1. The plaintiff consigned. 126 bags of sugar from a station on the East Indian Railway line to Banda, a station on the G.I.P. Railway. Delivery was made to the plaintiff at Banda of only 120 bags. Out of those 120 bags three bags were empty, six had been cut and their contents partly missing, and the remaining six bags were not delivered at all. The plaintiff, therefore, sued the East Indian Railway and the G.I.P. Railway for compensation on account of the six bags, which had not been delivered and on account of the shortage of sugar in nine of the bags delivered.
2. One of the pleas taken for the defence, was that the suit was bad for want of notice tinder Section 77 of the Railways Act. Both the Courts below have found that the plaintiff failed to prove service of notice upon the Railways, and dismissed his claim with costs.
3. The only argument which needs special consideration in second appeal is that so far as the six bags are concerned, which were not delivered, service of notice under Section 77 of the Railways Act was not: essential. The argument is that Section 77 only requires notice in a case of 'loss' of packages, and not when the packages have merely not been delivered, and loss to the Railway Company has not been proved.
4. The appellant relies upon the ruling in Badri Prasad v. G.I.P. Railway : AIR1925All144 in which it was held that under Section 77 of the Railways Act notice to the Railway Company is necessary only where-the claim is for compensation for loss, destruction or deterioration of the goods delivered for carriage. Loss must be loss by the Railway Company, and not merely to the owner. When the goods are not preyed to have been lost, and the plaintiffs' allegation is that they are being withheld by the Railway Authorities, no notice is necessary.
5. The facts of that case are different from the facts of the case from which this appeal arises. In the reported case, the missing package was alleged to have been withheld by the Railway Company, and the implication was that the Railway Company, although receiving the package was intentionally withholding it. The Railway Company replied that the missing package had never been received by them for despatch. In the present case, it is not denied that all the 126 bags were received for dispatch, and that only 120 were actually delivered, but there is no delegation that the six missing bags were intentionally withheld by the Railway, and this circumstance serves to distinguish the reported case from the one with which we are now concerned.
6. Moreover, there is a very clear ruling of a Judge of this Court in a recent case, East Indian Railway Co. v. Fazal Ilahi : AIR1925All273 which takes the contrary view. According to this ruling, so far as the requirement of, Section 77 of the Railway Act as to notice of suit to be given to defendant is Concerned, there is no distinction between a suit for damages on account of the 'loss' of goods by a Railway Company and a suit for damages on account of 'turn-delivery'. The learned Judge discussed and declined to follow, the ruling of the Patna High Court in East Indian Railway Co. v. Kali Charan Ram Prasad 69 Ind. Cas. 103 : 3 P.L.T. 215 : (1922) Pat. 145 : A.I.R. 1922 Pat. 106. Agreeing with the view of the law taken in East Indian Railway Co. v. Fazal Ilahi : AIR1925All273 , I hold that notice is necessary for a suit for damages on. account of non-delivery, as well a son account of 'loss', and that notice under Section 77 is required whether or not the Railway Company strictly proves that the goods have been 'lost.'
7. The other grounds of appeal have been argued before me, but they have no force. The appeal is, therefore, dismissed with costs including fees in this Court on the higher scale.