Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision Case No. 3479 of 1953

Judges

Bachawat, J.

Acts

sec. 140.26. Construing sec. 106 of the Transfer of Property Act
sec. 72 of the Indian Railways Act the Railway Administration
sec. 77, read with sec. 3, sub-sec. (6) of the Indian Railways Act
sec. 77 and 140 of the Indian Railways Act
sec. 77 read with sec. 140, Railways Act,
sec. 77 of the Indian Railways Act.2.
sections of the Indian Railways Act
sec. 77 of the Indian Railways Act.
Indian Post Office Act, 1866.8.
sec. 77 of the Railways Act

See more information ...

Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This revision arises from a suit for damages for non-delivery of goods consigned from Baghbazar (East Indian Railway) to Dhubri (Assam Railway). The plaintiff had, within six months of delivery of the goods for carriage, sent a written claim by registered post dated 10th June 1950 to the Chief Commercial Manager, East Indian Railway.

At trial the court framed three points for decision: (1) whether the statutory notices were duly served and legally valid; (2) whether the court had jurisdiction to try the suit; and (3) whether the plaintiffs were entitled to recover compensation and to what extent. The trial court held that service on the Chief Commercial Manager was not service on the Manager and therefore not compliant with sec. 77 of the Indian Railways Act; but the court found it had jurisdiction and that, but for non-service, plaintiff would have been entitled to recover the price of the goods.

A Full Bench of the Court of Small Causes affirmed the trial court's findings on points (2) and (3) and agreed on point (1), thereby affirming dismissal. The revision petition to the present court raised, as the sole question before this court, whether the notice under sec. 77 of the Indian Railways Act was duly served on the Railway Administration.

Additional evidence was admitted before this court: a public notification issued by the General Manager (published in the Amrita Bazar Patrika, 25 Nov 1943) stating that notices of claims under secs. 77 and 140 may also be made on specified Chief Commercial Managers. The Union's counsel did not dispute the existence or force of that notification on the relevant date.

Legal Issues Presented

Whether the notice of claim dated 10th June 1950, sent to the Chief Commercial Manager, East Indian Railway, constituted due service of a claim under sec. 77 of the Indian Railways Act.
(Framing by lower courts) Whether the trial court had jurisdiction to try the suit and whether the plaintiffs were entitled to compensation — although these points were not contested before the revisional bench and the present court accepted the lower courts' findings on them.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
55 C.W.N. 662; (2) A.I.R. 1952 Cal. 341; Civil Revision Case No. 3402 of 1954 (Makhan Lal Agarwalla v. The Union of India)	Identification of the General Manager as the "Manager" within secs. 3(6) and 77 and on issues of authority to receive claims	Court relied on these authorities to hold that the General Manager is the Manager for the purposes of secs. 3(6) and 77 and therefore the question of delegation/authority to subordinate officers is relevant.
I.L.R. VII Lahore 238; A.I.R. 1926 Lahore 253 (Sir Shadi Lal CJ)	Principle that a principal (here the Manager/Agent of railway) may act through an agent; delegation to subordinate officers can be valid where the principal authorises it	Used to support the proposition that the Manager can receive claims through an authorised agent and that delegatus non potest delegare does not prevent the principal delegating authority.
Unspecified case where Mr. Justice Broadway commented on Goods Tariff pamphlet (cited in text)	Authority may be conferred by the Agent issuing a public notification/manual indicating a subordinate is competent to receive claims	Cited in support of holding that issuances or manuals by the Agent can show that a subordinate has authority to receive claims, analogous to the notification relied upon in the present case.
Several Calcutta and C.W.N. authorities (17 C.W.N. 1185; 19 C.L.J. 180; 28 C.W.N. 438; 16 C.W.N. 356; 19 C.W.N. 62; 24 Cal. 306; 20 C.W.N. 696)	Decisions establishing that proof of authority is required to treat service on a particular official as service on the Manager; and that sufficiency of service is a question of fact	Court reiterated the necessity of proving authority as a question of fact and distinguished cases where authority had not been proved from those where authority was established.
A.I.R. 1949 Pat. 347 (Full Bench, Patna High Court)	Sec. 77 read with sec. 140 satisfied by serving notice on Chief Commercial Manager or other subordinate if it is established that the official is held out as competent by course of business or contract	Adopted to support the proposition that service on a subordinate will suffice where the subordinate is held out by the railway as competent to receive claims.
(L.R.) 45 I.A. 222 : A.I.R. 1918 Privy Council 102 (Tanham v. Nicholson)	Agent receiving notice effects good service on principal even if the principal never actually sees the notice	Invoked by analogy to show that service on an authorised agent (Chief Commercial Manager) constitutes service on the Manager.
56 C.W.N. 33 (Full Bench; judgment by Mr. Justice Das)	Notice under sec. 77 is for the benefit of the Railway Administration and may be waived; but waiver must be made in the suit and cannot be prior thereto (as observed)	Court noted the authority for waiver of sec. 77 notice but declined to rely on waiver here; instead the court rested decision on actual authority shown by the notification.

