Renupada Mukherjee, J.
1. The plaintiffs of the Trial Court are the appellants in this appeal. They instituted the suit in the Trial Court against the union of India as owning and representing the then Bengal Nagpur Railway for recovery of compensation for non-delivery of nine bags of spices and condiments as described in the schedule of the plaint. The non-delivery was attributed, to the gross negligence and mis-conduct on the part of the Railway servants. The total claim was laid at Rs. 2298/- the price of the spices being assessed at Rs. 2273/8 as and proportionate railway freight for the non-delivered bags being assessed at Rs. 24/8as. It was also alleged in the plaint that notice under Section 77 of the Indian Railways Act had been served on the Claims Officer. Bengal Nagpur Railway, and notice under Section 80 or the Code of Civil Procedure was served on the General Manager of the Bengal Nagpur Railway.
2. The suit was contested by the Union of India which denied its liability by contending that there was no negligence or misconduct on the part of the railway servants--the loss of the goods being due to a theft committed by some miscreants. It was also contended that the notices in question were not served according to law.
3. The Trial Court held upon the evidence adduced by the parties that the notice under Section 80 of the Code of Civil Procedure was duly and legally; served and that the non-delivery of the goods was due to the misconduct and gross negligence of the railway servants and the story of theft set up in the defence was highly improbable. It was further found that the amount claimed by way of compensation was not excessive or unreasonable. In spite of these findings the suit was dismissed on the ground that the notice under Section 77 of the Indian Railways Act having been served on the Claims Officer and not on the General Manager, the service was not valid and not in accordance with law, and that the defective service of the notice disentitled the plaintiffs from recovering any compensation from the Railway Administration.
4. The plaintiffs preferred an appeal from the decree of dismissal passed by the Trial Court. The Lower Appellate Court confirmed all the findings of the Trial Court, including the finding on the question of service of notice under Section 77 of the Indian Railways Act. Accordingly the Lower Appellate Court dismissed the appeal. So the plaintiffs have preferred this second appeal.
5-6. There is no doubt that the claim of the appellants should be decreed if it is found that the service of notice under Section 77 of the Indian Railways Act was good service, because the other findings of the Courts below about negligence and misconduct of the railway officers and the quantum of damages are findings of fact based upon evidence, and they cannot possibly be controverted by the respondent in a second appeal.
7. The only question which arises for our decision in this appeal is : Whether the service of notice under Section 77 of the Indian Railways Act upon the Claims Officer was good and valid service?
8. That the notice of claim was actually served on the Claims Officer is not disputed in this case. Mr. Acharjyya submitted on behalf of the appellants at one stage of his argument that the service of this notice on the Railway Administration is merely discretionary and not mandatory. Section 77 of the Indian Railways Act runs in the following terms :--
'77. Notification of claims to refunds of overcharges and to compensation for losses : A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within sis months from the date of the delivery of the animals or goods for carriage by railway.'
9. Having regard to the imperative language of the section, I am not prepared to accept Mr. Acharjyya's contention that the service of notice is merely discretionary and not mandatory.
10. Section 140 of the Indian Railways Act lays down the manner of service of notice on railway administrations. The section runs in the following term?:--
'140. Service of notices on railway administrations--Any notice or other document required or authorized by this Act to be served on a railway administration may be served, in the case of a railway administered by the Government * * *, on the Manager and, in the case of a railway administered by a railway company on the Agent in India of the railway company-
(a) by delivering the notice or other document to the Manager or Agent; or
(b) by leaving it at his office; or
(c) by forwarding it by post in a prepaid letter addressed to the Manager or Agent at his office and registered under Part III of the Indian Post Office Act, 1866 (XIV of 1866).
11. It is an admitted fact that the Bengal Nagpur Railway which was once administered by a railway company was being administered by the Government at the relevant time, that is, at the time when there was non-delivery of appellants' goods. So the notice in this case should, in the ordinary course of things, have been served on the General Manager of the railway administration for proper compliance with the provisions of Section 140 of the Indian Railways Act. It is not disputed that the word 'Manager' in Section 140 refers to the General Manager of the railway.
12. Mr. Acharjyya contended on behalf of the appellants that it has been held in several cases of this High Court and other High Courts that there is sufficient compliance widi the provisions of Section 140 of the Indian Railways Act if the notice is served upon the Chief Commercial Manager who generally deals with claims instead of the General Manager of the railway. He drew our attention to a case reported in Union of India v. Gujrat Tobacco Co., : AIR1955Cal448 , where it has been held, after a discussion of various cases of our High Court and other High Courts, that the notice served under Section 77 of the Indian Railways Act upon the Chief Commercial Manager instead of on the General Manager is good service, as claims against the railways are dealt with by that officer. Service of notice of claim upon him must be taken to be substantial compliance with the requirements of law. It has, no doubt, been pointed out in the abovementioned case that a contrary opinion has been expressed in an earlier decision of this Court reported in Union of India v. Indumati Sana, : AIR1951Cal512 , but the preponderance of authority is certainly in favour of the view that notice served upon the Chief Commercial Manager is good service.
