- (1.) THIS is a plaintiff's appeal whose suit for recovery of com pensation for non-delivery of a bale of cotton consigned at railway station New .Delhi on the Northern Railway on 1-2-1961 for carriage to railway station Ka-tarniaghat on the North Eastern Railway was decreed by the trial court but dis missed by the lower appellate court. The main ground on which the lower appellate court dismissed the plaintiff's suit w.as that he had not complied with the provisions of Section 77 of the Railways Act, 1890.
(2.) ON behalf of the plaintiff-ap pellant it is alleged that the plaintiff had duly complied with the requirements of Section 77 as would be evident from the documents on record. Firstly, it is point ed out that the plaintiff delivered a notice under Section 77 dated 7-4-1961 to some clerk in the office of the Chief Commer cial Superintendent, Gorakhpur on the same date and in token of his receipt he Sot the signature of that clerk and the seal of his office put on Ext. 9. On behalf of the railway administration the receipt of this notice was denie I and it was suggested that the signature and the seal had been spuriously obtained in collusion with some clerk in the Chief Commercial Superintendent's office. It was further argued that even if it is accepted that such a notice was delivered by the plain tiff to some clerk in the office of the Chief Commercial Superintendent it does not fulfil the requirements of Section 77 read with Section 140 and Section 3 (6) of the Railways Act. In my opinion this conten tion on behalf of the Railway adminis tration is correct. Section 77 requires that a notice under that section should be preferred within six months on the rail way administration. The expression 'rail way administration' 'has been defined in clause (6) of Section 3 meaning in the case of a railway administered by the Government, the manager of the railway ana ncludes the Government. Section 140 lays down that any notice required by the Act to be served on a railway admin istration may be served, in the case of a railway administered by the Government, on the manager by delivering the notice to the manager or by leaving it at his office or by forwarding it by post in a t>re-paid letter addressed to the manager. Obviously the Chief Commercial Super intendent is subordinate officer and he does not rank with the manager. Both Northern Railway and North Eastern Railway have got managers who are de signated as General Managers. These offi cers are of superior status than the Chief Commercial Superintendent. It was held by two Division Benches of this Court in Ram Sahai v. E. I. Railway (AIR 1922 All 280 (2)) and Cawnpore Cotton Mills v. G.I.P. Railway (AIR 1923 All 301) that for a valid compliance of Section 77 the notice should be served on the General Manager of the railway or railways con cerned and that the service of such a notice on a subordinate officer like the General Traffic Manager in the case of the erstwhile G.I.P. Railway or Divisional Traffic Manager in the case of erstwhile East Indian Railway, was not sufficient compliance of the law. The learned counsel for the ap pellant relied on another decision of this Court in Chaturbhui Ram Lal v. Secy, of State (AIR 1927 All 215) in which the service of a notice under Section 77 on the Chief Commercial Manager of the East Indian Railway was also held as sufficient compliance of Section 77 on the facts of that case. The learned Judges constituting the Bench without referring to the earlier Division Bench decisions cited above and without laying down any rule of law to the contrary as evident from their own observations, preferred to deal with the peculiar facts of that case. They observed that the question whether the notice was duly served upon the manager within the meaning of Section 140, as a general rule cannot be said to be a question of law at all, but is a ques tion of fact depending upon the evidence in each case. In that case the notice was not only received by the Chief Commer cial Manager but he actually started tak ing action thereon and did not choose to return the same to the notice-giver with a direction to address the same to the Agent of the East Indian Railway which at that time was managed by a company. On those facts it was observed that on re ceipt of a claim which should by Section. 140 be addressed to the Agent, the Chief Commercial Manager has a choice of two alternatives, he can decline to deal with it on the ground that it has not been addressed to the Agent and in the ordi nary course if he does so, his duty, is to return it to the sender with a request that it shall be addressed in accordance with the Statute to the proper person. If he does not do so but retains it and either hands it to the Agent, or deals with it himself he must be taken to do so as the subordinate and agent of the Agent and on the strength of the old maxim that "everything is presumed to be done cor rectly", it must be presumed that if he does so he does it with the implied con sent and therefore with the authority of the Agent. In the present case, even the receipt of this notice dated 7-4-1961 is being denied on behalf of the North East ern Railway. So this decision oannot be held as an authority to lay down a rule of law that a notice under Section 77 in stead of being served on the manager as required by Section 140 can be served on a subordinate officer like the Chief Com mercial Superintendent.
(3.) ANOTHER decision relied upon by the learned counsel for the appellant is Niranianlall v. Union of India (AIR 1969 SC 23). In that case the notice under Sec tion 77 was served on the Chief Commer cial Manager (Claims and Refunds) of the erstwhile Bengal and Assam Railway which did not have any officer of the designation of a manager though there was an officer known as General Manager having over all charge of many depart ments of that railway administration. It was found that the Chief Commercial Manager (Claims and Refunds) was equal in status to the manager. On those facts the Supreme Court held that the service of notice on the Chief Commercial Mana ger was sufficient service on the railway administration within the meaning of Sec tion 140 read with Section 3 (6). In the present case, both the Eastern and Nor thern Railways have got General Mana gers. The Chief Commercial Superinten dent of North Eastern Railway is evident ly an officer subordinate in rank to the Manager or General Manager. So that de cision of the Supreme Court has also no application to the facts of the present case.;