JUDGMENT

In this case the plaintiff had a claim against the South Indian Railway Company for damages for non-delivery of goods consigned by him for carriage, and the finding is that the notice which he gave was the document. Ex. J which was addressed to the District Traffic Superintendent, Cannanore. The Railway Company rely upon Sect. 77 of the Railways Act. Sects. 77 and 140 apparently say that no notice of the kind is good unless it is directed to the Agent. SO far as I know there is no evidence in the case to show positively that the notice did reach the Agent. Nor is there any evidence of a course of business by which it would do so automatically. In fact the practice appears to be that if a claim is sent to the Agent it is handed over to the General Traffic Manager, and he sends it on to the District Traffic Superintendent to be dealt with by him. I should have been prepared to hold in this case, if the matter was free from authority, that the notice sent to the District Traffic Superintendent was a perfectly good notice to the company as he is the person in charge of the matter and therefore the proper person to deal with claims of this kind. However, in view of the rulings in Periannan Chetty v. South Indian Railway Company and Nadiar Chand Shaha v. Wood(2) as to the interpretation the Court has put upon Sect. 140 of the Railways Act, I think that this question had better be settled by an authoritative ruling of a Bench.

The defence, of course, is wholly without merit. But if it is good in law it is entitled to be considered. In the interests of the public who send goods by rail they should know how the railway company is going to deal with such claims. Therefore I refer it.

[This petition came on for hearing in pursuance of the above order on the 16th and 17th days of November 1920 and on 18th day of February 1921 before their Lordships Sadasiva Aiyar and Coutts Trotter, JJ.]

Mr. W. Kothandarama Aiyar for Mr. N.A, Krishna Aiyar for the Petitioner.

Mr. T.L Venhatarama Aiyar for Mr. V. Viswanatha Sastri for the Respondent.

ORDER OF REFERENCE TO A FULL BENCH.

Sadasiva Aiyar, J. — The plaintiff (petitioner before us) sent his notice of claim for loss (of consigned goods) caused by the negligence of the Railway Servants to the District Traffic Superintendent of the Railway, Cannanore, at the end of March 1918, the goods having been delivered for carriage in December 1917 and the cause of action also having arisen in December 1917. The suit was brought in January 1919. Sect. 77 of the Indian Railways Act says that a claimant against a railway for compensation for loss should give notice of his claim to the Railway Administration “within six months from the date of the delivery of the goods for carriage by railway”. Sect. 140 states that “any notice……may be served……………(a) by delivering the notice……………to the Agent “in India (in the case of a railway administered by a Railway Company, which is the case here);” (b) by leaving it at his office; or (c) by forwarding it by post in a prepaid letter addressed to the Agent at his office and registered under part III of the Indian Post Office Act, 1866”.

The South Indian Railway Company has an Agent in India whose office is in Trichinopoly. This Agent has, in practice, constituted the District Traffic Superintendent of Cannanore to be his deputy to deal with claims made against the Company in respect of the loss of goods. The question is whether the notice given to the District Traffic Superintendent (within the prescribed period of six months) by the plaintiff is sufficient notice to the Railway administration under Sect. 77 of the Railways Act. In Nadiar Chand Shaha v. Wood Mitra and Casperz, JJ. dissent from the ruling of Badrudin Tyabji, J. in East Indian Railway Co. v. Jethmull and follow that of the Court of Appeal in that case (Jenkins, C. J. and Crowe, J.). The Bombay Appellate Court held that the fact that the Agent of the Railway Company knew of the claim of the plaintiff was not sufficient to enable the plaintiff to sustain his action and that Sect. 140 of the Act was not a mere enabling section and that a notice in strict accordance with its provisions must be served before an action could be brought. They also dissented from the view of the Madras High Court in Periannan Chetti v. South Indian Railway Co.(3), which held that Sect. 140 did not preclude the claimant from showing that the notice required by Sect. 77 did in fact reach the Agent within the time limited, though not given in one of the modes prescribed in Sect. 140.

