Panchapagesa Sastry, J.
1. This is plaintiff's appeal against the decree of the Subordinate Judge, Chittoor, dismissing his suit for recovery of value of mangoes sent by him for transport from Damalacheruvu on the M & S M Railway to Victoria Terminus, Bombay, on the G. I. P. Railway and for freight charges paid by him. The goods were consigned on 5-8-1945 and he paid a very large amount of Rs. 1024-6-0 for freight charges. The baskets of mangoes contained Neelam, Rumani and Thotapuri varieties. The plaintiff claims Rs. 6450. His case is that the mangoes reached Bombay in a damaged condition owing to considerable delay on the part of the railways which he attributes to their misconduct either on the part of their administration or their servants. The suit as framed is one for value of the mangoes sent plus the freight charges and he reserved his right for damages. In substance, however, I think the case may be treated as one for damages caused to him by the whole transaction. The Governor-General in Council is the first defendant and two railway systems, the M. & S. M. and the G. I. P. Railways, defendants 2 and 3.
2. Substantially the written statements admitted the delay in transit of the suit consignments over the G. I. P. Railway but denied the liability to make good any amount to the plaintiff. They took their stand on the terms of the risk note and in particular they stated that the claim was for an exaggerated amount and without prejudice to their offer of Rs. 2642 in full settlement, they contested the case. Later on the written statement was allowed to be amended and there was a specific plea that no valid and proper notice of the suit under Section 80, Civil P. C., was served upon the Governor-General in Council. This plea of want of notice under Section 30, Civil P. C., was allowed to be raised by the first defendant, who was originally 'ex parte'. The written statement of the second defendant was also allowed to be amended and the amended statement appears to have been, adopted by the 1st defendant.
3. The lower Court has found that the no-lice under Section 80, Civil. P. C., is bad. As regards the damage caused actually by the misconduct of the railway servants it has fixed it at Rs. 4575 apart from the freight charges. The lower Court was also of the opinion that the company was liable and the risk note does not protect the defendants. The suit was, however dismissed because of its findings with regard to Section 80, Civil P. C., notice. Plaintiff has come on appeal, and there is a memorandum of cross-objections by the respondents with respect to costs disallowed and also raising, the grounds objecting to the correctness of the finding as regards the value of the mangoes sent. The points for determination are: (1) Is the suit bad for want of proper notice under Section 80, Civil P. C.? (2) What is the correct amount of the value of the mangoes and what should be the amount to be given to the plaintiff in case the defendants are liable? (3) Are the defendants protected by the terms of the risk note? (4) Is the order as to costs correct?
4. 'Point No. 1', Notice under Section 80, Civil P, C., is, no doubt, mandatory and its terms must be fully and properly complied with and cannot be ignored as observed by me in 'Subramanyam v. The Union of India'. : AIR1951Mad416 . Though it has been held that Section 80 can be waived, in the present instance, the written statement was allowed to be amended before trial and I cannot disregard that plea. The objection under Section 80 is that it is not so stated in the notice and though it is addressed to the Secretary, Central Government, Railway Board, New Delhi, it does not state that the Governor-General-in-Council will be sued. I have had to deal with this matter in the case already referred to and also in a recent appeal, 'Sankunni Menon v. South Indian Rly.', A S No. 543 of 1947, decided by me a fortnight ago. I was of opinion that the decision in 'Governor-General-In-Council v. Krishnaswami Pillai, 1946 1-Mad L J 267, was clearly distinguishable and that the notices in question in those cases were valid. Following those decisions I hold that the notice in the present case also is not objectionable. It was, however, sought to be argued that the notice itself did not say that it was under Section 80, Civil P. C., and that might make a difference, In the present case even the amended statement proceeds on the footing that it is really a notice under Section 80but it is not a valid and proper notice. Even the defendants do not say that there was no notice at all under Section 80, but only state that its terms were not proper. It may be that in some cases where there is some ambiguity, the absence of the reference to Section 80 might have a bearing, but in the present case, having regard to the fact that the defendants themselves never stated at any time before that there was no notice at all under Section 80 and all that they stated in the additional statement was that there was no valid and proper notice, that is they raised an objection to the legality of the notice and not to the absence of the notice at all, I am of opinion that the present plea is no good.
5. The next question for consideration is what is the proper value of the mangoes sent. (After discussing the evidence, the judgment proceeded:) I therefore, confirm, but with some hesitation, the figure arrived at by the lower Court. To this must be added the freight charge, admittedly and the whole amount will now come to Rs. 5399-6-0.
6. A larger question was raised at the instance of the defendants that there is no proof of misconduct on the part of the railway administration or its servants and all that was admitted was a mere delay in the transit. It was argued that as this was a consignment under risk' note B. 1, the proviso casting the duty or disclosure upon the railway administration will not apply, and that it is the first part of the risk note which applies to it. According to it the consignor undertakes to hold the railway administration harmless and free from all responsibility for any loss, destruction or deterioration or damage to the said consignment from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants. The argument was that delay is not the same as misconduct and that there is no proof in this case of any misconduct other than any inference to be drawn from the delay. This it was stated was not permissible. Reliance was placed upon a number of decisions to explain the meaning of the term 'misconduct'. In my opinion it is unnecessary to go into the matter elaborately as I find that in this particular case this conduct is to be taken as established. I agree the proviso cannot apply. But the failure on the part of the railway authorities to produce the necessary documents which were summoned for and which their counsel undertook to produce and their refusal to answer interrogatories which they were directed to answer as per the order in 'I. A. Nos. 57 and 87 of 1047' are sufficient to justify an adverse inference being drawn against the railways concerned. The delay is not only unexplained, but all efforts to get at the materials to establish, if possible, the actual misconduct, were frustrated by the non-production of the relevant documents by the deliberate act of the railway concerned. In these circumstances it is not surprising that the lower Court came to the conclusion that the railway cannot escape liability under the terms of the risk note apart from the proviso. I agree with it.
7. In the result, there will be a decree for the plaintiff for Rs. 5399-6-0 with proportionatecosts here and in the Court below. It is unnecessary to deal with the memorandum ofcross-objection, which is also dismissed butwithout costs.