SRISTHIDHAR MANDAL Vs. GOVERNOR-GENERAL IN COUNCIL

JUDGEMENT

(1.) This rule has been obtained by the plaintiff. He instituted the suit to recover compensation for non-delivery of certain goods which were consigned to opposite party 2 at Bankura station. The petitioner gave a notice which purported to be one under Section 77, Railways Act, to the Chief Commercial Manager of opposite party 3. He is the officer who is responsible for investigating claims and he did in fact investigate and deal with this claim. The learned Judge found that the petitioner has a good case but dismissed the suit, because the notice was not properly served within the meaning of Section 140, Railways Act. The law is certainly remarkable if a good claim is to be dismissed, because a notice is given to the officer whose duty it is to investigate it. The learned Judge found and it is not now disputed that the consignment was properly made over from the system of opposite party 2 to the system of opposite party 3. The defence of opposite party 3 was that it was looted by a riotous mob at the Patna City station on 12 August. On these findings opposite party 2 was absolved from responsibility. When, however, the plaintiff's advocate discovered the view taken by the learned Judge on the question of notice, he asked that vicarious responsibility might be fixed on opposite party 2 under the provisions of Section 80. That will depend upon the fate of Mr. Dutt's argument with regard to the interpretation of the word lost in Section 77. It would obviously be unreasonable to make it mean one thing in Section 77 and something else in Section 80. The first contention made on behalf of the petitioner is that Section 77 has no application to claims to compensation for non-delivery. The decisions are conflicting. That is perhaps not surprising, because reasons can be put forward in support of either view. I am however satisfied that at any rate in this Court the weight of authority is to the effect that the section does apply to claims to compensation for non-delivery.

(2.) The next question is whether the notice which has been given is valid in view of the provisions of Section 140. I have already pointed out that notice was given to the right officer. It would be an extraordinary thing if that is held to be an invalid notice. The service of a notice under Section 77 is not a condition precedent to the institution of the suit. Section 140 was undoubtedly enacted to help claimants and not to assist the railway administration to make a dishonest defence. If the notice is served within its terms the Railway have no answer. It does not matter in the least whether any individual officer knew about it or not. It is however sufficient to comply with Section 77 if in fact notice is given to the railway administration. The notice under Section 80, Civil P.C., was duly served on the Government of India. As usual it was forwarded to the General Manager of opposite party 3. He did nothing whatever except to send it to the gentleman who received the notice under Section 77 from the petitioner direct. It is quite obvious that, if the notice under Section 77 had been sent to the General Manager, he would merely have forwarded it to the Chief Commercial Manager. In these circumstances, it would be preposterous to say that no notice has been given to the railway administration. Turning to the merits of the case Dr, Basak made a desperate attempt to show that on the findings of the learned Judge the suit was rightly dismissed. Briefly, the defence was that the consignment was looted by a riotous mob at the Patna City station on 12 August 1942. Not only did the learned Judge find that this was not proved but he thought that the whole incident on the 12 had been concocted by the defence. It is difficult to see what is left to entitle the defendants to resist the claim.

(3.) Dr. Basak's argument is based solely on the use of the word lost by the learned Subordinate Judge on page 6. If it is to be interpreted to mean lost in the sense that it was looted on some other occasion, the whole judgment becomes meaningless. It is quite obvious that when the learned Judge said lost , he meant not delivered . The finding of the learned Subordinate Judge that the whole incident was concocted obviously displays a most serious state of affairs. The only proper course to take would then be to prosecute the Deputy General Manager for perjury in swearing the affidavit attached to the written statement. The most favourable view to take of his conduct would then be that he was so grossly negligent as to be unfit to discharge the important duties of his office. Dr. Basak assures me that there was an incident on the 13 and that the date 12 in the written statement was a mere clerical mistake, which has in fact led to the loss of the suit. Mr. Dutt does not seriously contest this. So it is not necessary to pursue the matter any further. The rule must be made absolute, the decree of the lower Court is set aside and the suit will be decreed against opposite party 1 for Rs. 557-8-3 with costs in both Courts--hearing-fee, three gold mohurs.