The finding in this case is that there is no satisfactory proof that the Agent was aware within the prescribed period of six months of the notice addressed to the District Traffic Superintendent of Cannanore).

In Woods v. Mehar Ali Bipari(4) Holmwood and Sharfuddin JJ. (without referring to Periannan Chetty v. South Indian Railway Company, or to any other case) held that it the Agent had full knowledge of the notice of the claim or even if he had not full knowledge but if the Traffic Manager usually settles such claims in exercise of the powers delegated to him by the Agent, notice of such claim to the Traffic Manager was sufficient. The learned Judges, however, if I may say so with respect, seem to have entertained some doubts about the soundness of their view on the point of law and so they add at the end: “In any case in the exercise of our powers under Sect. 25 of the Small Causes Courts Act we certainly are not disposed to pass any order in respect to this case which would have the effect of defeating the plaintiff's apparently just claim.”

In Martin & Co. v. Fakir Chand Sahu and Janaki Das v. The Bengal Nagpore Railway Co., Nadiar Chand Shaha v. Wood, was followed, and it was held that “may” in Sect. 140 means “must” thus differing from 22 Madras. In Madras and Southern Mahratta Railway Company, Ltd. v. Bhimappa, it was held that where a Railway Company (Madras and Southern Mahratta Railway Company, Limited) had made a rule that all applications for loss should be made to the nearest Station Master and to the Traffic Manager at Dharwar and where that rule had been complied with by a claimant “it is not open to the company to plead that the notice is insufficient”. I take it that the learned Judges (Benson and Sankaran Nair, JJ.) meant that the Railway Company agreed with the public that a notice sent according to their rules to the Traffic Manager would be treated by them as the notice to the Agent prescribed by the statute and that they are therefore estopped by their conduct from pleading that the notice did not reach the Agent. The learned Judges also follow Periannan Chetti v. South Indian Railway Co.(5) in the view that the notice given need not necessarily be in one of the three modes mentioned in Sect. 140. In Seshachellam Chetty v. Traffic Manager, His Highness the Nizam's Guaranteed State Railway Co., Ltd.(6) Sundara Iyer, J., said “no doubt, it may be shown by evidence that some other officer of the company had authority to receive the notice either by showing that he was the person who according to the practice of the company dealt with the claims of the particular character in question or that there were rules framed by the Railway Company authorizing him to receive the notice or in some other legal manner.” But these observations also were obiter.

In Ram Gopal v. The Agent, Bombay Baroda and Central India Railway Co, the Judicial Commissioner Colvin, J., adopts the opinion of Holmwood and Sharfuddin, JJ., in the case in Woods v. Mehar Ali Bepari, His observations are as follows:—1. “I must say that the decision given by the Calcutta High Court in Woods v. Mehar Ali Bepari, appears eminently reasonable. It is really the business of the Traffic Manager to settle such claims and in the circumstances, the notice to that official is a claim preferred to the “Railway-administration” under Sect. 77 of the Railways Act. The Agent must be presumed to know what is going on in his subordinate offices, and the notice of claim to the Traffic Manager must be regarded as equivalent to notice to the Agent. It is not disputed that notice of claim was sent to the Traffic Manager within six months, and, so far as this matter goes, the case is not, in my opinion, liable to be thrown out”. This is the only case which supports all the contentions of the appellant in the present case, but it is to be remarked that it is the opinion of a single Judge of a Judicial Commissioner's Court, and the observations are (as appears from the later portion of the judgment) obiter. In Agent, East Indian Railway Co. v. Ajodhya Prasad, the decision in Woods v. Mehar Ali Bepari is considered and dissented from with the remarks “that the decision was not in accord with the whole trend of modern authority in the Calcutta High Court and was inconsistent with the express and mandatory provisions of the Railways Act” and had been treated in Radha Kishen Chooni Lal v. The East Indian Railway Co. as of very doubtful authority. Some English cases including cases decided by the Privy Council and the House of Lords interpreting provisions alleged to be similar to the provisions of the Railways Act under consideration were quoted before us; but I do not think that they afford much guidance (See Union Steamship Co., of New Zealand v. Melbourne Harbour Trust Commissioners and 8 and 9 Vic, Ch. 20 Sect. 138 interpreted, in Garton v. The Great Western Railway Co. I believe I have referred to and discussed the authorities in sufficient details. I confess that I was at first inclined to follow what seems to me to be the preponderance of opinion among the Indian authorities and to hold that in this case the plaintiff had not complied with the provisions of Sect. 77 as regards notice to the Railway Administration by proving, at least, that the Agent had actual notice within six months. As my learned brother however thinks that in the interest of the mercantile public, it is desirable that clear and authoritative pronouncements by a Full Bench are desirable on the questions involved, I agree that this case in its entirety might be referred to a Full Bench for decision and I hope that there might be pronouncements made on the following three points. (It may be that all the three points need not be pronounced upon for the decision, but they are so closely interconnected with one another that I do not think that a pronouncement made on any of them can be considered irrelevant).

