KISHANLAL ROOPCHAND AND CO Vs. INDIAN DOMINION

JUDGEMENT

(1.) The petitioner is the plaintiff-firm who sued the B. B. and C. I. Railway as the first defendant, and the M. & S. M. Railway as the second defendant, to recover Rs. 1541-4-0, being the value of 62 pieces of cloth found missing from one bale of a consignment of fifty bales despatched to Madras from Ahmedabad on the B. B. and C. I. Railway on 27-11-1947. Notice of claim to compensation under Section 77, Railways Act, was given only to the M. & S. M. Railway within the six months period prescribed. No notice of claim was admittedly served on the B. B. & C. J. Railway. It was found that the loss did not take place, on the M. & S. M. Railway. The suit was dismissed for failure to serve a notice of claim under Section 77 of the Act on the B. B. & C. I. Railway by the learned Chief Judge of the Small Cause Court on this legal and technical ground. A New Trial application before a learned Bench was dismissed, holding that the dismissal of the suit was correct.

(2.) The law applicable is to be found in Sections 77, 80 and 140, Railways Act. Under Section 77 a person shall not be entitled to compensation unless a claim 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. Section 80 provides statutory machinery for compensation for injury in through booked traffic, i.e., where the goods are carried over two or more railway administrations. It lays down that a suit for compensation may be brought either against the railway administration to which the animals or goods were delivered by the consignor thereof or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred. Section 140 lays down the procedure by which a notice under Section 77 or under any other section of the Act may be served on a railway administration, either by delivery to the Manager or Agent, or by leaving it at his office or by sending it to the Manager or Agent by registered prepaid post:.

(3.) It is clear from Section 11 read with Section 80 that no railway administration can be made liable for compensation unless a claim for compensation has been made to it within six months under Section 77 of the Act. There have been divergent views in the High Courts as to how such a claim should be made and whether for instance a claim addressed to a subordinate official on the railway and not to the Agent or Manager was a sufficient compliance with Section 17. In '-- 'Mahadeva v. S. I. Rly. Co.', AIR 1922 Mad 362 (FB) (A), there was only one railway involved on which the goods were consigned and. delivered. In that case a letter was addressed not to the Agent but to the District Traffic Superintendent, Cannanore. A Full Bench of our High Court took the view that this was not a compliance with Sections 77 and 140 and dismissed the revision petition filed by the consignee against the dismissal of his suit for compensation with costs. Kumaraswami Sastri J, relaxed greatly the technical rigidity of the statute by emphasising that the word "may" in Section 140 was an enabling provision ana did not mean "must" and that it would be sufficient if the Agent or Manager had somehow knowledge of the claim within the specified time of six months, although the claim was addressed to some subordinate of his on the railway. In that case there was no evidence that the Agent had even notice of this kind within the prescribed period.