13. Mr. Acharjyya contended on behalf of the appellants that since the preponderance of view of this Court is that service of notice of claims on the Chief Commercial Manager of a railway is good service, it should also be held that service of notice of such claims upon the Claims Officer should also be held to be good service inasmuch as the Claims Officer actually deals with all claims which are notified under Section 77 of the Indian Railways Act. Mr. Basil appearing on behalf of the defendant respondent contended, on the other hand, that there is no justification for extending the principles of the decisions referred to above to a case where notice of a claim is given to the Claims Officer who is subordinate in rank to the Chief Commercial Manager. In my judgment, it is not necessary in the present case to decide this question, because there is a notification in this case issued by the then Agent of the Bengal Nagpur Railway expressly authorising the Claims Officer to receive notices under Sections 77 and 140 of the Indian Railways Act.
14. The notification runs in the following terms :--
'Railway notice, Bengal Nagpur Railway. Service of notice of claim under Sections 77 and 140 of the Indian Railways Act.
The public are advised that notice of claim for compensation for animals or goods lost or damaged, and for refund of overcharge or other claims required to be made on the Agent and General Manager, B. N. Railway, Calcutta may be served on the undernoted official : The Claims Officer, B. N. Railway, No. 1 Royal Exchange Place, Calcutta. Any notice served will be treated as equivalent to one served on the B. N. Railway Administration in compliance with the provisions of Sections 77 and 140 of the the Indian Railways Act,
Sd. W.R. Fitzdgler,
Agent and General Manager.'
15. Mr. Basu contended that the notification quoted above stood valid and good during the regime of the railway when it was administered by the railway company, but it automatically lost its effect or validity as soon as the administration of the railway was taken over by the Government. I am not prepared to accept this contention as reasonable or sound. There can be no question that the General Manager can authorise a subordinate officer to receive notices under Section 77 of the Indian Railways Act (Vide the case of Messrs. Radhamadhab Kundu v. Union of India, 61 Cal WN 433). If the General Manager can delegate this authority himself, he can also tacitly agree to a delegation validly made by the Agent when the railway was being administered by a railway company. It is not the case of the Union of India that the notification which I have quoted and under which the Claims Officer was invested with authority to receive notices under Sections 77 and 140 of the Indian Railways Act, has been cancelled or withdrawn. The mere fact that the Government has taken over the administration of the railway does not mean that every office procedure prevalent during the time of the administration of the railway by the railway company was upset or that officers who were duly invested with some particular powers were automatically divested of those powers. In my judgment, such investiture of power once lawfully made does not automatically cease to exist with the assumption of the administration of the railway by the Government, but continues until the power is expressly cancelled or withdrawn. ' As the notification in the present case has not been withdrawn, I must hold that it is continuing as an effective and valid notification with the tacit approval of the General Manager of the Government-railway. That being the case, notice under Section 77 of the Indian Railways Act was given to the Claims Officer in pursuance of this notification. Service of this notice was, therefore, good and valid.
16. In view of my finding that the notice under Section 77 of the Indian Railways Act was validly served upon the railway administration and all other findings of the Courts below being in favour of the plaintiffs appellants, I must hold that the appeal should be allowed.
17. In the result, the appeal is allowed and the judgments and decrees of the Courts below are hereby set aside. The suit of the plaintiffs do stand decreed in the Trial Court. The plaintiff's appellants will get their costs in all the Courts from the defendant respondent.
B.N. Banerjee, J.
18. The admitted facts, in this appeal are that on April 3, 1950 plaintiffs appellants booked certain goods from Shalimar for despatch, by Bengal Nagpur Railway, to Bankura railway station. When delivery was made to the plaintiffs, at Bankura, on April 9, 1950, there was nondelivery in respect of one bag of alaich (cardamom), five bags of Jira (cumin) and three bags of chillis, cut of a total number of ninetynine bags, booked at Shalimar. The plaintiffs preferred, in writing, their claim for compensation, in respect of goods' not delivered to them, to the Claims Officer of the railway administration, on August 16, 1950, well within six months from the date of delivery of the goods for carriage by the railway. As the claim was not paid, the plaintiffs served notice, under Section 80 of the Cods of Civil Procedure, on the General Manager of the railway administration and thereafter brought the suit, out of which this appeal arises, claiming Rs. 2298/-.