(1) Where there is a well-known practice or where there is a rule made by the Company by which claims for loss are made to the District Traffic Superintendent and are dealt with by him either in the first instance (in some cases) or finally (in others), is notice to the said official within six months sufficient compliance with the provisions of Sect. 77 of the Railways Act, whether on the ground of estoppel or otherwise?

(2) Should the word ‘may’, in Sect. 140 of the Railways Act be construed as meaning ‘must’?

(3) If the Agent has somehow knowledge of the claim made against the Railway Company within six months, is the plaintiff entitled to maintain the suit?

Coutts Trotter, J.—The plaintiff's claim is against the South Indian Railway Co., for damages for non-delivery of goods consigned by him for carriage by the Company. The Company rely upon Sects. 77 and 140 of the Indian Railways Act, as the only notice of loss was addressed not to the Agent but to the District Traffic Superintendent, Cannanore. There is no evidence to show that the notice in fact reached the Agent, nor is there evidence of any course of business by which it would automatically do so in such a case. The evidence on the contrary shows that, it a notice were sent to the Agent, he would forward it to the General Traffic Manager, who in his turn wulod pass it on to the District Traffic Superintendent. The outcome of it is that if the plaintiff had adopted the course which the Company contend to be the right one, the notice would have ultimately reached for effective consideration the very person to whom he addressed it in the first instance.

There are direct authorities against the plaintiff's contention. For example, Agent, East Indian Railway Co. v. Ajodhya Prasad, and Nadiar Chand Shaha v. Wood. They are doubtless based on the leading case in England, Gorton v. The Great Western Railway Co., a decision on 8 and 9 Vict, Ch. 20, Sect. 138. On the other hand, there are decisions of this Court and others which appear to show that service on the Agent is not a condition precedent, and that effective service can be made on the Company by other means; e. g., Woods v. Mehar Ali Bepari, Ram Gopal v. The Agent, Bombay Baroda and Central India Railway Co., and Madras and Southern Maharatta Railway Co., Ltd. v. Bhimappa. Periannan Chetti v. South Indian Railway Co.,(7) appears to support the position that it is not necessary that the notice should be addressed to the Agent, but also seems to point to the view that there must be evidence that ultimately it reached his hands———evidence which is not forthcoming in this case.

If the petition had been made by the Railway Company it would be dismissed for the reason given by Phillips, J. in The Agent and Manager, South Indian Railway Co., v. Venku Pattar(8). But here the petitioner is the consignor, and as the matter is one of general importance to persons who consign goods for carriage to Railway Companies in this country and the authorities are conflicting, I think it best to refer the whole case for determination to a Full Bench. It does not appear to me to be necessary to formulate specific questions.

[This case came on for hearing before a Full Bench constituted as above]

Mr. W. Kothandarama Aiyar for Mr. N. A. Krishna Aiyar for the Petitioner.

Mr. T. L. Venkatarama Aiyar for Mr. V. Viswanatha Sastri for the Respondent.

