G.K.Mitter, J. - (1.) This is au appeal by the Union of India representing the Eastern Railway Administration from a decree for Rs. 11, 928.37 in favour of the respondent Alliance Assurance Company Limited in sespect of a claim for loss and/or non-delivery of certain goods, to wit certain tyres and tubes specified in the plaint and consigned from Bansabali on the Eastern Railway to Nagpur.
(2.) The consignment was effected by the Goodyear Tyre and Rubber Company of India Limited on April 7, 1953. It consisted of 467 packages of tyres and other rubber accessories. The goods were covered by an insurance policy of the Alliance Assurance Company Limited. sonic of these packages were never delivered at the destination station. The Goodyear Tyre and Rubber Company Limited claimed from the plaintiff as an insurer and the latter paid to the Goodyear Tyre and Rubber Company Limited a sum of Rs. 11,928-10-0 being the value ot the non-delivered goods. There is no dispute as to the loss or the shortage. The Union of India which was the first defendant in the suit raised various defences and a number of issues were struck but the only one to which the appeal is confined is issue No. 4, namely, whether there was any valid or sufficient notice under Section 77 of the Railways Act served on the proper authority. The adjudication of this issue depends on the proper construction to be put on certain correspondence coupled with the evidence adduced, The Insurance Company addressed a letter to the General Manager, Eastern Railway which was posted at Calcutta on June 2, 1953 and delivered to the addressee on the next day. The letter itself was dated May 29. 1953 and was headed. "Claim for Rs. 11,928-10-0 for shortage of rubber goods booked from Bansabati to Nagpur under Railway Receipt No. C 543404 (Invoice No. 2) dated 7-4-53 shortage certified under Nagpur, Station Master's Certificate." The text of the letter was as follows :-- "We would advise you ot having settled a claim for Rs. 11,928-10-0 with our Insured, Messrs Goodyear Tyre and Rubber Co. of India Ltd. Calcutta in respect of the above shortage. As the loss occurred whilst the goods were in your custody, we hold you responsible for the loss sustained and accordingly give you notice of claim under Sections 77 and 140 of the Indian Railways Act, 1890, for the sum of Rs. 11.928-10-0 as assignees of the consignees. A letter of Subrogation transferring the rights and interest in the undelivered goods to us has been executed by the consignees and we shall be glad if you will please settle our claim expeditionsly." The plaintiff disclosed at the hearing of the suit, the counterfoil of a cheque for Rs. 11,928-10-0 bearing dated May 30, 1953. The evidence of the plaintiff's witness Khitish Chandra Chakravarty was to the effect that the cheque was actually handed over to a representative of the Goodyear Tyre and Rubber Company of India Limited on May 30, 1953. Receipt for the payment was given on June 2 following and a document of assignment oi the claim of the Goodyear Tyre and Rubber Company Limited was executed on June 11, 1953. The plaintiff addressed a letter to the Chief Commercial Superintendent of the Eastern Railway on June 6, 1953. This letter too bore the same heading as the letter to the General Manager. The letter was to the effect that the writers had settled the claim for Rs. 11,928-10-0 with Goodyear Tyre and Rubber Company Limited in respect of the loss mentioned and that as the same had occurred while the goods were in the custody of the Railway Administration the plaintiff would hold the Administration resposible for the loss. By the letter the plaintiff gave notice of claim under Sections 77 and 140 of the Indian Railways Act. The enclosure to the letter mentioned a copy of a letter of subrogation as also a copy of a letter addressed to the General Manager. The letter of subrogation the original of which was produced before us showed that it first bore the date June 2, 1953 but was actually executed on the 11th June. The opening paragraph of the letter reads : "In consideration of your paying to us a sum of Rs. 11,928/10/- in respect of the undermentioned goods insured with you under policy No. 4859 (open), we hereby assign and transfer to you all our rights, title and interest in respect of the said goods and all rights or claims against any person or persons in respect thereof." On June 29, 1.933 the Chief Commercial Manager wrote back to the plaintiff acknowledging receipt of the letter and stating that the matter was receiving his attention. On July 30, 1953 the plaintiff wrote once more to the Chief Commercial Superintendent in respect of the shortage and the claim, This was replied to on August 18, 1953 to the effect that the matter was under investigation by the Watch and Ward and the Government Railway Police and that a definite decision regarding disposal of the claim would be given on receipt of the reply of the said authorities. Ultimately not getting any satisfaction the plaintiff filed this suit on June 4, 1954 after serving a notice under Section 80 of the Code of Civil Procedure against the Union of India owning and conducting the administration of the Eastern Railway and the Goodyear Tyre and Rubber Co of India Ltd. as a pro forma defendant. The claim made was for failure to deliver tyres and tyre parts as already mentioned. The first defendant put in a written statement raising several defences. We need not stop to consider these excepting the point that no valid notice of claim under Section 77 of the Railways Act was given as no other defence was pressed before us.
(3.) Two witnesses were examined on behalf of the plaintiff. The first witness J.N. Moorty was incharge of the Export and Import and Claims of the Goodyear Tyre and Rubber Co. of India Ltd. He proved the insurance police effected by the second defendant and said that the said defendant had received a cheque in settlement of its claim for Rs. 11,928-10-0. The second witness K.C. Chakraborty who was in charge of the Marine Department of the plaintiff said that the cheque was handed over to a representative of the Goodyear Tyre and Rubber Co. of India Limited on May 30, 1953 and a receipt therefor was obtained on June 2. 1953. The document of subrogotion and assignment was executed on June 11, 1953.;