1. This is an appeal from a decision of Mr. B. K. Basu the District Judge of Burdwan dated 9th March 1928. In order to make it clear how the matter cam-) before that District Judge it is necessary to refer to the history of the case. The suit out of which the matter arises was brought by one Saniram Jitmal against the E.I. Ry. Co. and his claim was in respect of 61 bales of piece-goods which were sent on 10th May 1919 from Nagpur on the B. N. Ry. to be delivered to the plaintiff at Barakar, a station on the E. I. Ry. line. The goods in question were loaded in an E. I. Ry. wagon at Nagpur and the wagon was then sealed. The wagon was sent over the B. N. Ry. line as far as Asansol and there it passed into the charge of. the E I. Ry. Co. That company instead of forwarding it to Barakar apparently misreading the ' direction which was placed on the wagon sent it to Chitpur taking the address to be not Barakar but Barabazar. The Chitpur Railway Station is the joint property of the E.I. Ry. Co. and the E.B. Ry. Co. and upon arrival there it was found that the consignment had been tampered with; one bale was missing and of four bales there was only the gunny covering left. In effect therefore the plaintiff lost five bales of piece goods and he accordingly brought this suit against the E.I. Ry. Co. to recover the sum of Rs. 2,695-15-0 as damages together with a sum of Rupees 228-13-0 as interest making a total claim of Rs. 2919-12.0. The E.I. Ry. Co. resisted the claim mainly on two grounds : first of all, that the B.N. Ry Co. has not been made a party to the suit and secondly, that the notice as required by S.77, Railways Act of 1890, had not been properly served upon them. The suit was tried, or at any rate the judgment was given by the Subordinate Judge of Burdwan on 30th June 1922 and he made a decree in favour of the plaintiff for the sum claimed having found in favour of the plaintiff on the issues raised. Prom that decision of the Subordinate Judge of Burdwan the matter-was taken on appeal to the District Judge of Burdwan who was then Mr. P. B. Cammiade. The. defendants had appealed on two grounds; first of all that the Court below was in. error in holding that the notice under Sections 77 and 140, Railways Act, had been duly served on the defendant company's agent; secondly the Court below was wrong in holding that the loss of the goods had taken place while the wagon was in charge of the E. I. Ry. Co. The learned District Judge of Burdwan found that no claim had been made in accordance with law and that therefore the suit must fail. He also found that the plaintiff had been unable to establish that the theft of the goods took place, while they were in charge of the E.I. Ry. Co., that is the defendant company. In the course of his judgment he said that
the Subordinate judge was wrong in saying that the wagon was re-sealed at Asansol and there was absolutely no evidence that the wagon was examined on its arrival at Asansole. If the wagon was tampered with between ' Nagpur and' Dorgarparah the B.N. By. would be accountable for what was stolen on their line. The wagon was tampered with again while it was on the E.B. By. at Chitpur. Any theft that took place there would have to be accounted for by that railway. I fail to. see how the E. I. By, can be held liable for the loss of the goods.
2. He accordingly allowed the appeal and. dismissed the suit with costs. Thereupon the plaintiff appealed to this Court and his memorandum of appeal was presented on 27th June 1923. The appeal was heard by Suhrawardy, J., and. Graham, J., on 12th January 1926. It. is necessary, I think that I should refer to their judgment in some detail. They said:
The plaintiff appeals against the decision of the District Judge of Burdwan dated 21st March 19'23 dismissing His suit against the railway company to recover Rs. 2,919-12-0 under the following circumstances.
3. And then they set out the circumstances under which the goods were consigned. They then said:
On 10th May 1919 the plaintiff consigned 61 bales of piecegoods to Barakar station in the defendant company's line. He obtained delivery of the goods on 9th June 1919. Before obtaining delivery he found that the contents of four bales were short and that one bale was missing. He thereupon on 4th June 1919 sent a registered notice to the Agent of the Company of the loss. He sent several letters to the Divisional Traffic Superintendent, the District-Traffic Manager and the General Traffic Manager with reference to his claim. On 12th September 1912 he wrote another letter to the Agent of the defendant company and the third letter was also written to the Agent on 18th September 1919.These three letters to the Agent are numbered 1, 4 and 6 and they are respective Exs. 4, 10 and 13. The plaintiff's case is that out of 61 bales he got delivery of 56 whole bales. He did not get delivery of one bale and of the remaining four bales he found that they were tampered with and portions of the goods abstracted therefrom. He therefore claims from the company Rs. 2,695-15-0 the price' of the goods lost and the balance as interest on that amount.