JUDGMENT

The Officiating Chief Justice. — This is a Civil Revision Petition under Sect. 25 of Act IX of 1887 in which we are asked to revise the order of the Subordinate Judge of Cochin dismissing S. C. No. 1 of 1919 on his file. The whole case has been referred, first by a Single Judge to a Divisional Bench, and then by that Bench to Full Bench.

The suit was one for damages against the South Indian Railway Company for short delivery of goods: and it was dismissed for failure to notify plaintiff's claim within 6 months as required by Sect. 77 of the Railways Act read with Sect. 140. The former section says, “A person shall not be entitled to a refund of an over-charge 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 6 months from the date of the delivery of the animals or goods for carriage by railway.” “Railway Administration” is defined in Sect. 3 (6) of the Act as meaning the Railway Company itself: and Cl. 5 of the same section says that “Railway Company includes any persons, whether incorporated or not, who are owners or lessees of a Railway or parties to an agreement for working a Railway”. Now the South Indian Railway Company is registered in England, and without some further provision the service of notices on such a body would be a matter of considerable difficulty and doubt. Such a provision is Sect. 140 which is obviously intended for the benefit of the public to facilitate the service of notices. It runs thus, “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 or a Native State, 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 prepaid letter addressed to the Manager or Agent at his office and registered under part III of the Indian Post Office Act 1866.”

The effect of the sections referred to above is to bar plaintiff's claim in this suit unless he can show that he has complied with the requirements of the law as regards service of notice of claim. Now, in the present case it is not suggested that any written claim was preferred to the Railway Administration itself as defined above: or that any notice was addressed, much less served, as required by Sect. 140 to the Agent of the South Indian Railway Company within the time allowed. The only notice which could be said to be served within 6 months was the original of Exhibit J, which was sent to the District Traffic Superintendent, Cannanore. The Subordinate Judge finds as a fact that it is not proved that the Agent was aware of this notice within the prescribed period; and as one of the learned referring Judges puts it “there is no evidence to show that the notice in fact reached the Agent, nor is there evidence of any course of business by which it would automatically do so.” I have carefully examined the very meagre record in the case to see if there is any evidence from, which it could be deduced that the power of the Agent to receive notices under Sect. 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 the Agent, and thus estopped themselves from raising this technical defence. I can find none. There is merely the evidence of a goods clerk (plaintiff's witness I) to the effect that parties usually send their claims to the District Traffic Superintendent, who is empowered to settle them up to Rs. 100. (The present claim is for Rs. 171). The rules of the Company are not in evidence: and no notification is referred to.

I can therefore find no ground for interference and would dismiss the Civil Revision Petition with costs.

Kumaraswami Sastri, J.—This revision petition arises out of a suit filed by the petitioner against the South Indian Railway Company to recover Rs. 171-4-0, the price of cloths consigned through the Railway Company and not delivered. Notice of the claim was addressed and sent to the District Traffic Superintendent, Cannanore. One of the defences raised was that the claim was unsustainable as notice was not sent to the Agent as required by Sect. 140 of the Railways Act. The Subordinate Judge dismissed the suit on the ground of want of notice to the Agent within 6 months of the logs. He held that it had not been proved that the notice to the District Traffic Superintendent was by the rules of the Company equivalent to notice to the Agent. The petition originally came on before Coutts Trotter, J. who was of opinion that the defence was wholly without merit but that owing to the important questions of law raised, it should be decided by a Bench. The petition came on before the learned Judge and Sadasiva Ayyar, J., who referred the case to a Full Bench. After referring to the conflicting authorities, Sadasiva Ayyar, J. formulated the following questions for consideration.

“(1) Where there is a well known practice or where there is a rule made by the Company by which claims for loss are made to the district Traffic Superintendent and are dealt with by Mm either in the first instance (in some cases) or finally (in others), is notice to the said official within six months sufficient compliance with the provisions of Sect. 77 of the Railways Act, whether on the ground of estoppel or otherwise?

(2) Should the word “may” in Sect. 140 of the Railways Act be construed as meaning “must”?

