Amarendra Nath Sen, J. - (1.) This is an application under Section 25, Provincial Small Cause Courts Act. The plff. Surendra Nath Poddar is the applicant & the Governor General in Council & the Manager of the Bengal & Assam Railway are the deft. opp. parties.
(2.) The plff. sued for the recovery of compensation for non-delivery of one out of a number of bales of cloth which was booked by the plff. at Sealdah Railway station on 31-8-1944 to be delivered to him at Kasiani. The Railway failed to deliver one bale & the plff claimed compensation for that bale. There was a series of letters between the plff. & the Chief Traffic Manager & on the failure of the Rly. to satisfy the plff. the plff. on 16-2-1945 sent a notice claiming compensation to the Chief Transportation Manager, Bengal & Assam Rly., 3 Koilaghata Street. A notice was also sent in accordance with the provisions of Section 80, Civ. P. C.
(3.) The defence taken by the Rly. Administration inter alia was that the goods had been stolen by some unknown persons & that the Railway was not responsible as none of the Railway servants had misappropriated the goods. There were two other defences taken namely that the notice of the claim to the Chief Transportation Manager was not sufficient to satisfy the provisions of Ss. 77 & 140, Railways Act & that the notice under Section 80, Civ. P.O. was not proper. The learned Judge held that there was nothing wrong as regards the notice under Section 80, Civ. P. C. but he held that the service of notice on the Chief Transportation Manager of the Bengal & Assam Railway was not sufficient' compliance with the provisions of the Railways Act & that consequently the suit was not maintainable. The correctness of this view is challenged by the plff. in this Rule & it is the only point for determination. The decision of this question will depend on interpretation of Ss. 77 & 140, Railways Act 1890. Section 77 is in the following terms: "A person shall not be entitled to a refund of an overcharge 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 six months from the date of the delivery of the animals or goods for carriage by railway.";