4. Then my learned brothers said:
Two principal points were raised in the case: 'first, whether there was sufficient compliance with the provisions of Section 77, Railways Act, namely whether notice of the claim was served on the Agent before the suit was brought and secondly whether the loss was occasioned on the defendant's line or whether it could have taken place on the B. N. By. and whether the said railway was a necessary party to the suit. It should be noted that it is not disputed now that the consignment was not covered by a risk note. The trial Court found both the points in favour of the plaintiff and decreed the suit. The defendants appealed and the learned District Judge in the first appellate Court-held on the first point that the plaintiff had failed to prove that notice of the claim was served on the. Agent; and on the second point, that the plaintiff had failed to prove that the loss occurred on the defendant's line and could not have occurred on the E. B. Ry. station at Chitpur.
5. The learned Judges then referred in detail to the letter of 12th September 1919 and then they said:
It is argued that this letter should be treated as notice in sufficient compliance with the requirements of Section 77.
6. Then they went on to say:
The trial Court with reference to this exhibit remarks that there is no reliable evidence to show that it was sent by registered post; and on that point the evidence consists of the testimony of Kalipada who says that the press copy;is of a letter written by him and Bala Buksh proves that he registered the letter written by Kali Babu.
7. This evidence was accepted by the 'Subordinate Judge as proving the posting of the letter to the Agent. The learned District Judge has not examined the evidence with reference to this document as he might have been of the opinion that it was not a notice under the law. The learned Judges then came to the conclusion that as the learned District Judge had not taken that letter into account and had not considered the evidence with reference to it, it was necessary that the matter should be sent back to the lower appellate Court for a prehearing of the appeal on that point. Then they dealt with point 2. With regard to that they said:
It has been argued that the learned District Judge is wrong in holding that the. railway station at Chitpur belongs to the E. B. By. whereas it appears from the evidence of D. W. 3 that is a joint station of the E. B. and the E. I. Ry, Cos. It is also pointed out that the learned Judge is not right in saying that there is absolutely no evidence that the wagon was examined on its arrival at Asansol. We have been referred to D. W. 2 on this point, and as we are of opinion that this case should go back to the lower appellate Court for a rehearing of the appeal on-point 1, we direct that these questions may also be reconsidered by that Court.
8. The result of the appeal to this Court to which I am referring was that the decree of the lower appellate Court was set aside and the case remanded to that Court for a rehearing of the appeal on the question as to whether the letter dated 12th September 1919 was properly served on the Agent within the meaning of Section 140, Railways Act. Then this Court directed that that point was to be considered on the evidence as it stood on the record. The judgment further directed that the lower appellate Court would also consider the objection taken by the appellant with reference to the second point as indicated above. It will therefore be seen that on the referring back of the case to the District Judge of Burdwan he was directed to deal with two matters: first, to determine whether or not the letter of 12th September 1919 was sufficient in such circumstances as to constitute a vaild notice to the defendant company under Section 77, Railways Act read with Section 140; of that Act, secondly whether or not the evidence showed that the loss of the goods occurred while they were in charge of the E. I. Ry. Co. and not while they were subsequently in charge of E. B. Ry. Co. The case having gone back to the District Judge of Burdwan, came before Mr. B. K. Basu who had succeeded Mr. Cammiade in the office of District Judge. With regard to the first point he said referring to the letter of 12th September 1919:
On the other hand, nobody comes from the defendant's side to deny specifically the receipt of the letter to state that it was received in an ordinary unregistered cover. The written statement merely stated that the plaintiff did not give any notice to the Agent under Sections 77 and 140, Railways Act. This is not very explicit, but on the other hand the plaint did not give any particulars of the notices issued either. In the circumstances it is difficult to say that there is strict proof of the notice being sent registered. It is however argued that everybody knows that letters to the agent of a railway company must invariably be registered and that we can take it that it the letter was despatched at all it was sent registered. In my judgment this argument may be accepted and I find that the notice in question was duly served as required by the law.