(3) If the agent has somehow knowledge of the claim made against the Railway Company within 6 months, is the plaintiff entitled to maintain the suit?”

So far as the provisions of the Railways Act are concerned they require notice of claim to be given and enable the party to give notice either to the Administration, which means the Railway Company itself at its Registered Office, or to the Agent or Manager in India. When notice is sent to the Registered Office or to the Agent in India, there is no difficulty. It would be sufficient compliance if, instead of sending the notice to the Agent, it is addressed to the Railway Company at its Registered Office.

On the question as to whether the provisions of Sect. 140 Would be Sufficiently complied with if the notice is sent to an Officer to whom the Agertt or the Railway Company ask the public to submit all claims for loss or damage or if the person to whom the notice has actually been sent, sends it on, or informs the Agent of its contents, within the prescribed period of six months, the authorities are conflicting. In The Secretary of State for India in Council v. Dip Chand Poddar notice given to the Traffic Superintendent was held to be sufficient but that it was open to the party to show that the notice served on the Traffic Superintendent reached the Agent or Manager within 6 months from the date of the non-delivery of the goods. In V. Woods v. Meher Ali Bepari, Holmwood and Sharfuddin, JJ, were of opinion that though notice of claim under Sect. 77 of the Railways Act must be served on the Agent as provided by Sect. 140 it does not require actual physical service but that it would be sufficient “if the findings of fact are such that it must be inferrqd that the Agent had full knowledge and notice of the claim.” This case was followed in Ram Gopal v. The Agent, B. B. & C. I. Railway. In Janaki Das v. The Bengal Nagpore Railway Company, the notice was given to the Goods Superintendent to whom, under R. 57 of the Goods Tariff published by the Railway Company, written claims had to be made. This was held to be a sufficient compliance with the provisions of Sect. 140 by the District judge but Jenkins, C. J., reversing, the decision observed “the method of service permitted by this section has not been followed; nor has it been shown that the claim has been otherwise preferred to the Railway Administration so as to satisfy the requirements of Sect. 77.” The decisions in The Secretary of Stat for India in Council v. Dip Chand Paddar and V. Woods v. Meher Ali Bepari were not referred to. In the East Indian Railway Company v. Ram Autar, the notice was served on the Claims—Superintendent but there was to evidence the Claims—Superintendent was authorised by the Agent to receive such notices on his behalf. Chatterjee and Beachcroft, after referring to Janaki Dass v. The Bengal Nagpore Railway Company, The East Indian Railway Company v. Babu Madho Lal and Radhakishen Chooni Lal v. East Indian Railway Company and distinguishing Woods v. Meher Ali Bepari, on the ground that there was no finding that claims were usually referred by the Agent to the Claims—Superintendent or that the notice actually reached the Agent, observed “The law requires that the notice should be on the Agent and we think the notice must be on the Agent and whether a particular officer is authorised by the Agent to receive such notices on his behalf is a question of fact that must be decided on the evidence.” In Kalachand Shaha v. The Secretary of State for India, it was held that a notice to the Traffic Manager was insufficient. It was found as a fact by the lower Court that notice of the claim was not brought before the Agent within 6 months. The learned Judges were inclined to the view that there could be no estoppel against the express provisions of Sects. 77 and 140 of the Railways Act. In East Indian Railway Company v. Ramgati Ram, Stephen and Mullick, JJ., were of opinion that a notice served on the District Traffic Superintendent was not sufficient compliance with Sects. 77 and 140 of the Act and a similar view was taken in The Agent, East Indian Railway Company v. Ajvdhya Prasad. In Nadiar Chand Shaha v. Wood, it was held that service of notice on the Traffic Manager was not a sufficient compliance with the provisions of the Act. Mitra and Caspersz, JJ., were of opinion that the word “may” in Sect. 140 “means that, if a plaintiff is desirous of serving an effective notice of claim, the notice must be directed to the Manager or Agent, as the case may be”, and dissented from Periannan Chetti v. The South Indian Railway Company. They refused to send the case down for a finding whether the Traffic Manager was authorised by the Agent to receive the notice as the question did not arise on the pleadings and no evidence was adduced on the point.

