Mullick, J.:— (After stating the facts, as set out above, proceeded as follows):—
The present second appeal is preferred by the plaintiffs and the points, upon which our decision is required, are, whether the notice to the East Indian Railway was valid and whether it was served according to law.
Now, with regard to the first point it is quite clear that the Courts below have taken a too narrow view of section 77 of the Indian Railways Act (Act IX of 1890). That section declares that no person shall] be entitled to compensation for the loss, destruction or deterioration of goods unless his claim to the compensation has been preferred in writing within six months from the date of the delivery of the goods for carriage by railway. The section merely requires that a demand for compensation shall be made and nowhere prescribes that the money value of the claim shall be stated.
It was next urged that the notice is bad because it does not intimate that the claimant intends to sue. The reply to this is that section 77 does not require the claimant to notify that he intends to bring an action. It merely requires that a claim to compensation should be preferred. It might have been otherwise if the statute had expressly required that notice of action shall be given as in Mason v. Birkenhead and Norris v. Smith and in certain classes of suits referred to in the Civil Procedure Code and the Bengal Wards Act. Therefore, in the absence of any authority, I must find that the Courts below have taken a too narrow view of the section and that the notice was a claim for compensation within the meaning of section 77.
The next question is whether the notice was served. This point has not been determined by the Lower Appellate Court, but as an application was made before him by the plaintiffs for permission to call additional evidence to prove service I think we should state what our view of the law is. The evidence shows that the office of the Agent of the East Indian Railway is not at Howrah but at 1, Fairlie Place. Calcutta. The Subordinate Judge has found that there has been no compliance with clause (c) of section 140 of the Act and the learned District Judge must come to a decision on this point. If he agrees with the Subordinate Judge, then the question will arise whether, notwithstanding his failure to comply with clause (c), the plaintiffs are entitled to prove that the notice was in fact delivered to the Agent and that there was service under clause (a). Now I think the answer to that question is in the affirmative and that the plaintiffs are entitled to prove that the notice has actually been delivered either by themselves or their agent or by some other person. In my opinion The Agent, East Indian Railway v. Ajodhya Prasad does not conflict with this view. 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 Ali Bepari, 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 section 140. Primâ 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 plea of non-service now taken. I think, therefore, that it was open to the plaintiffs to give evidence in the trial Court that the notice was in fact delivered to the Agent, but the question arises whether their omission to give that evidence in the trial Court can be cured in the Appellate Court. If the District Judge finds that sufficient cause has been shown then he will admit the evidence under Order XLI, rule 27, of the Civil Procedure Code and in this connection it will be useful to invite the learned Judge's attention to the recent decision of their Lordships of the Privy Council in Raja Indrajit Pratap Bahadur Sadi v. Amar Singh.
The result, therefore, is that the decree of the learned District Judge is set aside and the appeal is remanded to him for rehearing in accordance with law., Costs to abide the result.
Bucknill, J.:— I agree.
Appeal remanded.