Messrs. Radhamadhab Kundu and Others vs Union of India and another

Bachawat, J.—The Revision petition arises out of a suit for damages for non-delivery of goods delivered to the East Indian Railway Administration for consignment from Baghbazar, a station on that Railway to Dhubri, a station on the Assam Railway. The East Indian Railway is owned and administered by the Union of India. Prior to the suit the plaintiff preferred a claim in writing by letter, dated the 10th June, 1950 sent by registered post to the Chief Commercial Manager, East Indian Railway. The letter was sent within six months from the date of the delivery of the goods for carriage by the Railway Administration.

The Trial Court formulated three points for decision: (1) Were the statutory notices duly served? Are they legally valid? (2) Has the Court jurisdiction to try the suit? (3) Are the plaintiffs entitled to recover any compensation, if so, to what extent?

On point No.1 the Trial Court held that the service upon the Chief Commercial Manager, East India Railway, was not service upon the Manager, East Indian Railway and, therefore, there has been no legal service of the claim u/s 77 of the Indian Railways Act.

On point No.2 it held that the Court had jurisdiction to try the suit. On point No.3 it held that but for non-service of the notices u/s 77 of the Railways Act the plaintiff would be entitled to recover the price of the goods not delivered at Rs.90/- per maund.

A Full Bench of the Court of Small Causes affirmed the finding of the Trial Court on points Nos.2 and 3. Agreeing with the Trial Court''s decision on point No.1 the Full Bench affirmed the decree of dismissal by the Trial Court.

Before me the findings of the Courts below on points Nos.2 and 3 have not been alleged. The sole question, therefore, is whether the notice u/s 77 of the Indian Railways Act was duly served on the Railway Administration.

In the interest of justice additional evidence has been received in this Court. It appears that the General Manager had issued a public notification to the following effect:-

"Service of notice of claims u/s 77 and 140 of the Indian Railways Act.

The Public are advised that service of notice of claim for compensation for animals or goods lost or damaged or other claims required to be made on the General Manager, E. I. Railway, Calcutta, may also be made on the undernoted officials :-

1) The Chief Commercial Manager, Howrah Goods E.I. Ry., Howrah, in respect of bookings over and via the E.I. Ry. To Howrah and other sections in the Calcutta area.

2) The Chief Commercial Manager, Claims, Mint House, E.I. Ry. Benares, U.P. in respect of bookings to all other E.I. Ry. Stns and

3) The Chief Commercial Manager, E.I. Ry., Fairlie Place, Calcutta in respect of (1) and (2).

In proof of this Notification, a copy of the Amrita Bazar Patrika, dated the 25th November, 1943 has been tendered by the learned Advocate for the petitioner and has been received without objection from Mr. Bose. Mr. Bose, who very fairly conducted the case on behalf of the Union of India did not dispute that there was such notification by the General Manager and that it was in force on the relevant date.

The relevant sections of the Indian Railways Act are as follows:-

3(6). "Railway Administration" or "Administration" in the case of a railway administered by the Government means the Manager of the Railway and includes the Government, and, in the case of a railway administered by a railway company, means the railway company:

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 his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.

Any notice or other document required or authorised 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 pre-paid letter addressed to the Manager or Agent at his office and registered under Part III of the Indian Post Office Act, 1866."

The requirements of Section 77 read with Section 3(6) are satisfied if the claim is preferred in writing within the time prescribed either to the Manager of the East Indian Railway Administration or to the Union of India, who owns and administers the railways.

Following, (1) ; (2) Surendra Nath Vs. The Governor General in India in Council and Others, , (3) Civil Revision Case No.3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) I hold that the officer designated as the General Manager is the Manager within the meaning of Sections 3(6) and 77. It is not, therefore, necessary to discuss the consequence, which will follow if there is no Manager in existence as contemplated in Section 3(6) and the discussion on this point in (2) Surendra Nath Vs. The Governor General in India in Council and Others, , (4) ILR 57 Cal 1286 and 44 Cal 16 is not material.

In my opinion, the requirements of Section 77 are satisfied if the claim is preferred in writing to any person authorised by the Manager to receive the claim on his behalf.

The Manager can do by means of an agent whatever he can do himself. He can, therefore, receive a claim preferred u/s 77 through his agent.

It is to be observed that u/s 72 of the Indian Railways Act the Railway Administration is responsible as bailee only for goods delivered for carriage to the railway administration. It is clear beyond doubt that if the goods are delivered for carriage to a duly authorised agent of the Manager, the Railway Administration is responsible as a bailee for the goods so delivered. It has never been contended that it cannot be contended that the goods must be delivered to the Manager personally before the railway administration can be held responsible for the safe carriage of the goods. In my opinion, similarly it cannot be contended that the claim u/s 77 of the Indian Railways Act must be thrust into the hands of the Manager personally and that the Manager cannot receive the claim through his agent.

