that the word ‘may’ in S. 140 must be read as meaning ‘must’, a conclusion with which, with respect, I do not agree as indicated already. It was further held that-the service of the notice upon the Deputy Traffic Manager, Commercial, was not a sufficient compliance with the terms of S. 77. This decision may be supported on the fact stated at page 358 that the notice was given to the Deputy Traffic Manager, Commercial, and not on the Deputy Traffic Manager, Claims. If on the other hand, it was intended to lay down as a general rule of law that the notice given to the Deputy Traffic Manager, Claims, was not a sufficient compliance of S. 77, I would respectfully disagree with it.

31. Chaturbhuj Ram Lal v. Secy. of State, A.I.R (14) 1927 ALL. 215 : (99 I.C 622) takes a contrary view to the above Allahabad case, and in my opinion, takes the correct view. The head-note runs as follows:

“On receipt of a claim which should by S. 140 be addressed to the Agent, the Chief Commercial Manager has a choice of two alternatives; he can decline to deal with it on the ground that it has not been addressed to the Agent, and in the ordinary course if he does so, his duty is to return it to the sender with a request that it shall be addressed in accordance with the statute to the proper person. If he does not do so but retains it and either hands it to the Agent or deals with it himself, he must be taken to do so as the subordinate and Agent of the Agent and on the strength of the old maxim that ‘everything is presumed to be done correctly’, it must he presumed that if he does so he does it with the implied consent and therefore, with the authority of the Agent, and, therefore, where conduct of that kind is established the ordinary inference may be drawn and should be drawn that by the conduct of the Chief Commercial Manager, acting under the authority of the Agent, the Railway Administration have in fact waived compliance with the statutory requirement with regard to the person to whom the prepaid letter should be addressed.”

32. I would respectfully agree with these observations of the learned Judges.

33. The case of Balakram Atma Ram v. Secy. of State, A.I.R (22) 1935 ALL. 900 : (156 I.C 541) is not in point because in that case it was rightly declined that a notice to the Collector under Section 80 of the CPC, could not be treated as a notice under Section 17 of the Railways Act.

34. Calcutta: The cases of Secy. of State v. Dip Chand Poddar, 24 Cal. 306 : Nadir Chand Shaha v. Mr. Wood, 35 Cal. 194 : (12 C.W.N 450) : Woods v. Meher Ali Bepari, 13 C.W.N 24 : (3 I.C 479); Jankidas v. B.N Rly. Co., 16 C.W.N 356 : (13 I.C 509); E.I Rly. Co. v. Babu Madho Lal, 17 C.W.N 1134 : (19 I.C 673); Radhakishan Chooni Lal v. E.I Rly. Co., 19 C.W.N 62 : (A.I.R (2) 1915 Cal. 584); E.I Rly. Co. v. Ramgati Ram, 19 C.L.J 180 : (A.I.R (1) 1914 Cal. 645); E.I Rly. Co. v. Ramautar, 20 C.W.N 696 : (A.I.R (4) 1917 Cal. 103) and Kala Chand Shaha v. Secy. of State for India, 21 C.W.N 751 : (A.I.R (5) 1918 Cal. 539) have been sufficiently noticed and distinguished by Kumarswami Sastri, J., and I cannot usefully add to the weighty observations of that learned Judge with regard to these decisions. I propose to consider only those Calcutta cases which have not been noticed by him.

35. In Radha Shyam Basak v. Secy. of State for India, 44 Cal. 16 : (A.I.R (4) 1917 Cal. 640) after noticing some of the cases referred to above from the Bombay, Calcutta and Allahabad High Courts, Chatterjee, J., observed at p. 25 that it was not necessary to consider whether the notice to the Traffic Manager was a valid notice because it was found that the notice that was served in this case upon the Government through the Collector within six months was sufficient to satisfy the requirements of S. 77. The learned Judge, however, made these observations which may be quoted here:

“I think it right to state, however, that the position taken by the learned Government Pleader in this respect also is very debatable. He says the notice ought to have been to the Manager of the Railway, but there is no officer having that designation on this Railway; then he says the notice ought to have been served on the Agent, but the law does not require the notice to be given to the Agent in a State Railway and if a notice had actually been given to the Agent it could have been argued that it should have been given to the Manager. Then again there is no evidence that the Agent is the Manager or that the Traffic Manager is not the Manager.

