Bind Basni Prasad, J.
1. Having regard to the conflict of authorities on the interpretation of Section 77, Railways Act we have arrived at the conclusion that this case should be referred to a Full Bench.
2. Briefly the facts are that two consignments, one of 246 bags and the second of 316 bags--total 562 bags of rice were made from the railway station Canning on the Bengal and Assam Railway to Dohrighat on the O. T. Railway on the 30th and 31-7-1942. These consignments never reached the hands of the plaintiffs and then they instituted a suit for the recovery of Rs. 9,500 as compensation. Learned Civil Judge had decreed the claim for Rs. 8,072-10-3 only.
3. One of the points raised in defence was that notice under Section 77, Railways Act had, not been given in the manner provided in Section 140 of the said Act to the three railways administrations namely: The Bengal and Assam Railway, the Best Indian Railway and the O.T. Railway. The contention on behalf of the plaintiffs-respondents was that according to Section 77 notice is required only when there has been 'loss, destruction or deterioration of animals or goods delivered to be carried.' It was argued that non-delivery or misdelivery of goods did not fall within the words 'loss, destruction or deterioration.' On this point there is a conflict of authorities not only between the decided cases of this Court but also between the late Chief Court of Avadh and this Court. In Sheo Dayal Niranjan Lal v. G. I. P. Rly. Co., 1927 ALL. L. J. 89, a Division Bench of this Court held that :
'The word 'loss' in Section 77, Railways Act includes non-delivery or loss to the plaintiff.'
In Secy. of State v. Firm Daulat Ram Makhan Lal, 1937 ALL. L. J. 794, it was held by a Division Bench of this Court that where the claim is for non-delivery or misdelivery it is not one for loss and so no notice is necessary under Section 77. In B. & N. W. Rly. Co., Ltd. v. Special Manager, Court of Wards, Balrampur 0043/1925 , a learned single Judge of the late Chief Court held that a claim simply for compensation for non-delivery must be understood as including or involving a claim for the loss of goods within the meaning of Section 77 and notice was necessary. In E. I. Rly. Co. v. Kali Charan Ram Prasad A. I. R. 1922 pat. 106, it was held that in a suit for compensation on account of non-delivery of the goods consigned, Section 77 has no application and the Railway Company is not entitled to any notice in case of non-delivery. Further conflict of authorities on this point is discussed at pp. 582 to 886 of Hari Rao's commentary on the Indian Railways Act, 1949 Edition. It is desirable that the conflict of authorities so far as this Court is concerned should be set at rest.
4. Let this case be placed before Hon'ble the Chief Justice for Constitution of a Full Bench to decide it.