1. The plaintiff Lala Badri Prasad delivered according to his statement five packages to the Railway Company at Dholpur for being booked to Agra to be carried in the brakevan. This was done on 19th April, 1920. On 22nd October, 1920, he drew the attention of the Railway authorities that these five packages had not been delivered to him. This notice was given to the Railway Company three days more than six months from the data of delivery of the luggage. On 19th November, 1920, only four packages were made over by the Company to the plaintiff and out of one of these it is alleged that certain articles of 6ho plaintiff were stolen during transit. On 28th February, 1921, he gave a notice to the Company of his claim for the value of the one package not delivered to him and of the articles missing from a package which was delivered to him in a damaged condition.
2. He instituted a suit for the recovery of Rs. 516 with the following details: Rs. 431 price of goods contained in the missing: package and Rs. 85, price of articles found short in one out of the four packages-returned to him by the Company. As regards the missing package the plea in para. 2 of the plaint was that it was withheld by the Railway Company. The reply of the Company was that only four packages were delivered by the plaintiff to the Company and no fifth package was received by the Company.
3. In the first Court one of the pleas was that notice within time had not been given by the plaintiff to the Company as required by Section 77 of the Railways Act No. 9 of 1890 and that, therefore, the plaintiff was not entitled to compensation for his loss. The first Court of the Munsiff of Agra held that the period of six months for a notice begins to run from the date on which delivery of packages is made by the Company to the consignor. The learned Munsiff therefore decreed the suit holding. that the missing package was worth Rs. 431 and the value of the pilfered goods Rs. 85. On appeal by the Railway Company the learned Subordinate Judge as an appellate. Court held that notice was not given within time and further that notice was necessary under the circumstances of the present ease.
4. In this second appeal two points were argued by the learned Counsel for the plaintiff (1) that as regards the package which was not delivered and withheld by the Company no notice was necessary and (2) that time for the giving of a notice by a consignor to the Railway Company begins to run from the date of the delivery of goods by the company to the consignor as bald by the first Court.
5. In my opinion the first argument is correct but not the second. Under Section 77 a notice is essential when a consignor desires compensation 'for the loss, destruction or deterioration of animals or goods delivered to be carried' by the Company. The question is whether the claim in the present suit is based on loss, destruction or deterioration of the package which was not delivered. In the plaint it was specifically alleged by the plaintiff that the package was withheld by the Company. The Company itself did not plead any loss or destruction of this package but alleged that no such package was delivered to it. This allegation of the Company has been found to be false by both the Subordinate Courts. The Company has not explained what became of this missing package. A learned Judge of this Court Mr. Justice Lindsay approved of a Bench ruling in Changa Mal v. Bengal and North-Western Ry. Co. (1897) 6 P.R. 1897 where it was held that the word loss in Section 77 of the Railways Act means loss by the railway and not simply loss to the owner: Secretary of State v. Jiwan A.I.R. 1923 All. On behalf of the respondent another Punjab ruling, Hills Sawyers & Co., Ltd. v. Secretary of State A.I.R. 1921 Lah. 1 was quoted. In this Court that ruling has been dissented from in East Indian Raihuay Company v. Kishan Lal A.I.R. 1924 All. 7. When the burden of notice is laid on the consignor the words of the section must be strictly construed. Unless the Railway Company alleges and proves that the package has been lost no notice would be necessary only on the ground that there had been loss to the consignor whatever may have happened to the package while in the custody of the Railway Company. The facts of the Madras case quoted on behalf of the respondent were different. In the Madras and Southern Mahratta Railway v. Haridoss Banmalidoss (1918) 41 Mad. 871 it was known that the Railway Company delivered the package to a person who was not the consignee but claimed to be entitled to it. In such a case it may be said that there was loss to the Company. Where goods have been delivered inadvertently to the wrong person by the Railway Company the case would be different from the present where the Railway Company denies receipt of a package. It is obvious that this enactment of the giving of a notice is intended to enable a Railway Company to make enquiry promptly. Where however the Railway Company denies receipt of a parcel there can be no occasion for any inquiry as to what has happened to that parcel in transit. The present case is therefore distinguishable from the one reported in the Madras Law Raports. As no notice was necessary the plaintiff's suit must succeed for Rs. 431.
6. As regards compensation for pilfered goods the plaintiff's learned Counsel admitted that a notice was necessary. His contention was that the time of six months commenced from the date of delivery of the damaged parcel by the Company to the consignor. In my opinion the words of the section are clearly against such an interpretation. They are 'within six months from the date of the delivery of the animals or goods for carriage by Railway.' Where there is loss or destruction there will be no delivery by the Company to the consignor and the words would not be applicable. In their ordinary interpretation also the words enact that the data of the notice must be within six months-of the data of the consignment. It was asked how a consignor was to know of loss, destruction and deterioration until he received some intimation from the Company or there had been delivery of a damaged parcel by the Company to him. In my opinion the consignor should take action immediately the delivery is delayed; and such action must be within six months of the delivery of the goods to the Company. This short time is fixed in order to warn the responsible officials of the Company and enable them to make an inquiry when an inquiry would be possible and would be likely to be fruitful. The suit as regards price of pilfered goods is barred under the provisions of Section 77 of the Railways Act.
7. In the result, I set aside the decree of the lower Appellate Court and decree the plaintiff's suit for the amount of Rs. 431 with proportionate costs of all the Courts.