Court's Reasoning and Analysis

The court's analysis proceeds from statutory text and factual proof admitted in the revision:

Statutory framework: The court examined sec. 3(6) (definition of "Railway Administration"/"Manager"), sec. 77 (time and form of claim for refund/compensation), and sec. 140 (modes of service on a railway administration administered by Government — delivery, leaving at office, or registered prepaid post).
Identity of the Manager: Citing prior authorities, the court held the General Manager is the "Manager" within secs. 3(6) and 77, so formal requirements attach to service on the Manager/railway administration.
Agency and delegation: The court accepted established law that the Manager may act through authorised agents and that service on an authorised agent constitutes service on the Manager. The court relied on precedents recognizing that where an Agent/Manager issues directions or communications holding out a subordinate as competent to receive claims, service on that subordinate is sufficient.
Proof of authority is a question of fact: The court reiterated that when it is asserted a particular official had authority to receive claims, that authority must be proved on evidence; in the absence of proof, service on such officials has been held insufficient in prior cases.
Application to the facts: The court admitted the Amrita Bazar Patrika (25 Nov 1943) notification into evidence (the Union's counsel did not dispute its existence) which publicly stated that notices of claims under secs. 77 and 140 could be made on specified Chief Commercial Managers. On the basis of this notification, the court found as a fact that the Chief Commercial Manager was duly authorised by the General Manager at the relevant time (10 June 1950) to receive claims.
Mode of service: Even if sec. 77 requires "service" and sec. 140 prescribes modes of service on the Manager, the claim was sent by duly prepaid registered post to the Chief Commercial Manager, the letter was delivered and acknowledged (a reply was sent). Thus service was effected in a mode contemplated by sec. 140, and because the Chief Commercial Manager was an authorised agent, such service operated as service on the Manager.
Waiver: Although authorities show the requirement of notice under sec. 77 can be waived by the railway administration, the court declined to rest its decision on waiver arising from the notification. The court expressly preferred to decide on the basis of proven authority rather than a prior waiver.
Cautionary note: The court emphasised that authority is a matter of fact at the relevant time, so the holding that the Chief Commercial Manager was authorised applies to that relevant date (10 June 1950) and does not automatically apply to other dates; authority must be proved in each case.

Holding and Implications

Holding: THE COURT ADJUDGES AND DECLARES that the notice under sec. 77 of the Indian Railways Act has been duly served upon the Railway Administration.

Consequent Orders and Direct Effects:

The findings of the trial court on points Nos. (2) and (3) (jurisdiction and entitlement to compensation) were affirmed by this court.
The decree of dismissal of the trial court dated 12th June 1952 and the Full Bench order dated 3rd June 1953 were set aside.
The suit was remanded to the trial court so that it may pass a suitable decree in favour of the plaintiff consistent with the affirmed findings (i.e., having regard to the court's conclusion that the notice under sec. 77 was duly served).
No order as to costs was made in the Rule.

Broader Implications (as stated or expressly limited by the court):

The court did not purport to lay down a universal rule that service on a Chief Commercial Manager is always sufficient; rather, it emphasised that authority must be proved by relevant facts and notifications in force at the relevant time. The court observed that the decisions of the Court of Small Causes on these points are numerous and conflicting and suggested that the question should be referred to a Full Bench on a suitable occasion. The decision therefore resolves the present case on the particular facts and evidence (the 1943 notification) and does not establish an unfettered precedent beyond those confines.

Concluding Note

This summary strictly reflects the content and reasoning contained in the provided opinion. No facts, findings, or legal propositions beyond those expressly stated in the opinion have been introduced.

Show full summary ...

Messer Radhamadhab Kundu And Ors. v. Union Of India, Representing, East India Railway Administrotion And Another Opposite Parties.

Bachawat, J.:— The Revision petition arises out of a suit for damages for non-delivery of goods delivered to the East Indian Railway Administration for consignment from Baghbazar, a station on that Railway to Dhubri, a station on the Assam Railway. The East Indian Railway is owned and administered by the Union of India. Prior to the suit the plaintiff preferred a claim in writing by letter, dated the 10th June, 1950 sent by registered post to the Chief Commercial Manager, East Indian Railway. The letter was sent within six months from the date of the delivery of the goods for carriage by the Railway Administration.

