1. This is a case stated for the opinion of the High Court by Mr. Billimoria, Third Judge, under Section 69 of the Presidancy Small Cause Courts Act and Order XLVI, Rule 1, o! the Code of Civil Procedure.
2. The facts are set out in the case, and the second question propounded is whether under the facts and circumstances as found, notice under Section 77 of the Indian Railways Act was necessary to be given and whether the plaintiff could maintain the action, not having given such notice, If that is answered, as the Judge thinks it should be answered, in the affirmative, then there is no neaessity to deal with the first question.
3. The goods in question were consigned to the South Indian Railway to be carried to Wadi Bunder in Bombay. The goods were to be sent via Erkulam, Jallarpet and Raichur. By some unfortunate mistake the goods went from Jallarpet via Madras all along the East Coast up to Waltair, which is the terminal station of the M. & S.M. Railway, and at Waltair they were delivered to the Bengal Nagpur Railway, which carried them on its line up to Ramkishtopore.
4. Eventually the goods reached Bombay in a damaged condition. The suit was filed to recover damages for the deterioration of the goods. It is contended by the plaintiff that there was no deterioration of goods within the meaning of Section 77 of the Indian Railways Act, and therefore, notice was not necessary. The only possible basis for that argument would be a finding that the Railway Company had been guilty of some tortious act. But the evidence only points in this case to a mistake on the part of the Railway Company's servants, whereby a wrong label was attached to the wagon with the result that the wagon went by the wrong route, That may be a breach of the contract. It certainly cannot be described as a tortious or wrongful act. It seems to me obvious that this claim of the plaintiff comes within Section 77, which deals with claims for deterioration of the plaintiff's goods delivered to the Company to be carried by them. As a matter of fact notice was given to the G.I.P. Railway Company within, six months. But unfortunately the plaintiff did not realise that there were three Companies concerned, and, therefore, did not serve notices on the other two companies; and clearly as the G.I.P. Railway Company were not liable for the acts of the M. & S.M. Railway Company, it was no use filing a suit against them. It was necessary to give notices to the other Companies and as the notices were not given within six months, plaintiff cannot recover.
5. It will, therefore, not be necessary to express an opinion on the first question, whether under the facts as found in the judgment, the Railway Companies can claim exoneration from liability by virtue of the risk note, Exhibit B, signed by the consignor.
6. Costs of the reference will be costs in the case. The Small Cause Court to decide who is to pay the costs. When it is decided, then the costs are to be taxed on the scale as on the Original Side of this High Court.