A MAHADEVA AIYAR Vs. SOUTH INDIAN RAILWAY COMPANY LIMITED, THROUGH ITS AGENT AND MANAGER AT TRICHINOPOLY

JUDGEMENT

(1.) This is a Civil Revision Petition under Section 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 a Full Bench.

(2.) 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 Section 77 of the Railways Act read with Section 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 Section 3(6) of the Act as meaning the Railway Company itself and clause 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 S- 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 adminstered 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 Rail-? way 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 ad-dressed to the Manager or Agent at his office and registered under part III of the Indian Post Office Act, 1866.

(3.) The effect of the sections referred to above is to bar plain-tiff'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 Section 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 Ex. 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 Section 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 1) 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.