9. He then proceeds to say:
The next question is whether the loss occured on the B. N. Ry. or on the E. I. Ry.
10. After having referred to some of the evidence he said:
My predecessor was however clearly in error in supposing that there was no evidence as to the wagon being examined at Asansol. D. W. 2 stated clearly that there was nothing wrong in the wagon in question which had the seals of Nagpur and Dorgarparah on either side of it before it was made over to the E. I. Railway at Asansol. Then as to Chitpur, where the loss is said to have taken place, it is true that D.W. who proves the loss is a servant of E. B. Ry. and could not say when the wagon was made over to the E. B. Railway suggesting that it was in the custody of the E. B. Railway when it was examined. But Chitpur is a joint station of the E. I. Railway and 13. B. Railway and in the state of the evidence it can be taken that the loss or theft took place before the wagon was made over to the E. B. Railway if it was actually made over to them and not afterwards. I therefore answer both questions in favour of the plaintiff.
11. The learned District Judge seems to have bean under a misapprehension as to what this Court had intended him to do in the matter because it seems clear from the judgment of this Court that the intention was that the case having gone back to the learned District Judge of Burdwan ho should finally dispose of the appeal. But instead of so doing he returned the record for submission before this Court and as a result of that the record was apparently put before the same Bench and an order was made by this Court on 21st December 1927 directing the record of the case to be sent back once more to the lower appellate Court with a request that the appeal should be reheard on all the points including the points suggested in the judgment of this Court dated 12th January 1926. There the matter was once more sent before the District Judge of Burdwan for the second time, and on 9th March 1928 he gave a further judgment which began in this way:
This appeal has again been returned to this Court by the Hon'ble High Court for rehearing on all the points and for final disposal.
12. He then set out a brief chronological history of the case and pointed out that the E. I. Ry. Co's. defence was, first, that the notice of the claim was not sent by registered post; and (2) that it had not been shown that the loss occurred on their line and not on the B. N. Ry., or on the E. B. Ry. He said:
In my judgment dated 5th September 1927 I gave reasons for holding that both these defences were without substance,
and he concluded by saying that ha saw no good reason for revising his findings recorded on 5th December 1927 and he once more dismissed the appeal.
13. That is the decision out of which the appeal with which we are now concerned arises; but as in effect it merely reiterates and confirms, so far as the material points are concerned the previous judgment dated 5th December 1927 for practical purposes, it is that judgment that we have to concern ourselves, with and this appeal is in fact an. appeal by the E. I. Ry. Co. against the conclusion arrived at by the learned District Judge in his judgment of 5th December 1927. The main point which has been taken before us once again is the question of the validity of the notice which was given to the E. I. Ry,. Co. The appellants are still concerning themselves to contend that at no time did they ever receive such a notice as could be said to comply with the pro visions of Section 77, Railways Act of 1890, read in conjunction with the provisions; of Section 140 of that Act. I desire to say as forcibly as I can that in my opinion the attitude adopted by the Railway. Company in this matter is one which is in the highest degree reprehensible. As far as one can see it has never had at any time seriously been contended by the Railway Company that the goods in question were not lost to the plaintiff; nor was it contended that the suit was instituted against defendants who were not in fact responsible for the loss the plaintiff sustained.