1. The trial court formulated three points for decision: (1) Were the statutory notices duly served? Are they legally valid? (2) Has the court jurisdiction to try the suit? (3) Are the plaintiffs entitled to recover any compensation, if so, to what extent? On point No. 1 the trial court held that the service upon the Chief Commercial Manager, East indian Railway, was not service upon the Manager, East Indian Railway and, therefore, there has been no legal service of the claim under sec. 77 of the Indian Railways Act.

2. On point No. 2 it held that the court had jurisdiction to try the suit. On point No. 3 it held that but for non-service of the notices under sec. 77 of the Railways Act the plaintiff would be entitled to recover the price of the goods not delivered at Rs. 90|- per maund.

3. A Full Bench of the Court of Small Causes affirmed the finding of the trial court on points Nos. 2 and 3. Agreeing with the trial court's decision on point No. 1 the Full Bench affirmed the decree of dismissal by the trial court.

4. Before me the findings of the courts below on points Nos. 2 and 3 have not been alleged. The sole question, therefore, is whether the notice under sec. 77 of the Indian Railways Act was duly served on the Railway Administration.

5. In the interest of justice additional evidence has been received in this court. It appears that the General Manager had issued a public notification to the following effect:—

“service of notice of claims under sec. 77 and 140 of the Indian Railways Act The Public are advised that service 01 notice of claim for compensation for animals or goods lost or damaged and for refund of overcharges or other claims required to be made on the General Manager, E.I Railway, Calcutta, may also be made on the undernoted officials:—

(1) The Chief Commercial Manager, Howrah Goods E.I Ry., Howrah, in respect of bookings over and via the E.I Ry. to Howrah and other stations in the Calcutta area.

(2) The Chief Commercial Manager, Claims, Mint House, E.I Ry. Benares, U.P in respect of bookings to all other E.I Ry. stations and

(3) The Chief Commercial Manager, E.I Ry., Fairlie Place, Calcutta, in respect of (1) and (2).

6. In proof of this Notification, a copy of the Amrita Bazar Patrika, dated the 25th November, 1943 has been tendered by the learned Advocate for the petitioner and has been received without objection from Mr. Bose. Mr. Bose, who very fairly conducted the case on behalf of the Union of India did not dispute that there was such notification by the General Manager and that it was in force on the relevant date.

7. The relevant sections of the Indian Railways Act are as follows:—

3(6). “Railway Administration” or “Administration” in the case of a railway administered by the Government, means the Manager of the Railway and includes the Government, and, in the case of a railway administered by a railway company, means the railway company:

77. A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.

140. Any notice or other document required or authorised by this Act to be served on a railway administration may be served, in the case of a railway administered by the Government, on the Manager, and, in the case of a railway administered by a railway company, on the Agent in India of the railway company—

(a) by delivering the notice or other document to the Manager or Agent, or

(b) by leaving it at his office; or

(c) by forwarding it by post in a pre-paid letter addressed to the Manager or Agent at his office and registered under Part III of the Indian Post Office Act, 1866.”

8. The requirements of sec. 77 read with sec. 3(61 are satisfied if the claim is preferred in writing within the time prescribed either to the Manager of the East Indian Railway Administration or to the Union of India, who owns and administers the railways,

9. Following (1.) 55 C.W.N 662; (2) A.I.R 1952 Cal. 341 and (3) Civil Revision Case No. 3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) I hold that the officer designated as the General Manager is the Manager within the meaning of secs. 3(6) and 77. It is not, therefore, necessary to discuss the consequence, which will follow if there is no Manager in existence as contemplated in sec. 3(6) and the discussion on this point in (2) A.I.R 1952, Cal. 341 at 345, (4) I.L.R 57 Cal. 1286 and (5) 44 Cal. 16 is not material.

10. In my opinion, the requirements of see. 77 are satisfied if the claim is preferred in writing to any person authorised by the Manager to receive the claim on his behalf.

11. The Manager can do by means of an agent whatever he can do himself. He can, therefore, receive a claim preferred under sec. 77 through his agent.

12. It is to be observed that under sec. 72 of the Indian Railways Act the Railway Administration is responsible as bailee only for goods delivered for carriage to the railway administration. It is clear beyond doubt that if the goods are delivered for carriage to a duly authorised agent of the Manager, the Railway Administration is responsible as a bailee for the goods so delivered. It has never been contended that it cannot be contended that the goods must be delivered to the Manager personally before the railway administration can be held responsible for the safe carriage of the goods. In my opinion, similarly it cannot be contended that the claim under sec. 77 of the Indian Railways Act must be thrust into the hands of the Manager personally and that the Manager cannot receive the claim through his agent.