In The Great Indian Peninsula Railway Company v. Chandra Bai, Stanley C. J., and Burkitt, J., held that notice of a claim prescribed by Sect. 77 may be given either to the Railway Administration as defined in Sect. 3, Sub-Cl. 6, or in any of the ways mentioned in Sect. 140, and that in view of the express provisions of the sections, service on the General Traffic Manager was insufficient. There was no question in this case as to the Traffic Manager having been authorised by the Agent to receive such notices or of the notice having as matter of fact been communicated to him in the usual course of official correspondence. This case was followed in G. I. P. Railway Company v. Ganpat Rai.

In The East Indian Railway Company v. Jethmull, the notice was served on the Traffic Manager. Tyabji, J., was of opinion that Sect. 77 was only intended to protect the company against state claims and to compel persons to make their claims within a reasonable time so as to enable the Railway Company to make enquiries and, if satisfied, to pay the claims, that Sect. 140 was only an enabling section and not exclusive and compulsory since notice on the Administration would be sufficient and that as the General Traffic Manager was an important officer of his company, and the principal officer charged with the duty of investigating claims made against the company, service on him was sufficient. It should be observed that the claim was against the B. B. and C. I. Railway Company and the East Indian Railway Company and that notice was sent by the plaintiff to the Traffic Manager of the B. B and C. I. Railway Company and no notice was sent directly to the E. I. Railway Company. The notice was however communicated by the former to the latter company and this was held by the learned Judge to be sufficient. On appeal by the East Indian Railway Company, it was held by Jenkins, C. J., and Crowe, J., that the notice was insufficient to charge the East Indian Railway Company as it was not shown that any claim was preferred direct to the East Indian Railway Company and the letters written by the B. B. and C. I. Railway Company did not amount to a notice on plaintiff's behalf. The learned Judges do not deal with the question whether the notice would be sufficient against the B. B. and C. I. Railway Company to whose Traffic Manager the notice was sent, nor is there any disapproval of the view taken by Tyabji, J., as to the sufficiency of the notice so far as the B. B. and C. I. Railway Company is concerned. This case was followed in B. B. and C. I. Railway Company v. Saute Lal. In G. I. P. Railway Company v. Dewasi it was held by Russell and Batty JJ., that delivery of the notice under Sect. 140 must be in exact compliance of the terms of the section and must be delivered to the Agent at his office.

So far as the Madras High Court is concerned the authorities are uniform. In Periannan Chetty v. The South Indian Railway Company it was held that notice to the Traffic Manager is good notice if it in fact reached the Agent within six months. Subramania Ayyar and Benson, JJ., were of opinion that Sect. 140 simply provided for one mode of service, the other being service on the Railway Company at the Head Office in England and observe, “We do not think that Sect. 140 precludes a claimant from showing that the notice required by Sect. 77 did, in fact, reach the Agent, within the limited time, though not in one of the modes prescribed by Sect. 140. The case of the Secretary of State for India in Council v. Dip Chand Poddar, to which the learned Counsel for the Company has drawn our attention in connection with another point, supports the view that we have taken as to the construction to be placed on Sect. 140.” In the Madras and Southern Mahratta Railway Company Co., Ltd. v. Bhimappa, the notice of claim was served on the Traffic Manager under a rule made by the Railway Company that all applications for loss should be made to the nearest Station Master and the Traffic Manager, Dharwar. The learned Judges, (Benson, O. C. J. and Sankaran Nair, J.) followed Periannan Chetty v. The South Indian Railway Company, and observed that if a mode of service is prescribed by the Company, and is observed by the party claiming relief it is not open to the Railway Company to plead that the notice is insufficient.