In (6) ILR 7 Lah, 238 : AIR 1926, Lah, 253 at 255, Sir Shadi Lal, Chief Justice, observed:

"There is no warrant for the proposition that the Agent of a railway could not delegate this duty to a subordinate officer. The maxim delegates non potest delegare lays down the general rule that when a principal has entrusted a power or a duty to an agent, the latter cannot delegate that power or duty to another person. But the law enacted by Section 77, read with Section 3, sub-section (6) of the Indian Railways Act views the Agent of a Railway as a principal, and not as a delegate; and the maxim which prohibits, subject to certain exceptions, a delegation by a delegate, in other words, a second delegation, cannot be invoked for the purpose of preventing the principal himself from delegating his power. The doctrine is well recognised that whatever a person has power to do himself, he may do by means of an agent, qui facit per alium facit per se."

In the same case Mr. Justice Broadway observed:

"The North-Western Railway has issued a Goods Tariff Pamphlet or Manual in which the public are informed that applications in connection with claims for compensation should be made to the Traffic Manager Claims Section Lahore. This Goods Tariff Pamphlet or Manual has been issued under the authority of the Agent of the North Western Railway. It seems to me clear, therefore, that the Agent has authorised the Traffic Manager, Claims Section, to receive notices in connection with claims for compensation and that therefore any member of the public addressing the Traffic Manager, Claims Section, in connection with a claim for compensation or loss of goods, etc., must be held to have given the requisite notice to the Agent."

Similarly, having regard to the Notification mentioned above it must be held that the Manager has duly authorised the Chief Commercial Manager to receive the claims preferred u/s 77 and that a claim preferred to the Chief Commercial Manager is a claim duly preferred u/s 77.

Where it is contended that a particular official has authority from the Manager to receive a claim, such authority must be proved. In the absence of such proof it has been held that it was not sufficient to send the claim to an official such as the Traffic Manager, (7) (1926) ILR 7 238 (Lahore) , (8) 19 CLJ 180, (9) The Assam Bengal Railway Co., Ltd. Vs. Radhica Mohan Nath ; or the Goods Superintendent, (10) 16 CWN 356, (11) Radha Kishen Chooni Lal Vs. The East Indian Railway Co. or the Traffic Superintendent, (12) 24, Cal, 306 or the Claims Superintendent, (13) 20 CWN 696.

In (13) 20 CWN 696 at 698 the Court observed:

"Where a particular officer is authorised by the Agent to receive such notice on his behalf is a question of fact that must be decided on evidence."

On this ground there being no proof of authority the Court distinguished the case in 18 CWN 24, where service on the Traffic Manager was held to have been sufficient.

In (1) 55 CWN 62, (2) Surendra Nath Vs. The Governor General in India in Council and Others, and (14) 59 CWN 1069 it has been held that sending of the claim to the Chief Commercial Manager was not sufficient compliance with Section 77 of the Indian Railways Act. In these cases, there was no proof that the Chief Commercial Manager was authorised by the Manager to receive the claim on his behalf. I must note that the decisions in (4) ILR 57 Cal 1286, (15) 49 CWN 240 and (2) Surendra Nath Vs. The Governor General in India in Council and Others, in so far as they broadly decide that the notice to the Chief Commercial Manager simpliciter given in the absence of proof of his authority are inconsistent with Union of India (UOI) Vs. Indumati Saha, . The last case is commented upon but is not actually dissented from in (16) Union of India (UOI) Vs. Indumati Saha, .

Sending of the claim to the Chief Commercial Manager is, however, sufficient where it is established that he is duly authorised by the Manager to receive the claim on his behalf.

In (17) Governor-General in Council Vs. Gouri Shanker Mills Ltd., Mr. Justice Manohar Lall in delivering the judgment of a Full Bench of the Patna High Court observed: "The requirements of Section 77 read with Section 140, Railways Act, are satisfied by serving a notice within the prescribed period on the Chief Commercial Manager or any other subordinate officer of a Railway company owned by the Government provided it is established as a fact that the Railway company by its course of business or the terms of the contract between the parties has held out a particular official as competent to deal with the claims on receipt of notice to him."

I am satisfied that the Chief Commercial Manager was duly authorised by the General Manager of the Railway concerned to receive the claim at the relevant time and, therefore, sending of the claim to him by letter dated the 10th June, 1950 was sufficient compliance with Section 77 of the Railways Act.

Assuming, that Section 77 requires "service" of the claim on the railway administration it is clear beyond doubt that in spite of Section 140 the claim need not be served on the Manager, and that it may be served on the Government administering the railways, for by Section 3(6) the railway administration includes the Government see ILR 44 Cal 16.