19. Both the Courts below dismissed the plaintiffs' claim on the short ground that the notice of the claim given to the Claims Officer did not amount Jo notification of a claim for compensation for loss within the meaning of Section 77 read with Section 140 of the Indian Railways Act. Hence this second appeal by the plaintiffs.
20. It was contended, on behalf of the plaintiffs appellants, that the claim made to the Claims Officer was sufficient Compliance with the statutory provisions because :--
(a) In exhibit 5, railway receipt, which represented the contract between the railway administration and the plaintiffs, the following provision appears :--
'All the claims against the Railway for loss or damage to goods must be made to the clerk in charge of the station to which they have been booked before delivery is taken and that a written statement of articles missing or of the damage received must be sent forthwith to the Claims Officer, Bengal Nagpur Railway, Royal Exchange Place, Calcutta, otherwise the Railway will be freed from responsibility.' (b) At the time when the Bengal Nagpur Railway was administered by a railway company, there was a public notification made as hereinbelow quoted :--
'Railway notice Bengal Nagpur Railway. Service of notice of claim under Sections 77 and 140 of the Indian Railways Act. The public are advised that notice of claim for compensation for animals or goods, lost or damaged and for refund of over charge or other claims required to be made on the Agent and General Manager, B. N. Railway, Calcutta, may be served on the under-noted official.... The Claims Officer, B. N. Railway, No. 1, Royal Exchange Place, Calcutta. Any notice served will be treated as equivalent to one served on the B. N. Railway Administration in compliance with the provisions of Sections 77 and 140 of the Indian Railways Act.
Sd/- W. R. Fitzdgler,
Agent and General Manager.'
21. It was argued that after the Bengal Nagpur Railway was taken over by the Central Government, the aforesaid notification was not cancelled and at the material time governed the procedure for making claims for compensation before the railway administration.
22. Mr. Ajoy Kumar Basu, appearing for the respondent railway, contended before us that exhibit 5 also contained provision to the effect that notice must also be served on the railway, within six months as required under Section 77 of the Indian Railways Act. Therefore, the provisions for sending written statement of the claim to the Claims Officer did not absolve a claimant from the duty of sending statutory notice of claim to the Manager of the railway administration. So far as the notification, issued by the company owned Bengal Nagpur Railway, was concerned, Mr. Basu took up the position that the notification lapsed when the Central Government took over the administration of the railway from the railway company, because the Manager of the Government administered railway did not appoint the Claims Officer, as his agent for the purpose of settling and paying compensation for goods lost in transit.
23. I am of opinion that the provisions for notification of claim for compensation has been over-emphasised in this case, resulting in a failure of justice.
24. It appears, from the evidence adduced in this case, that the Claims Officer is the person, who is responsible for investigating claims. It appears, further, that the Claims Officer did entertain the claim made by the plaintiffs, and by his letter, dated December 21, 1950, informed the plaintiffs that he was making enquiries into the claim.
25. In the case of Sristidhar Mandal v. Governor General in Council : AIR1945Cal412 , there was notice under Section 77 of the Indian Railways Act served upon the Chief Commercial Manager. Hen-derson; J. held that the said notice was good notice, although not served, strictly in accordance with Section 77 read with Section 140 of the Indian Railways Act. In giving reasons for his decision, his Lordship observed :--
'The law is certainly remarkable, if a good claim is to be dismissed, because a notice is given to the Officer whose duty it is to investigate it......... .... The service of a notice under Section 77 is not a condition precedent to the institution of the suit. Section 140 was undoubtedly enacted to help claimants and not to assist the railway administration to make a dishonest defence. If the notice is served within its terms the Railway have no answer. It docs not matter in the least whether any individual officer knew about it or not. It is, however, sufficient to comply with Section 77 if in fact notice is given to the railway administration. .... .... ....It is quite obvious that, if the notice under Section 77 had been sent to the General Manager, he would merely have forwarded it to the Chief Commercial Manager. In these circumstances, it would be preposterous in say that no notice has been given to the Railway administration.'
The above view was quoted with approval by P. N. Mookeriee and Guha Ray, JJ. in the case of : AIR1955Cal448 . I respectfully agree with the exposition of law made in the above two decisions.
26. Then again in the case of South Indian Cooperative Stores Ltd. v. Union of India, : AIR1957Cal17 , notice of claim was sent to the Chief Commercial Manager. Das Gupta and Guha, JJ. held that although the Indian Railways Act required service of notice under Section 77 in the manner laid down in Section 140 of the Act, protection under Section 77 could be waived. Proceeding further their Lordships observed :--
'It is important to notice that in this letter, the Chief Commercial Superintendent refuses to entertain the claim on the ground that there was no negligence or misconduct on the part of the railway or its servants, but does not say that no claim can be entertained until and unless notice as required under Section 77 has been served.