13. In (6) I.L.R VII Lahore, 238 : A.I.R, 1926, Lahore, 253 at 255, Sir Shadi Lal, Chief Justice, observed:—

“There is no warrant for the proposition that the Agent of a railway could not delegate this duty to a subordinate officer. The maxim delegatus non potest delegare lays down the general rule that when a principal has entrusted a power or a duty to an agent, the latter cannot delegate that power or duty to another person. But the law enacted by sec. 77, read with sec. 3, sub-sec. (6) of the Indian 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 tacit per se.”

14. In the same case Mr. Justice Broadway observed:

“The North-Western Railway has issued a Goods Tariff Pamphlet or Manual in which the public are informed that applications in connection with claims for compensation should be made to the Traffic Manager, Claims Section. Lahore. This Goods Tariff Pamphlet or Manual has been issued under the authority of the Agent of the North Western Railway. It seems to me clear, therefore, that the Agent has authorised the Traffic Manager, Claims Section, to receive notices in connection with claims for compensation and that therefore any member of the public addressing the Traffic Manager, Claims Section, in connection with a claim for compensation or loss of goods, etc., must be held to have given the requisite notice to the Agent”

15. Similarly, having regard to the Notification mentioned above it must; be held that the Manager has duly authorised the Chief Commercial Manager to receive the claims preferred under sec. 77 and that a claim preferred to the Chief Commercial Manager is a claim duly preferred under sec. 77.

16. Where it is contended that a particular official has authority from the Manager to receive a claim, such: authority must be proved. In the absence of such proof it has been held that it was not sufficient to send the claim to an official such as the Traffic Manager (7) 17 C.W.N 1185 (8) 19 C.L.J, 180 (9) 28 C.W.N 438; or the Goods Superintendent (10) 16 C.W.N 356 (11) 19 C.W.N 62 or the Traffic Superintendent (12) 24, Calcutta, 306 or the Claims Superintendent (13) 20 C.W.N 696.

17. In (13) 20 C.W.N 696 at 698 the court observed:

“Where a particular officer is authorised by the Agent to receive such notice on his behalf is a question of fact that must be decided on evidence.”

18. On this ground there being no proof of authority the court distinguished the case in 13 C.W.N 24, where service on the Traffic Manager was held to have been sufficient.

19. In (1) 55 C.W.N 662 (2) A.I.R 1952 Cal. 341 and (14) 59 C.W.N 1069 it has been held that sending of the claim to the Chief Commercial Manager was not sufficient compliance with sec. 77 of the Indian Railways Act. In these cases, there was no proof that the Chief Commercial Manager was authorised by the Manager to receive the claim on his behalf. I must note that the decisions in (4) I.L.R 57 Cal. 1286, (15) 49 C.W.N 240 and (2) A.I.R 1952 Cal. 341 in so far as they broadly decide that the notice to the Chief Commercial Manager simpliciter given in the absence of proof of his authority are inconsistent with 55 C.W.N 662. The last case is commented upon but is not actually dissented from in (16) 59 C.W.N 278.

20. Sending of the claim to the Chief Commercial Manager is, however, sufficient where it is established that he is duly authorised by the Manager to receive the claim on his behalf.

21. In (17) A.I.R 1949 Pat. 347 Mr. Justice Manohar Lall in delivering the judgment of a Full Bench of the Patna High Court observed: “The requirements of sec. 77 read with sec. 140, 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.”

22. I am satisfied that the Chief Commercial Manager was duly authorised by the General Manager of the Rail-way concerned to receive the claim at the relevant time and, therefore, sending of the claim to him by letter dated the 10th June, 1950 was sufficient compliance with sec. 77 of the Railways Act.

23. Assuming, that sec. 77 requires “service” of the claim on the railway administration it is clear beyond doubt that in spite of sec. 140 the claim need not be served on the Manager, and that it may be served on the Government administering the railways, for by sec. 3(6) the railway administration includes the Government, see I.L.R 44 Cal. 16.