On the other hand the time and fare table of the Railway which is presumably issued by the authority of the Railway Administration, directs the public to give notices to the Traffic Manager. I think, that it is the duty of the Government to throw more light on this point and inform the public that the Manager of the Railway for the purpose of serving notices is either the Traffic Manager or the Agent or somebody else.”

36. This attitude of the Railway is similar to that taken before us and before the Bombay High Court in Shamji Dhanji v. North Western Railway, A.I.R (34) 1947 Bom. 169 : (231 I.C 367) referred to above. Beachcroft, J. did not express any opinion as to whether the Collector was the proper person to receive notice under S. 77 on behalf the Government; but as the learned Government Pleader did not suggest that he was not, he accepted the position that the notice to the Collector was a notice to the Government. This case, therefore, is no authority in favour of the Railway.

37. Assam Bengal Railway v. Radhika Mohan Nath, A.I.R (10) 1923 Cal. 397 : (72 I.C 714) was the case of a privately administered Railway. It was held that the notice to the Traffic Manager is not a notice to the Agent. Richardson, J. pointed out at p. 398 that there was no evidence in the case that the claims of this kind were usually referred by the Agent to the Traffic Manager and there was no finding that the notice in fact reached the Agent. Ghose, J. in the concurrent judgment pointed out that in this case there was no evidence that the notice served on the Traffic Superintendent reached the Manager within six months of the delivery of the goods. This case is distinguishable on the facts which were the foundation for the decision.

38. Shamsul Haq v. Secy. of State for India in Council, 57 Cal. 1286 : (A.I.R (17) 1930 Cal. 332) is strongly relied on by the learn, ed advocate for the plaintiffs. In the course of the judgment, it is stated: (1) The object of Section 77 of the Railways Act, is to prevent state and possibly dishonest claims for loss, when owing to delay, it might be impossible to trace the transaction, etc., and that this section is intended as a weapon of defence against fraud, not as a means to enable the railway authorities to deprive their customers of their just dues. (2) Railway administration, entering into correspondence with a customer regarding a claim, may be said to have waived the requirement of a formal notice under S. 77. (3) The word “may” in S. 140 of the Act does not mean “must”. (4) Where, in the case of a railway administered by Government there does not happen to be an official called the “Manager” a notice sent to the “Chief Commercial Manager” may be sufficient. With respect I agree with these views of Lort Williams, J. It may be observed, however, that the observations of the learned Judge are obiter, because he says at p. 1290 that S. 77 has no application to the facts of the case as no notice was required to be served.

39. In Srisihidar Mandal v. Governor. General in Council, A.I.R (32) 1945 Cal. 412 : (49 C.W.N 240), Henderson, J. made some weighty, though caustic, observations as follows: (1) The law is certainly remarkable if a good claim is to be dismissed because a notice is given to the officer whose duty it is to investigate it. It would be an extraordinary thing if this is held to be an invalid notice. (2) The service of a notice under S. 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 S. 77 if in fact notice is given to the railway administration. The learned Judge then points out that the notice under Section 80 of the CPC, was duly served on the Government of India which was forwarded to the General Manager who did nothing whatever except to send it to the gentleman who received the notice under S. 77 directly from the plaintiff, and then observed:

“It is quite obvious that, if the notice under S. 77 had been sent to tbs 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.”

40. Patna: I now turn to the Patna cases. E.I Railway Co. v. Ajodhya Prasad, 49 I.C 498 : (A.I.R (6) 1919 Pat. 42)—in this case it was held that the notice under S. 77 must be served upon the Agent or the Manager of the Railway Company and not upon a subordinate official—a notice was at first served upon the District Traffic Manager but later on the plaintiff actually served a notice on the Agent describing it as a notice under S. 77 when the period of six months had expired. No argument was addressed to the learned Judges that by the course of conduct of the defendant railway notice on the District Traffic Manager should be held to be sufficient. The only relevant argument noted in the judgment was that “nevertheless by some indirect means it might be inferred that the Manager or Agent of the Company through the District Traffic Manager had notice of the plaintiff's claim.”

