G.K. Misra, J.
1. Plaintiff is the appellant. Plaintiff claimed Rs. 1168/- as damages on account of shortage of sugar of 31 maunds 103/4 seers. The consignment was delivered to North Eastern Railway for delivery at Bamra Station on South Eastern Railway.
2. The North Eastern Railway did not contest the suit. The South Eastern Railway filed a written statement admitting the quantum of damage but challenging the notice under Section 77 of the Indian Railways Act.
3. The learned Munsif held that the plaintiff had failed to prove that the loss occurred on the South Eastern Railway and that the plaintiff had cause of action against the North Eastern Railway hut not against South Eastern Railway. He further held that there was valid service of notice on South Eastern Railway under Section 77 but there was no service on North Eastern Railway. He accordingly dismissed the suit against both.
4. An appeal filed by the plaintiff was dismissed bv the Additional Subordinate Judge, Sambalpur. Against the appellate decree the Second appeal has been filed.
5. Mr. J. K. Mohanty, for the appellant contends that the finding of the courts below that the notice served on the North Eastern Railway under Section 77 was not valid is contrary to law. The notice (ext. 2) served on the South Eastern Railway is as follows:
'Laxminarayan Godindram, Salt, Cloth, General Merchant and Commission Agent.
P. O. Bamra. Dt. Sambalpur. B. N. Rly.
The Chief Commercial Superintendent,
South Eastern Railways,
1, Royal Exchange Place, Calcutta.
Ref. R/R No. 071555 dated, 6-9-57 Invoice No. 2 Ex. Darbhanga to Bamra 110 hags of Sugar.
Sub: Claim of short delivery of mds. 31-103/4 srs. of sugar valuing Rs. 1168/-.
With reference to the above consignment I have got 81 bags intact, with balance 19 bags weighing 21-23 mds. whereby I sustained a shortage of 31-103/4 mds. of sugar valuing Rs. 1168/-. The seal of the wagon was broken and the affected 19 bags cut for which necessary intimation had been sent to required quarters.
I, therefore, request you kindly to enquire into the matter and arrange to send my above claim of Rs. 1168/- within a month on receipt or this notice, else I will be forced to seek legal help in the matter.
Copy to -- Chief Comml. Supdt's Office
Gorakhpur, for information with
the following enclosures-
Enc. One copy of shortage Certificate,
One copy of Original Bill.'
A copy of this notice was served on the Chief Commercial Superintendent, Gorakhpur on the North Eastern Railway for information with the enclosures. From the notice itself it would be clear that R/R No., Invoice No. with the station of delivery were clearly mentioned. A copy of the shortage certificate and a copy of the original bill were also enclosed with the notice. In the notice the basis of the claim for Rs. 1168/- was given and it was clearly mentioned 'that the claim should be satisfied by the Railway within a certain period. Whoever reads the notice would absolutely have no doubt in his mind that the compensation was being claimed on account of the shortage of 31 mds 103/4 srs. of sugar despatched from North Eastern Railway to South Eastern Railway. As a copy of the notice was given to the Chief Commercial Superintendent, North Eastern Railway, both the courts below held that so far as N. E. Railway is concerned it did not satisfy the terms of Section 77 of the Indian Railways Act. A Division Bench decision of this Court reported in Fagumani Khuntia v. Dominion of India, AIR 1956 Orissa 29 was relied upon in support of the contention that Ex. 2 was not a valid notice so far as N. E. Railway is concerned.
6. The relevant portion of Section 77 is quoted below:
'A person shall not be entitled ......... to compensation for the loss, destruction or deterioration of ......... goods delivered to be so carried unlesshis claim to ............ compensation has Been preferred in writing by him or on his behalf to the railway administration within six months from the date of delivery of the ............ goods for carriage byrailway'.
The exact question was before their Lordships in AIR 1956 Orissa 29 and after construing the section their Lordships held that copy of such notice given to another railway would not constitute a valid notice under Section 77. Their Lordships observed as follows: ,
'Indeed there is no form for such a notice under Section 77 and the writing in any form need notbe styled as such a notice. The intention behind the provisions of the section is that the particular railway administration must be aware of the claim, of the plaintiff against them so that they may avail of the opportunity of settling up the claim.'
What seems to us to be essential for compliance with the provisions of the section is that it must be preferred in writing by the plaintiff or on his behalf, and further what is pertinent for our case is that the plaintiff must lay his claim as against the particular railway administration whom he is suing for obtaining a decree on the basis of the liability'.
Their Lordships specifically referred to Dumi Chand Ram Saran Das v. Secretary of State, AIR 1931 Cal 585 as supporting their view.
7. Mr. B. K. Pal for the respondent placed reliance on the aforesaid decisions as well as on another Division Bench decision of this Court reported in Union of India v. Banshidhar, 28 Cut LT 331: (AIR 1963 Orissa 54) wherein the principle laid down in AIR 1931 Cal 585 was not disapproved though distinguisned on the facts of the particular case.
8. In a recent unreported decision of theSupreme Court Jetmull Bhojraj v. Darjeeling Himalayan Rly. Co. Ltd. (now reported in AIR 1962SC 1879) their Lordships in the majority judgment observed as follows:
'The High Courts in India have taken the view that the object of service of notice under this provision is essentially to enable the railway administration to make an enquiry and investigation as to whether the loss, destruction or deterioration was due to the consignor's laches or to the wilful neglect of the railway administration and its servants and further to prevent stale and possibly dishonest claims being made when owing to delay it may be practically impossible to trace the transaction or check the allegations made by the consignor .........Bearing in mind the object of the section it has also been held by several High Courts that a notice under Section 77 should be liberally construed In our opinion that would be the proper way of construing a notice under that section. In enacting the section the intention of the legislature must have been to afford only a protection to the railway administration against fraud and not to provide a means for depriving the consignors of their legitimate claims for compensation for the loss of or damage caused to their consignments during the course of transit on the railway'.
Applying the aforesaid principle their Lordships held a particular letter and a telegram, which did not distinctly refer to the claim made, as having embodied an implied claim. AIR 1956 Orissa 29 and AIR 1931 Cal 585 construed the notice strictly and not liberally as enunciated by their Lordships of the Supreme Court, and can no longer be taken as laying down good law.
9. In my view Ex. 2 clearly brings forth a claim against both the railway administrations and is valid in law under Section 77 against North Eastern Rilway. The plaintiff's claim must accordingly succeed against N. E. Railway.
10. I would accordingly set aside the judg-ments of the courts below and pass a decree in favour of the plaintiff against the North Eastern Railway and dismiss the suit against the South Eastern Railway. The plaintiff would be entitled to costs throughout against the North Eastern Railway. The second appeal is accordingly allowed against the North Eastern Railway and dismissed against the South Eastern Railway.