There is a conflict of opinion on the question whether if the claim is sent to the Manager it must be served upon him in accordance with Section 140. In (18) ILR 35 Cal 194, (19) 14 CWN 188, (2) Surendra Nath Vs. The Governor General in India in Council and Others, and (3) Civil Revision Case No.3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) it has been held that if the Manager is sought to be served, he must be served in one of the modes prescribed by Section 140. On the other hand, it has been observed in (20) ILR 57 Cal 1286 and (21) 34 CWN 1079 that service on the Manager may be made in a manner otherwise than that prescribed by Section 140.

Assuming that if the Manager is served he must be served in one of the modes prescribed by Section 140 I am clearly of the opinion that the notice has been so served on the Manager in this case. The claim was sent to the Chief Commercial Manager by duly prepaid registered post. The letter was duly delivered to and received by the Chief Commercial Manager sent a reply to the letter. The claim was, therefore, duly served upon the Chief Commercial Manager in one of the modes prescribed by Section 140. The Chief Commercial Manager being an agent of the Manager duly authorised to receive the claim on his behalf, service on the Chief Commercial Manager is service on the Manager as contemplated by Section 140.

Construing Section 106 of the Transfer of Property Act which provides for service of the notice to quit inter alia by sending it by post to the party concerned or by tender or delivery to him personally their Lordships of the Judicial Committee in (22) (LR) 45 IA 222 : AIR 1918 PC 102 observed "Service of a notice upon or delivery to such an agent would be good service or delivery to the principal though in fact the notice was destroyed by the agent and never was seen or heard of by the principal (Tanham v. Nicholson), (23) 1872 6 HL 561."

Similarly, service of notice on the Chief Commercial Manager who is the duly authorised agent of the Manager is service of the notice on the Manager.

In (3) Civil Revision Case No.3402 of 1954 (Makhan Lal Agarwalla v. The Union of India) it has been held (a) that the requirements of the notice u/s 77 may be waived by the railway administration. (b) that there was such waiver in that case in view of the notification authorising the public to send the claim to the Chief Commercial Manager.

It is well settled that the requirements of the notice u/s 77 may be waived.

In (24) Bansi and Others Vs. Governor-General of India in Council, Mr. Justice Das in delivering the judgment of a Full Bench of this Court observed: "The service of a notice of claim u/s 77 of the Indian Railways Act is intended for the benefit and protection of the Railway Administration and may, therefore, be waived."

In the very same case Mr. Justice Das, however, also observed "Such waiver must be made in the suit for refund or compensation and cannot be prior thereto."

These observations seem to have escaped the attention of the Division Bench in Civil Revision Case No.3402 of 1954 (Makhan Lal Agarwalla v. The Union of India).

I, therefore, prefer not to rest my decision on the ground that there has been or could be waiver of the notice u/s 77 of the Railways Act simply by reason of the notification mentioned above.

I rest my decision on the ground that having regard to the notification the Chief Commercial Manager, East Indian Railway Administration, was at the relevant point of time the duly authorised agent of the Manager, East Indian Railway Administration, and as such sending of the claim to the Chief Commercial Manager was due preferment of the claim to the Manager, East Indian Railway Administration.

I must, however, sound a note of warning lest this judgment may be a trap for the unwary public. Simply because the Chief Commercial Manager has been held to be the duly authorised agent of the Manager on the relevant date namely, on the 10th of June, 1950, it does not necessarily follow that he is now the duly authorised agent of the Manager. Authority must be proved from the relevant facts and the notifications, if any, in force at the relevant point of time. Further authority must be proved as a matter of fact in each case.

In this judgment I have chiefly confined to the decisions of this Court. I observe that the numerous decisions of this Court are very perplexing and contradictory to each other. I think on a suitable occasion this point has to be referred for decision to a Full Bench of this Court.

I, therefore, pass the following order:-

The findings of the Trial Court on points Nos. (2) and (3) mentioned in the judgment of the Trial Court are hereby affirmed. This Court adjudges and declares that the notice u/s 77 of the Indian Railways Act has been duly served upon the Railway Administration. The suit is remanded to the Trial Court in order that the Trial Court may pass a suitable decree in favour of the plaintiff having regard to the findings mentioned above.

The Rule is made absolute. The decree of the Trial Court dated the 12th June, 1952 and the order of the Full Bench, dated the 3rd June, 1953 are hereby set aside and the suit is remanded to the trial Court to be disposed of in accordance with law and in accordance with the observations made above.

There will be no order as to costs in this Rule.

The copy of the Amrita Bazar Patrika, dated the 25th November, 1943, may be returned to the learned Advocate for the petitioner after a certified copy is kept on the record of this Court.