41. Moreover, the learned Judges found that there was no evidence with (of?) wilful neglect by the company or its servant, and therefore the suit was bound to fail even if it was held that there had been valid service of notice. See the judgment of Atkinson, J. at p. 498 and at p. 501. Manuk, J. in a short agreeing judgment merely drew attention to the terms of ss. 77 and 140.

42. E.I Rly. Co. v. Kali Gharan Ram Prasad, A.I.R (9) 1922 Pat. 106 : (69 I.C 103), is a case decided by Jwala Prasad, J. sitting singly. The observations of the learned Judge are obiter because he held that in case of non-delivery no notice under S. 77 was necessary, but he went on to observe that if the notice had been necessary, the plaintiff had proved that there was an assignment of the power of settling claims to the General Traffic Manager and the notice given to him was, therefore, sufficient. The learned Judge inferred this from the fact that a later notice which was given by the plaintiff to the Agent was indorsed by him to the General Traffic Manager for disposal.

43. Durqa Prasad v. G.I.P Rly., 3 Pat. 76 : (A.I.R (11) 1924 Pat. 98)—in this case it was found that the notice though wrongly addressed to the Agent was acknowledged by the General Traffic Manager who sent it to the Divisional Traffic Manager who in his turn after correspondence with the plaintiff finally expressed his inability to sustain the plaintiff's claim. The learned Judges pointed out that the Courts should not take narrow view of S. 77, which should be held to be complied with when a demand for compensation is made even though it does not contain the money value of the claim or any intimation that the claimant intends to file a suit. The case was remanded to the Subordinate Judge for rehearing upon the question whether the notice was actually served and directions were given as to the nature of the evidence that should be adduced. They distinguished Ajodhy Prasad's case, 49 I.C 498 : (A.I.R (6) 1919 Pat. 42) (supra) thus;

“In that case the notice was addressed to the Traffic Manager and it was held that was not a notice to the Agent. It is true that the learned Judges dissented from Woods v. Meher Alt Bepari, 13 C.W.N 24 : (3 I.C 479), but it does not seem to me that it was necessary for the purpose of deciding the question before them to consider the question whether actual delivery to the agent of a wrongly addressed notice would constitute service within the meaning of S. 140. Prima facie the plaintiff had good ground for thinking that the notice had been delivered to the Agent for the General Traffic Manager had not only acknowledged receipt of it but also directed an inquiry to be held and in the circumstances it is somewhat difficult to understand the flea of non-service now taken.”—underlined (here italicised) by me.

44. East Indian Railway Co. v. Bhimraj Srilal*, 5 Pat. 488 : (A.I.R (13) 1926 Pat. 413)—this case has been very strongly relied upon by Mr. Ghosh. He relies upon the observations of Kulwant Sahay, J. at page 492:

“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 sufficient notice as required by law.”

45. The question which fell to be determined was noticed by the learned Judge at p. 495 where he deals with the argument as to the delegation of the power to the Traffic Manager, and therefore, the notice to the Traffic Manager should be held to be a vaid notice. The contention was negatived on the ground that such a plea was not taken by the plaintiff and no issue was raised on the question of fact whether there was a delegation of the powers of the agent to the Traffic Manager. Attention was drawn to the conditions on the back of the receipt, but the learned Judge held that this did not, in his opinion, amount to a delegation of the power of the agent and then observed:

“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 company or from the course of conduct of the railway company which might lead the public to believe that notice given to a particular officer of the company would be a valid notice under S. 77 of the Act. But in the present case there is no such allegation and no such proof.”

46. It seems to me that the learned Judge refused to decide the question as a question of fact but he does not express any dissent from the view of the Madras High Court in the Full Bench case so often referred to above. In a later decision of this Court, about to be noticed, it was observed that the question which we are considering did not really arise for consideration in Bhimraj's case, 5 Pat. 488 : (A.I.R (13) 1926 Pat. 413).

