Govindlal Nityanand Agarwal v. Governor-General In Council

1. This is an application to revise the judgment of the Third Subordinate Judge, 1st Class Nagpur, empowered under Section 18 of the C.P Courts act, in civil Suit No. 89 of 1943 dismissing the plaintiff's suit on 24-4-1944.

2. On 7-7-1942 the management of the Delhi Cloth and General Mills Company Limited sent 4 bales of towels from Delhi to Itwari in the name of the self and endorsed the same in favour of the plaintiff Govindlal, a minor.

3. The plaintiff received only 3 bales at the Itwari station. One bale that was missing contained 40 dozen towels and then market rate being Rs. 11 per dozen. The plaintiff made a complaint to the Station Master as well as to the Superintendent General of the Bengal Nagpur Railway Company and on 19-10-1942 sent a notice to the Superintendent General B.N.R by registered post through his pleader demanding settlement of his claim as early as possible. That was acknowledged by the Superintendent General on 29-10-1942. As the plaintiff received no further response, he on 9-5-1943 served notices purporting to be under Section 80 of the CPC as well as under Section 77 of the Indian Railways Act, on the Secretary to the Central Government, New Delhi, and the Manager G.I.P Railway Victoria Terminus Bombay and the Agent B.N.R, Calcuttta. The Deputy Director, Railway Board, Simla, on 24-5-1943 intimated to the plaintiff that this notice had been forwarded for disposal to the Agent and General Manager, B.N.R, Calcutta, who was the competent authority to deal with the matter and to whom all further references on the subject should be made. Since the decision of the suit, the Bengal Nagpur Railway has come under the direct control of the Governor-General in Council as the G.I.P Railway already was before the institution of the suit.

4. In the lower Court both the Governor-General in Council representing the G.I.P Railway and the Agent B.N Railway conceded that there was the loss of one bale in transit and they did not contest the amount of damages claimed. They, however, contended that as no notice as contemplated in Section 77 of the Railways Act was properly served on the Manager of the G.I.P Railway or the Agent of the B.N Railway the plaintiff was not entitled to claim any damages. That contention prevailed in the lower Court with the result that the plaintiff's claim was dismissed.

5. The main dispute turns on the question whether the notice that was given to the Superintendent General on 19-10-1942 (Ex. P-15) fulfilled the requirements of Section 77 of the Railways Act. In a number of cases it was held that the notice contemplated in Section 77 of the Railways Act must be served on the Agent or the Manager of the Company in one of the modes prescribed in Section 140 of the Railways Act. It was also held that notice served on an officer appointed to investigate the claim is not notice which could properly answer the requirements of Section 77 of the Indian Railways Act. These cases are referred to in 8 N.L.R 341 and 24 N.L.R 1.2 But as there was divergence of the judicial opinion on the point the question came to be considered by a Full Bench in 45 Mad 1353 in which it was held that the notice of claim under Section 77 of the Indian Railways Act must be served upon the Agent or Manager of the Railway or upon any officer deputed by the Company or its Agent or Manager to receive such notice and that it would be sufficient if the Agent or Manager had somehow knowledge of the claim within the specified time. Kumaraswami Sastri, J. was of opinion that S. 140 was an enabling provision and that the word ‘may’ did not mean ‘must’ so as to make other modes of service ineffectual even in cases in which the notice was actually given. The learned Judges however concurred in the conclusion that the suit had been rightly thrown out because the notice had not been sent to the Agent and there was no evidence that the Agent had notice within the prescribed period, that is of six months. Since the decision of this case, the judicial opinion has turned against the too literal interpretation that used to be put in the past on the terms of Sections 77 and 140 of the Railways Act, so as to save just claims from being throttled by purely technical considerations based on the letter of the law. In 57 Cal. 1286,4 Lort-Williams, J. pointed out that the object of S. 77 is to prevent dishonest claim for loss when owing to delay it might be impossible to trace the transaction and that it was 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. In 12 Pat. 675 it was held by Courtney-Terrell, C.J, that if the company in the course of its business allowed their District Traffic Superintendent to deal with the claim of compensation that officer must be deemed to be the duly authorised agent of the Railway Company for the purposes of notice under Section 77 read with Section 140 of the Railways Act. These decisions may call for reconsideration of 8 N.L.R 34 and 24 N.L.R 1 in some proper case that may arise in this Court hereafter. The view taken in I.L.R (1944) Nag. 6126 gives an indication of the trend towards a more judicial approach to the problem.

6. So far as this case is concerned, it can be decided on the special facts which have been brought to light in this Court, Rule 4 printed on the back of the consignment note whice was current in July 1942 directed that the claims against the Railway Company for loss should be made to the Superintendent, Claims, B.N Railway. From the affidavit filed on behalf of the B.N Railway in this Court it appears that in 1922 (?) and upto 19-5-1943 the Superintendent General was receiving written statements of all claims. On 20-5-1943 that officer was invested with the power of receiving and disposing of all claims. In November 1943, the Superintendent General was authorised to receive notices under Section 77 of the Railways Act and dispose of all claims not exceeding Rs. 2000 without the sanction of the General Manager. After November 1943 any notice such as the one given by the plaintiff to the Superintendent General would be as good as one given to the Agent.

7. It is to be seen what is the legal effect of the delegation of authority in November 1943, Whether the notice meant for the Railway Administration is to be given to one Railway officer or another is merely a matter of procedure. As pointed out by Kumaraswami Sastri, J., in 45 Mad. 135 at pp. 154, 155 the question whether a particular officer is authorised by the Agent to receive notices on his behalf is a question of fact to be determined in each case. Agency may be proved by direct evidence of authority or by course of conduct justifying the inference of authorisation. In the present case, the Superintend dent General was in the course of the business always held out as the person competent to receive claims and inquire into them so as to lead the public to believe that he was the officer appointed to receive notices under Section 77 of the Railways Act. The fact that he was expressly authorised in November 1943 was perfectly in conformity with the course of previous practice. It only made, explicit what was implicit before. It is a well recognised rule of construction of statutes that enactments affecting procedure are deemed to be retrospective in their operation. Applying that principle to the order of the Agent delegating his power to the Superintendent General in November 1943 to receive notices under Section 77 of the Railways Act, that order would be deemed to be retrospective in its operation in respect of all the claims which were awaiting disposal on that day.

8. Both the Railway Companies have admitted that the loss of one bale had occurred in transit. That admission itself dispenses with the enquiry into the validity or invalidity of the notice of the claim made by the plaintiff, since as pointed out in 57 Cal 1286 Section 77 of the Railways Act is only intended to give an opportunity to the Railway Company to make satisfactory investigation. In view of the special facts of this case, I hold that the notice given to the Superintendent General within 6 months was sufficient to bind the Railway Company in terms of Section 77 of the Railways Act even though the Superintendent General had not then been technically authorised to receive notices under that section and that the failure to give notice to the Agent does not disentitle the plaintiff from claiming compensation which is justly due to him.

9. I set aside the lower Court's decree and send back the case to the lower Court for trial on its merits. Costs will abide the result. Counsel's fees Rs. 15.

10. Case remanded.