24. There is a conflict of opinion on the question whether if the claim is sent to the Manager it must be served upon him in accordance with sec. 140. In (18) I.L.R 35 Cal. 194, (19) 14 C.W.N 188 (2) A.I.R 1952 Cal. 341 and (3) Civil Revision Case No. 3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) it has been held that if the Manager is sought to be served, he must be served in one of the modes prescribed by see 140. On the other hand, it has been observed in (20) I.L.R 57 Cal. 1286 and (21) 34 C.W.N 1079 that service on the Manager may be made in a manner otherwise than that prescribed by sec. 140.

25. Assuming that if the Manager is served he must be served in one of the modes prescribed by sec. 140 I am clearly of the opinion that the notice has been so served on the Manager in this case. The claim was sent to the Chief Commercial Manager by duly prepaid registered post. The letter was duly delivered to and received by the Chief Commercial Manager. In fact, the Chief Commercial Manager sent a reply to the letter. The claim was, therefore, July served upon the Chief Commercial Manager in one of the modes prescribed by sec. 110. The Chief Commercial Manager being an agent of the Manager duly authorised to receive the claim on his behalf, service on the Chief Commercial Manager is service on the Manager as contemplated by sec. 140.

26. Construing sec. 106 of the Transfer of Property Act which provides for service of the notice to quit inter alia by sending it by post to the party concerned or by tender or delivery to him personally their Lordships of the Judicial Committee in (22) (L.R) 45 I.A 222 : A.I.R 1918 Privy Council 102 observed “Service of a notice upon or delivery to such an agent would be good service or delivery to the principal though in fact the notice was destroyed by the agent and never was seen or heard of by the principal, (Tanham v. Nicholson) (23) (1872) 5 H.L 561”.

27. Similarly, service of notice on the Chief Commercial Manager who is the duly authorised agent of the Manager is service of the notice on the Manager.

28. In (3) Civil Revision Case No. 3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) it has been held (a) that the requirements of the notice under sec. 77 may be waived by the railway administration, (b) that there was such waiver in that case in view of the notification authorising the public to send the claim to the Chief Commercial Manager.

29. It is well settled that the requirements or the notice under sec. 77 may be waived.

30. In (24) 56 C.W.N 33 at page 90 Mr. Justice Das in delivering the judgment of a Full Bench of this Court observed: “The service of a notice of claim under sec. 77 of the Indian Railways Act is intended for the benefit and protection of the Railway Administration and may”, therefore, be waived.”

31. In the very same case Mr. Justice Das, however, also observed “Such waiver must be made in the suit for refund or compensation and cannot be prior thereto.”

32. These observations seem to have escaped the attention of the Division Bench in Civil Revision Case No. 3402 of 1954 (Makkan Lal Agarwalla v. The Union of India).

33. I, therefore, prefer not to rest my decision on the ground that there has been or could be waiver of the notice under sec. 77 of the Railways Act simply by reason of the notification mentioned above.

34. I rest my decision on the ground that having regard to the notification the Chief Commercial Manager, East Indian Railway Administration, was at the relevant point of time the duly authorised agent of the Manager, East Indian Railway Administration, and as such sending of the claim to the Chief Commercial Manager was due preferment of the claim to the Manager, East Indian Railway Administration.

35. I must, however, sound a note of warning lest this judgment may be a trap for the unwary public simply because the Chief Commercial Manager has been held to be the duly authorised agent of the Manager on the relevant date namely, on the 10 th of June, 1950, it does not necessarily follow that he is now the duly authorised agent of the Manager.

36. Authority must be proved from the relevant facts and the notifications, if any, in force at the relevant point of time. Further authority must be proved as a matter of fact in each case

37. In this judgment I have chiefly-confined to the decisions of this Court. I observe that the numerous decisions of this Court are very perplexing and contradictory to each other. I think on a suitable occasion this point has to be referred for decision to a Full Bench of this Court.

38. I, therefore, pass the following order:—

The findings of the trial court on) points Nos. (2) and (3) mentioned in the judgment of the trial court are hereby affirmed. This Court adjudges and declares that the notice under sec. 77 of the Indian Railways Act has been duly served upon the Railway Administration. The suit is remanded to the trial court in order that the trial court may pass a suitable decree in favour of the plaintiff having regard to the findings mentioned above.

39. The Rule is made absolute. The decree of the trial court dated the 12th June, 1952 and the order of the Full Bench, dated the 3rd June, 1953 are hereby set aside and the suit is remanded to the trial court to be disposed of in accordance with law and in accordance with the observations made above.

40. There will be no order as to costs in this Rule.

41. The copy of the Amrita Bazar Patrika, dated the 25th November, 1043. may be returned to the learned Advocate for the petitioner after a certified copy is kept on the record of this Court.

S.N.S

Messer Radhamadhab K... v. Union Of India, Repr...