In Seshachallam Chetty v. The Traffic Manager, H. H. the N. G. S. Railway Co. Ltd., it was held by Sundara Ayyar, J. that though the proper person on whom notice should be served is the Agent, it may be shown by evidence that some other officer of the company had authority to receive the notice either by showing that he was the person who according to the practice of the company dealt with the claims of the particular character in question or that there were rules framed by the Railway Company authorising him to receive the notice or in some other legal manner.

I do not think there is sufficient reason to dissent from the views taken by the Madras High Court in the decisions above referred to. So far as Sect. 140 is concerned it is only an enabling provision and gives the party the option of serving the notice on the Agent or Manager of the Railway Company instead of on the Railway Administration at its registered office. Sect. 140 refers to three modes by which service may be effected, namely (1) delivery of the notice to the Manager or Agent personally, (2) leaving it at his office and (3) sending it by registered post. The second and third methods are not peisonal service but a person is relieved from further liability if he leaves the notice at the Agent's office or sends it by registered post, even if the notice for some reason does not actually come into the Agent's hands.. The object of the section is to see that the company gets notice and there is no magic in the methods provided for by the section to see that it reaches him, if as a matter of fact the notice comes into his hands. Supposing the plaintiff adopts the method of sending the notice by post without registration and the Agent admits receipt of the notice which is otherwise valid, there is no reason for holding that non-registration is such a vital defect that it invalidates the notice. The Code of Civil Procedure provides for modes of service of summons and notices. I do not think it can be said that where a party without objection receives and admits receipt of the summons or notice, he can fail to appear and plead the mode by which he received the process as an excuse.

So far as notices of action are concerned the substantial point is whether they reached the person to whom the law requires notice to be given; and the method by which he received it is a matter which is of comparative unimportance and a deviation from the methods prescribed in the section will in my opinion be only an irregularity. In Union Steam Ship Co. of New Zealand v. Melbourne Harbour Trust Commissioners, Sir Rebort Collier delivering the judgment of their Lordships of the Privy Council, observed, “Some cases have been quoted for the purpose of showing that notices of action are not to be construed with extreme strictness, a rule to which their Lordsthips subscribe. Cases have been quoted in which notices of action have been upheld which would have been had upon special demurrer or perhaps upon general demurrer; but those cases have no bearing on the present, where the notice of action is not in form or substance a compliance with the Act.”

In cases where a subordinate official sends on the notice to the Agent or informs him of its contents within six months, I think there is a substantial compliance with the requirements of the Act, the essential consideration being the question whether the Agent had notice of the claim so as to enable him to take steps for the protection of the interests of the Company. I am of opinion that Woods v. Meher Ali Bepari,Periannan Chetty v. The South Indian Railway Company, Madras and Southern Maharatta Railway Company v. Bhimappa, and Seshachellam Chetti v. The Traffic Manager, The N. G. S. Railway Company, were rightly decided, and I would follow them in preference to the decisions that put a strict and literal interpretation on Cls., a b and c of Sect. 140.

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 Sects. 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, to save delay and official correspondence require 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 Sect. 77 being to give the company prompt notice of the claim so as to prevent state claims and to enable it to make prompt enquiry, there is no peculiar efficacy in its being addressed to the Agent, if the company thinks it fit to ask the person complaining to address its claims to a subordinate official ordinarily dealing with such claims. I am unable to find any reason for the contention that an Agent cannot depute a subordinate officer of the company to receive the notice and as pointed out in East Indian Railway Company v. Ram Autar, the question whether a particular officer is authorised by the Agent to receive such notices on his behalf is a question of fact to be determined in each case. Agency may be proved either by direct evidence of authority or by a course of conduct which in the opinion of the Court would justify the inference that the subordinate official was authorised by the Agent to receive notices on his behalf.

I would answer the first and third questions in the affirmative. As regards the second question, I think Sect. 140 is an enabling provision and that 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.

In the present case it is admitted that the notice was not sent to the Agent and there is no evidence that the Agent had notice within the prescribed period. The petition fails and is dismissed with costs.

Odgers, J.—I agree with, the judgment just pronounced by my Lord and have nothing to add.

S. S.Petition dismissed.