1. This is an order of reference in a case brought against two Railway Companies, in which it was alleged that some goods had been lost in transit and the defendant Railway Companies complain that proper notice was not given to them within the provisions of the Railways Act. The objection took two forms, one as to the failure of the claimants to prefer a claim within six months from the date of the delivery of the consignment, and the other that the notice, in the case of the East Indian Railway, was wrongly addressed. The Munsif has disposed of the first objection as regards time without reference to us on the question of law. The second question which he has referred to us is whether the notice was duly served upon the Manager within the meaning of Section 140. In our view, as a general rule, and in this particular case, it cannot be said to be a question of law at all, but is a question of fact, depending upon the evidence in each case, and we propose to deal with it in this case as a reference asking us for an expression of our opinion.
2. The evidence, so far as it goes, shows that the notice in question was sent off from some place in the Etah District (Barahdwari) by registered post some time on the 23rd of December. At what time on the 23rd of December does not appear. Nor is there any evidence as to when it would be delivered in the ordinary course of post in Calcutta if posted at the said place by registered post. It was addressed to the Chief Commercial Manager of the East India Railway at Howrah. The law for service of notice is contained in Section 140 of the Railways Act, and it gives the person desiring to serve a choice of three methods; either by a personal delivery to the Manager or Agent; or by leaving at the office of the Manager or Agent; or by forwarding it by post in a prepaid letter addressed to the Manager or Agent. The plaintiff selected the third alternative. As a matter of fact, he did not address it either to the Manager or Agent, as required by the Statute. To comply strictly with the section he ought to have addressed it to the Agent, as there is now no Manager strictly so-called, and the person contemplated by the section is known as the 'Agent.' But, in fact, although he did his best to comply with the section by addressing it to the Chief Commercial Manager it did not really matter, because the Chief Commercial Manager appears to have accepted it which, of course, he would be almost certain to do until he opened it and found its contents, and to have dealt with it after he had discovered its contents in the ordinary course of business.
3. What exactly happened in the ordinary course of business inside the Railway Office does not appear, and does not really matter. But the effect of the conduct of the Chief Commercial Manager amounts, in our opinion, to a waiver of the statutory requirement that it should be addressed to the Agent. The Chief Commercial Manager, is the head of a very important department of Railway Administration, namely, the Claims Department, and the moment he reads the letter or notice, which is contained in the envelope addressed to him he must see that it is a claim which should by Section 140 be addressed to the Agent. He has a choice of two alternatives: he can decline to deal with it on the ground that it has not been addressed to the Agent; and in the ordinary course, if he does so, his duty is to return it to the sender with a request that it shall be addressed in accordance with the statute to the proper person. If he does not do so, but retains it, and either hands it to the Agent or deals with it himself, he must be taken to do so as the subordinate and agent of the Agent, and on the strength of the old maxim that 'everything is presumed to be done correctly, it must be presumed that, if he does so he does it with the implied consent and, therefore, with the authority of the Agent; and, therefore, where conduct of that kind is established, the ordinary inference may be drawn, and should be drawn, that by the conduct of the Chief Commercial Manager, acting under the authority of the Agent, the Railway Administration have, in fact, waived compliance with the statutory requirement with regard to the person to whom the prepaid letter should be addressed. The Railway Administration have, in fact, received it, have, in fact, acted upon it, without troubling themselves as to the person to whom the envelope was addressed.
4. But inasmuch as we are dealing with this question as a question of fact, and we have been asked by the Court to express our opinion upon it, we must express our opinion upon the other facts which result from this finding, leaving the Court to decide what course it ought to take under the circumstances. In this case the document was not received by the Chief Commercial Manager until the 30th December. If we were to draw on our imagination, we could give a very natural and probable explanation of that fact. But two things follow from that fact: that there could be no waiver, in fact, by the Railway Administration before the 30th of December, that is to say, after the expiration of the six months within which a claim has to be preferred. Further, if the Chief Commercial Manager had not acted in the ordinary course of business and waived this stipulation, but had done, what we have pointed out it was open to him to do, namely return it to the sender, the sender could not have received it till after the expiration of the six months required by Section 77.
5. As a matter of law the Munsif has rightly interpreted Section 77, The claim must be preferred in writing to the Railway Administration within six months from the date of the delivery of the goods. It is clear that this was not done. The date of the signature of the Chief Commercial Manager, by which alone the act of waiver can be fixed upon the Railway Administration, is the 30th December. The Munsif has taken a curious line upon this part of the case. No evidence apparently was called upon the subject. Indeed there was no evidence as to at what hour of the day on the 23rd the notice was registered, and that must make a great difference, as everybody knows, to the time of despatch from the registering office. What he has done, while holding that the plaintiffs are not responsible for the delay over which they had no control, is to look at the Railway Table, and to hold that this notice was bound to reach Calcutta two days after the day on which it was posted. That is a curious inference to draw.
6. In the first place no sender of a letter puts it into a train but first has to register it at the Post Office and the Post Office have their Ordinary course of business for transporting the things committed to them to their destination. Nor, if the train by which the document reached the railway station of the destination on the 25th of December, would it necessarily follow that the notice would be delivered by the postman on the same day. As a matter of fact, one is entitled to take judicial notice of the fact that there is almost invariably a delay of twenty-four hours between the arrival of a registered letter at its destination and its distribution from the Post Office, or in other words a Registered letter takes twenty four hours longer than an ordinary letter. But if there is any question of law arising at all in the way in which, the case has been submitted, it appears that the Munsif has misconstrued the legal method of determining how a document shall be deemed to have been served by post under this Act. Section 142 provides that it shall be deemed to have been served at the time when the letter containing it would be delivered in the ordinary course by post, and the methods of proof are there provided.
7. When a member of the public leaves things so late as the last forty-eight hours of the liberal allowance made by the Legislature of six months for giving notice of a pecuniary loss for which he wishes to be compensated, he must take particular care to show by evidence that in the ordinary course of post the document in question would have been delivered within the six months. To prefer a claim in writing to a person within the meaning of Section 77, clearly means, as the Munsif thought, that it must reach him. In this case it would be necessary to prove by evidence when this notice was registered at the Post Office of Barahdwari, how long it would take, in the ordinary course of post, to get to the Calcutta train, on what date that Calcutta train would reach Calcutta (Howrah), and then according to the ordinary course of business in Calcutta what interval of time would elapse between the arrival of the train, at Calcutta station and the despatch, of the letter from the Calcutta Post Office to the Chief Commercial Manager. As a matter of fact, the Munsif had evidence before him without any sworn testimony namely, one of the acknowledgments due sent with the document and posted in Howrah, not registered on the 30th of December which did not reach its destination, whatever it may be, we are unable to read it but it must be the destination of the despatchers or an intermediate Post Office, until the 1st of January. Therefore an ordinary letter took two days, and a registered letter would ordinarily take three It would, therefore, appear that in this case the waiver on which the plaintiff is entitled to rely, does not begin (because under any circumstance he was late in putting the registered letter in course of post) until a time when it was too late for him to comply with Section 77, and if the point is to be decided, as, in our opinion it ought to be decided as a question of fact, it did not, in fact, reach anybody in the Railway Administration who could either accept it, or reject it, until too late to comply with Section 77, Let the case be returned to the Munsif with this expression of our opinion.