1. The plaintiffs who are a firm carrying on business at Jubbulpore sued the defendants E.I.Ry Co., for damages for non-delivery of goods consigned to them at Piparia in the Small Cause Court at Sohagpur. The suit was dismissed for want of proper notice to the E.I.Ry Co. Plaintiffs apply in revision to have the decree set aside.
2. It is contended on behalf of the applicants (1) that the suit being based on non-delivery of goods and not on loss no notice is necessary under Section 77 of the Indian Railways Act; (2) that if; notice was necessary, sufficient notice was given; and (3) that in any case the Court should have examined the parties on this point.
3. As regards point (I), the learned pleader for applicants, relies on a recent, case of E.I Ry. Co. v. Kali Chman Rrwad 1922 Pat. 106 , 3 P.L.T 215 , 69 I.C 103 in which it was held by a single Judge of the Patna High Court that no notice is necessary under Section 77 of the Indian Railways Act in a case of a claim for compensation for non-delivery of goods as distinct from a case of a claim for loss, destruction or deterioration of goods.
4. A contrary view has been taken by the Madras High Court, in the M. & S.M Ry. Co v. Hundoss Banmalidoss [1918] 41 Mad 871 , 35 M.L.J 35 , 24 M.L.T 38 , 8 L.W 340 , 49 I.C 69 in which a Bench of the Madras High Court held, that Section 77 of the Indian Railways Act applies not only to claims for compensation arising out of loss, destruction or deterioration of goods but also, to claims arising out of non-delivery or wilful mis-delivery.
5. In Deorao v. G.I.P Ry. Co. [1912] 8 N.L.R 34 , 14 I.C 684 which was a case of non-delivery, this Court field that the suit was bad for lack of proper notice. The question of necessity of notice, does not seem to have been expressly raised. So far as I am aware, the Patna High Court case above referred to is the first case in which it has been held that there is any distinction between a claim based on non-delivery and a claim based on loss or damage.
6. It has been contended by the learned pleader for applicants that the remarks in the Madras High Court judgment are obiter dicta. This is not in my opinion correct. In that case an express issue of limitation was raised as to the suit being barred under S. 77 of the Act for want of notice, and in dealing with this issue the learned Chief Justice of the Madras High Court dealt with the whole question of notice and pointed out that the liability of Railway Companies is that of a bailee under Section 152 and 161 of the Indian Contract Act, the latter of which covers all cases of non-delivery and mis-delivery, and points out at page 877 that these sections of the Contract Act, which are applied by the Indian Railways Act, purport to deal not merely with the bailee's duty of safe custody but also with the performance of the bailee's duty to deliver at the proper time. Therefore chapter 7 of the Indian Railways Act must be taken, and was intended, to cover the whole liability of the Railway Company including among other things the responsibility of the Railway Company for mis-delivery by whatever reason caused. That being so, when S. 77 required notice in any claim for compensation for the loss, destruction or deterioration of animals or goods, a notice is required in all claims which arise with reference to the liability defined in the earlier Section 72 and in the spaicified sections of the Section 151 and 161 of the Contract Act the latter of which covers all cases of non-delivery or mis-delivery. S. 9 of Act III of 1865, which is reproduced in Section 76 of the Indian Railways Act, refers to loss, damage or non-delivery of goods, but in Section 76 of the Indian Railways Act it was not thought necessary to reproduce the word “non-delivery, the reason being that cases of non-delivery are already sufficiently provided for by the reference to Sections 152 and 161 of the Contract Act in the earlier section. In this matter of requiring notice to the Railway Company within a reasonable time in order to enable them to make enquiries and if possible, to recover the goods, there is really no reason for making a distinction between cases in which goods have been delivered inadvertently to the wrong person and cases such an the present in which they were delivered to a person other than the consignee who claimed to be entitled to them hut did not ??? the railway receipt as he should have done in support of hit claim. We ought not to import distinctions of this sort into the Railways Act unless they rest upon some basis of sound reason which would be likely to have commended itself to the legislature.”
7. With these observations of the learned Chief Justice of the Madras High Court I respectfully agree. The view of the Patna High Court is based principally on Articles 30 and 31 of the Indian Limitation Act, and it is said that there is a cardinal difference between “non-delivery” and the 14 loss, destruction or deterioration” of goods while in charge of a carrier such as the Railway Company. In the former there is a deliberate withholding of property from the person entitled to its delivery and in the latter the loss, destruction or deterioration takes place on account of certain extraneous causes. In the latter case there is no deliberate withholding of the property chough there may be wilful neglect in not taking proper care of the goods. “S. 77 requires notice of the claims arising out of loss, destruction or deterioration of goods delivered to be carried by a Railway Company to be given to the Railway Administration within six months from the date of the delivery of the goods to be carried. This is obviously with a view to enable the Railway Administration to make an enquiry and investigation as to whether the loss, destruction or deterioration was due to the plaintiff's laches or due to the wilful neglect of the Company or its servants, or due to the theft or robbery committed by the servants of the Company. Unless notice of the loss, destruction or deterioration is given promptly, the enquiry would be prejudiced and therefore. S. 77 prescribes that notice must be given within six months from the date of the delivery of the goods. But in a case of non-delivery such an enquiry will not be necessary. In this view also S. 77 has no application and the Company is not entitled to a notice in a case of non-delivery. With all respect to the Patna High Court, I am unable to follow this reasoning which appears to me to be importing a distinction into the Railways Act, which is not sound. In the case of a Railway Company which carries hundreds of thousands of parcels, it appears to me that even in a case of non-delivery enquiry will be necessary to enable the Railway Company to find where the goods are. They do business in a large number of places, and sometime is necessarily required to trace missing goods which may be lying in any station on the system. In these circumstances, where an opposite view has been expressed by two High Courts, I prefer to follow the ruling of the Madras High Court, and I hold therefore that notice is necessary.
8. Turning to the second point, whether notice was, as a matter of fact, given, the plaintiff has produced a receipt for a registered letter addressed to the Manager or Agent, E.I.Ry Co. The E.I.Ry Co., deny receipt of the notice. The notice was addressed in the alternative by the plaintiff because he did not know whether it should be sent to the Manager or the Agent, In 8 N.L.R 34 it was held that a notice to the Traffic Manager is not sufficient even if it comes to the knowledge of the Agent. That however was based on the special circumstances of that case. I need not refer to cases which lay down that the provisions as to notice must be strictly observed, and if the plaintiff is desirous of serving an effective notice of claim, the notice must be directed to the Manager or the Agent, as the case may be. These cases will be found quoted in the judgment of this Court referred to above.
9. It has been argued on behalf of the applicant that it may be presumed that the notice was received. There is no reported case in which a notice in the alternative was sent, as in the present case. The notice being addressed to the a Manager might possibly have been delivered so the Traffic Manager but there is no evidence as to whether notices received by the Traffic Manager, supposing such an officer to exist, are ??? over to the Agent. In these circumstances I think the case must go bask for enquiry into the point as to who receives letters addressed to the Manager, E.I.Ry Co., and whether notices of this kind are handed over to the agent. Costs will be costs in the cause.
10. Application allowed.
11. Case remanded.