14. Throughout the proceedings from the first to the last the defence was mainly-founded upon this question of notice: but the E. I. By. Co has strenuously sought to escape the liability on what, after all in the circumstances of this particular case, is a very technical point. A mere survey of the history of this case shows that for a period of no less than 11 years this Railway Company have been resisting the claim of the plaintiff on a technical point, a claim which is honestly put forward on the part of the plaintiff,. For myself, I can only express regret that the manner in which these proceedings have been conducted on that point of view, reflects but little credit either on the Railway Company concerned or those who are responsible for the conduct of this litigation on behalf of the Railway Company. It seems to me deplorable that a public body which is in fact a Government department should endeavour to escape liability in the way in which these defendants have been attempting to absolve themselves, particularly having regard to the circumstances of this case because admittedly several letters were sent to the Railway Company making a claim in respect of the loss which the plaintiff has suffered; and long before six months had elapsed correspondence was going on between the parties indicating that the Railway Company had the matter in hand and were making enquiries into the plaintiff's claim. But in spite of all that, when the matter came before the Court and throughout the various stages of the litigation, the Railway Company have sought to contend that be cause, as they said, none of those letters were seat by registered post or at any crate because there was no strict proof 'that any of the letters were sent by registered post, the defendant company ought not to be made liable. The appellants in the argument which was advanced before us in this appeal have relied upon the passage in the judgment of the District Judge of Burdwan to which I have already referred. It is quite true that the learned Judge there says '' It is difficult to say that there is strict proof of the notice being sent registered': He also says:
It is urged that everybody knows that letters to the Agent of a Railway Company must invariably be registered, and that we can take it that, if the letter was despatched at all, it was sent registered.
15. But the evidence given before the learned Subordinate Judge of Burdwan who tried the case shows that there was in fact some evidence that this or some of the other letters had in fact been sent by registered post. Moreover the point was never taken that the letter had not been sent to the proper officer of the defendant company, that is to say, to the Agent. The defendant's sole contention was that it had not been sent to him ''registered' as required by Section 140, Railways Act of 1890. It was in fact never seriously contended that the Agent of the Railway Company did not receive a notice of the plaintiff's claim, and it is indeed obvious from the correspondence in the matter that a claim was in fact made and made within six months as required by Section 77. Taking these two matters together, namely, the evidence referred to in the judgment of the District Judge which I have already mentioned and the fact undoubtedly the Railway Company did have notice of the plaintiff's claim we think it is not unreasonable that the learned District Judge should have come to the conclusion that the letter of 12th March 1919 was in fact sent by registered post; and it is to be observed that he does come to a definite finding on this point when he says: ' I find that the notice in question was duly served as required by law.' I ought to make one or two observations with regard to the law applicable to this point. Section 77, Railways Act provides:
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 six months from the date of the delivery of the animals or goods for carriage by railway.
16. We are satisfied that the facts of this case are such as to put upon the plaintiff the obligation laid down in that section. Something was said in the course of the argument on the question whether or not there was a 'loss' of the goods within the meaning of this section. As to that we are clearly of opinion that despite some authorities which may indicate the contrary the plaintiff's claim was really for nondelivery, that is, a claim for compensation for the loss of his goods and therefore he had to give notice as required by Section 77. There are a number of decisions which indicate that Section 77 is governed by Section 140, Act. That section provides that:
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 or a Native State, on the manager and, in the case of a railway administered by the 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 3, Post Office Act of 1868.
17. There are a number of authorities which have decided that the word 'may' in the section is to be read as if it were the word 'must' and accordingly it is obligatory upon the person who is making a claim under Section 77 to put forward that claim and to give notice in one or other of the three ways indicated in Section 140. Accordingly it is argued that the claim is to be sent not by ordinary post but by registered post. If the matter had been [an open one personally I should have [been more disposed to take the view which was enunciated in the case of Mahadeva Ayar v. S.I. Ry. Company Limited A.I.R. 1922 Mad. 362 where Kumaraswami Sastri, J., at p. 217 (of 42 M. L. J.) referring to Section 77, Railways Act said:
The object of the section is to see that the company gets notice and there is no magic in 'the methods provided for by the section to see that it reaches him, if as a matter of fact the notice comes into his hands.