In my judgment, this should be taken to amount to waiver by the Chief Commercial Superintendent of the protection of Section 77 of the Indian Railways Act,
The question, however, remains: Was the Chief Commercial Superintendent competent to waive this right? Quite clearly, the Chief Commercial Superintendent was dealing with the claim for compensation as an agent of the railway administration--which term includes the defendant--the Union of India. Had he, as agent, any authority to waive on behalf of the Union of India, the protection of Section 77? Prom the notification produced before us by the learned Advocate who appeared for the defendant, we find that the Chief Commercial Superintendent had authority to settle claims up to a sum of Rs. 5000. In my judgment, authority to settle such claims carried with it an authority to waive, in respect of such claims, the protection of Section 77 of the Indian Railways Act; otherwise authority to settle claims would be unworkable.'
27. In the case of 61 Cal WN 433, Bachawat, J. held that the requirements of Section 77 of the Indian Railways Act would be satisfied if the claim was preferred in writing to any person authorised by the Manager to receive claim on his behalf.
28. In the present case also the Claims Officer did entertain the claim made by the plaintiffs and did not turn it down on the ground that proper notice under Section 77 of the Indian Railways Act had not been served. That makes the present case similar to the case reported in : AIR1957Cal17 , and on that ground alone, it may be held that the Claims Officer waived notice under Section 77 of the Act.
29. Mr. Basu tried to resist the point as to waiver on a twofold ground. He argued, in the first place, that there was no evidence in this case to the effect that the Claims Officer was the proper authority to entertain claims for compensation, and secondly, the Claims Officer did not occupy a position of importance like that of the Chief Commercial Superintendent, whose conduct constituted waiver in the case reported in : AIR1957Cal17 .
30. I am of opinion that the argument of Mr. Basu is wholly unacceptable. Exhibit 5, railway receipt, shows that the Claims Officer was the Officer to whom claims for compensation had to be made. That makes him an officer authorised by the Railway to entertain claims. Further, the letter, dated December 21, 1950, written by the Claims Officer to the plaintiffs, shows that the said officer was himself making enquiries into the matter of the claim of the plaintiffs, I am satisfied, on evidence, that the Claims Officer was the proper authority to entertain the claim for compensation. Then again, he may not be as important an officer, in the hierarchy, as the Chief Commercial Manager, but that is a matter of no consequence. Which officer the railway administration may choose for entertaining claims for compensation is its domestic affair. The railway administration might have chosen an official higher in status than the Claims Officer, for this type of work, but, in its wisdom, it chose the Claims Officer to attend to claims for compensation. Suffice it for the purpose of the plaintiffs that the Claims Officer was the Officer authorised by the respondent railway administration to look into the claim preferred by the plaintiffs. In these circumstances, I hold that service of notice under Section 77 of the Indian Railways Act, according to the procedure prescribed in Section 140, was waived by the railways administration in this case, inasmuch as it allowed the Claims Officer to investigate the claim, made by the plaintiffs, even without service of notice according to the statute.
31. Lastly, there is the notification issued by the Bengal Nagpur Railway, while under company administration. In the said notification the Claims Officer was expressly made the person authorised to receive notice under Section 77 of the Indian Railways Act. The plaintiffs were, under the provisions of the aforesaid notification, right in serving the notice, under Section 77, on the Claims Officer,
32. Mr. Basu strongly urged that the aforesaid notification must be regarded as having had lapsed when the administration of the Bengal Nagpur Railway was taken over from the railway company by the Central Government. I do not find any reason that it must be so. There is nothing to show that the General Manager of the Government owned Bengal Nagpur Railway cancelled the above notification. Representation had been made, by the company owned railway administration, to the public to the effect that service of notice under Section 77 could be made on the Claims Officer, thus making the Claims Officer an agent of the railway administration, for the aforesaid purpose. When, the Central Government took over the railway administration, no different representation was made to the public. The Claims Officer continued to discharge the same functions. The conduct of the respondent was such that the Claims Officer was held out and continued to be held out as the person authorised by the Manager of the Government owned railway, to receive notice under Section 77 of the Indian Railways Act. Exhibit 5, railway receipt, prescribes the procedure for making claims in respect of compensation for loss incurred in transit. Under that procedure also, claims are to be made to the Claims Officer. Exhibit 5 thus indicates that the notification far from being cancelled was being continued in operation. In these circumstances, I am of opinion that the notice under Section 77 given to the Claims Officer was sufficient compliance with the statute.
33. I hold further that the taking over of the company owned railway by the Central Government had not the effect of ipso facto determining all public notifications made by the company owned railway. There is no law which has the effect of necessarily cancelling all prior notifications, made by a company owned railway, on the railway administration being taken over by the Central Government.
34. In the above view of the matter, I agree with the order made by my Lord.