E.T. Candy, C.S.I., Acting C.J.
1. In this case we have no doubt that on the merits the plaintiff was entitled to a decree.
2. In the first Court one of the defences was that the defendant's servant had no authority to divert the consignment and that therefore the defendant was not bound by the Act of the servant.
3. In the District Court this defence was disallowed by the District Judge, who held that the Station Master at Kamptee was guility of default in directing the delivery of the goods to the original consignee but the District Judge further held that the defendant Company was not liable for the Act of the Station Master which was not within the scope of his authority (quoting Section 238 of the Contract Act).
4. We are unable to agree with the applicability of this section. It seems to us that this is a simple cage of breach of contract; the defendant contracted to carry the goods and deliver them at Nargaon and failed to give such delivery to the plaintiff. The Station Master at Kamptee may have acted wrongly in disregarding the telegram which he had received, but that fact cannot divest the Company of its liability under the contract.
5. As there is no dispute about the rates, the plaintiff would be entitled to the sum claimed with all costs.
6. But in this second appeal the defendant Company have filed cross-objections, the third one being pressed by the learned Advocate-General. That objection runs: 'That the lower Courts should have dismissed this suit on the ground (inter alia) that the plaintiff did not prove that his claim for compensation had been preferred in writing by him or on his behalf to the Bail way administration as required by Section 77 of the Indian Railways Act, 1890.'
7. That section provides that a person shall not be entitled to compensation for the loss of goods delivered to be so, carried, unless his claim to the 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 goods for carriage by railway.
8. Here the breach of contract occurred in May or June 1900. The suit was tiled and summons was served on the defendant in August 1900. Neither in the written statement nor in the arguments before the Court of first instance, nor in the District Court on appeal, was any mention made of this plea. No affidavit has now been filed on behalf of the Agent of the Company to the effect that no notice was received according to the section. Under these circumstances, we are asked to assume that no such notice was given.
9. The learned Advocate-General's argument is based on the proposition that the plaintiff, not being entitled to compensation unless notice was given, was bound to allege in his plaint and prove that such a notice had been given; in short that proof of the notice was a condition precedent to the filing of the claim.
10. We are unable to agree with that view. If notice bad not been given it is difficult to suppose that the Agent or his officers or their legal advisers would not have made mention of the fact.
11. We do not think that it would be right at thisstage of the case to send it back in order that evidence might be taken. We have no reason to suppose that the notice was not given. The object of the section apparently is to prevent stale claims, and this most certainly was not a stale claim, for the Company were sued within two months of the breach of the contract.
12. We therefore reverse the decisions of the lower Courts and award the amount of the claim with costs in all Courts.