18. The same learned Judge is of opinion that Section 140 is merely an enabling provision and that the word 'may' does not [mean 'must.' However for the purpose of the present case we will take it that there was an obligation on the plaintiff in this case either to put forward his claim by registered post or to serve his notice by one of the other ways enuraorated in Section 140. In the circumstances [of this case it is quite obvious that the E. I. Ry. Company had, apart from this [question whether notice was received by registered post or not, ample notice of the claim put forward by the plaintiff so as to enable them to ascertain whether it was an honest claim and make the necessary enquiries and to have decided whether they would admit the claim 'before any legal proceedings were instituted against them. That being the case, it is as I have said very discreditable that they should have so strenuously resisted the plaintiff's claim on this highly technical point. That being the position there are really no merits in the defence put forward by the Railway Company. We are therefore not in the least disposed to interfere with what is a definite finding of fact arrived at by the learned District Judge of Burdwan in his judgment of 5th December 1927. It is clearly not a case where there is any doubt on a question of fact.
19. It is now necessary that I should say a word or two upon point 2 which has been raised in this appeal, namely, the question whether or not the evidence satisfactorily shows that the goods were lost while they were in custody of the defendant company and not while they were in custody of either of the two other railway companies. The first observation one ought to make with regard to this point is that in their defence as originally put forward the defendants made no attempt whatever to suggest that the liability for the plaintiff's goods rested not upon them but upon the B. N. Ry. It is true that the B. N. Railway Company might have been made defendants in the suit. But that was a matter which was within the province of the plaintiff or his legal advisers because under Section 80, Railways Act it was open to the plaintiff to sue the B. N. Ry. Company, being the persons with whom he originally made the contract for the carriage of goods from Nagpur to Barakar or to sue either the E. I. Ry. Company or the E. B. Ry. Company as the company actually responsible for the loss of the goods. The plaintiff chose to take what was perhaps the more risky line of action in suing the E. I. Ry. Company and charging them as being the body which was responsible for the loss of his property.
20. It did not however, in my opinion lie with the E. I. Ry. Company as the defendants selected by the plaintiff to suggest, as they did that the plaintiff ought to have brought in the B. N. Railway as defendants or to have sued them alone as being liable for the loss of the goods. The E. I. Ry. Company might themselves have taken proper steps to bring in the B. N. Ry. Company as a party who might be liable in the alternative to themselves or as a party liable to indemnify them against any loss which they might suffer by reason of having had to pay compensation to the plaintiff. In any event the case put forward by the defendents on this point, was purely a formal matter for they did not at all contend that it was the B. N. Ry. Company which was alone liable to the plaintiff. The defence made in the written statement was that so long as the goods were in the defendant's charge they were taken care of properly and that the defendants were not guilty of any negligence towards the plaintiff and were not responsible for the loss of the goods. Nowhere however did they suggest that the goods were not intact at the time when the wagon arrived at Asansol and was from there forwarded to Chitpur for Barabazar instead of being forwarded to Barakar; and so far as there was any indication in the defence set up of any reasons why they themselves were not responsible it was (hat the loss had occurred after the goods had passed out of their charge into the charge of the E. B. Ply. Company when the wagon arrived at Chitpur station. It therefore comes to this that the substantive defence raised was that it was the E. B. Railway and not the defendants themselves who were responsible for the loss of the plaintiff's goods. Now, with regard to that the learned District Judge in his judgment of 5th December 1927 said:
Then as to Chitpur where the loss was first detected; it is true that the D. W. 3 who proves the loss is a servant of the E. B. Ry. Company and could not say when the wagon was made over to the E. B. Ry. Company suggesting that it was in the custody of the E. B. Ry. Company when it was examined.
21. Then he goes on to say:
But Chitpur is a joint station of the E.I. Ry. and the E. B. Railway and in the state of the evidence it can be taken that the loss or theft took place before the wagon was made over to them and not afterwards.
22. In other words, having started with the assumption that the E. I. Railway must have satisfied themselves that the goods were intact when the wagon came into their charge at Asansol he comes to the conclusion that the goods were not intact when the goods passed out of their charge at Chitpur. Obviously this is a finding of fact which fixes the actual responsibility for the loss upon the defendant company and no one else. Therefore so far as there is any real defence the material' findings are against the defendants' contention. Both the points therefore which were referred back to the learned District Judge of Burdwan, have, we think, been satisfactorily dealt with by him and his findings ought not' to be disturbed. Accordingly the appeal is dismissed with costs.
23. I agree.