47. E.I Rly. Co. v. Sowa Lall Sawan Lal, 10 P.L.T 24 : (112 I.C 616)—in this case it was held that the notice of a claim for compensation given to the Divisional Traffic Manager of the railway company cannot be held to be a valid notice within Section 77 of the Bail ways Act, unless it is shown that the power to receive notice under S. 77 had been delegated to him, and that this cannot be inferred from the mere fact that there is delegation of the power by the agent to such an officer to investigate claims of compensation and this cannot have any effect on the interpretation and operation of S. 77. The learned Judges observed at p. 26 that the case was concluded by the decision in Bhimraj Srila's case, 5 Pat. 488 : (A.I.R (13) 1926 Pat. 413). At p. 25 Boss, J. considered the effect of the conditions in cl. (4) on the back of the railway receipt which was the contract between the parties and observed;

“That clause only provides that claims for loss must be made to the clerk in charge of the station before delivery is taken, and that written statement of the claim must be sent to the Divisional Traffic Manager forthwith. This clause is followed by cl. (5) which recites Section 77 of the Railways Act. Obviously cl. (4)…. has nothing whatever to do with the procedure laid down in cl. (5) and no delegation of power to investigate claims…. could have any effect on the operation or interpretation of S. 77.”

48. These observations are undoubtedly in favour of the argument of Mr. N.C Ghosh; but these observations were wholly obiter because the learned Judge pointed out on the left hand column at p. 25 “it is quite clear that the suit instituted on 6th September 1923, was out of time.” He then went on to observe that the suit was also defective for absence of a notice under S. 77. With respect, I do not agree with the observations with regard to the question now in, controversy before us for the reasons given by me already.

49. B. & N.W Railway Co. v. Maharajadhiraj Kameshwar Singh, 12 Pat. 67 : (A.I.R (20) 1933 Pat. 45)—this is a very well-considered judgment of a Bench consisting of Courtney Terrell, C.J and Fazl Ali, J. (as he then was). It is pointed out at p. 71 that one of the defences-taken by the railway company was the familiar, though somewhat disingenuous, contention that the plaintiff failed to prefer a claim in writing to the railway administration. At p. 73 it is observed after referring to the correspondence which took place between the District Traffic Superintendent and the plaintiff:

“The company have persisted in a course of business by which they have allowed their District Traffic Superintendent to deal with claims for compensation. The Agent has at no time until the written statement in this case repudiated the action of his subordinate.”

50. Then the learned Chief Justice goes on to consider the argument based upon the Calcutta cases and observed;

“I am entirely unable to understand the reasoning which prompted these expressions of opinion and I decline to follow them. Section 140, in my opinion, merely provides a safe and unanswerable method for serving a claim upon the railway administration and enacts in effect that service upon the agent is service upon the company, but S. 77 enacts that the service must be upon the administration and inasmuch as a company must conduct its business through its authorised agents the only question to be decided is whether the District Traffic Superintendent is in fact in the circumstances of the case the duly authorised agent of the railway company. If the company by its course of business holds up any particular official as competent to deal with claims, then sevrice of notice upon such an official must be taken as against the company to be service upon the company. I agree with reasoning of Knmaraswami Sastri, J. in the Full Bench decision of the Madras High Court.”

51. With respect, I entirely agree with these observations. It will be observed that the learned Chief Justice reached this conclusion without noticing that the meaning of the expression, “railway administration” is enlarged by the context viz., the conditions on the back of the railway receipt and must include the officer who is shown in the conditions on the back of the railway receipt to receive the notice of claims, as I have pointed out earlier in the course of the judgment.

52. Having anxiously considered all the cases relied upon by Mr. N.C Ghosh in the course of his able and exhaustive argument I am of the opinion that the law has been correctly laid down in the two Full Bench cases referred to above in the Maharaja Dhiraj Kameshwar Singh's case, 12 Pat. 67 : (A.I.R (20) 1933 Pat. 45). I would answer the questions as follows: (1) The requirements of Section 77 read with Section 140 of the Railways Act, are satisfied by serving a notice within the prescribed period on the Chief Commercial Manager or any other subordinate officer of a Railway company owned by the Government provided it is established as a fact that the Railway company by its course of business or the terms of the contract between the parties has held out a particular official as competent to deal with the claims on receipt of notice to him. (2) The case of Bhimraj Srilal, 5 Pat. 488 : (A.I.R (13) 1926 Pat. 413), to the extent that it takes a contrary view, was incorrectly decided and the case of Maharajadhiraj Kameshwar Singh Bahadur, 12 Pat. 67 : (A.I.R (20) 1933 Pat. 45), was correctly decided.

Meredith, J.:— I entirely argee and have nothing to add.

Mahabir Prasad, J.:— I agree.

D.H

53. Answers accordingly.