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Judgment
Shiv Dayal, J.
This second appeal arises from a suit for recovery of damages for short delivery and losses in connection with a consignment of 1005 bags of Ammonium Sulphate weighing 2715 mds. and 9 Srs. booked at Bombay (Central Railway) to Dhamtari (South Eastern Railway). The consignment was booked on 11th June 1957.
When the Plaintiff took delivery of the goods at Dhamtari Railway Station on 25th June 1957, it was found that one bag (2 Mds. 30 Srs.) was missing, 300 bags torn and badly damaged; 3 bags were totally empty.
The Plaintiff sued the Central Railway and the South Eastern Railway. The former did not enter appearance and the case proceeded ex parte against it. The latter resisted the suit. The trial Court found in favour of the Plaintiff on the issues regarding consignment of goods, their weight, shortage and (he quantum of loss incurred. However, it dismissed the suit on three grounds:
(1) no notice was given to the Central Railway;
(2) the notice given to the South Eastern Railway was not valid; and
(3) there was no evidence whether the loss occurred on the South Eastern Railway.
The Plaintiff appealed. His appeal was dismissed by the First Additional District Judge, Raipur, on the aforesaid three grounds.
In this second appeal Shri Upadhyaya, Learned Counsel for the Plaintiff contends that the Courts below were not right in holding that the suit was not maintainable against the Central Railway. In the Courts below it was conceded that no notice was given to that Railway. A copy of the notice is shown to me from the record. But it is dated 14t h March 1958, and, as the goods were booked on 11th June 1957, the notice was clearly barred by time. The notice which was not given within the prescribed time is of no avail. It is now settled law that each Railway which is to be sued, has to be given notice. See Jetmull Bhojraj Vs. The Darjeeling Himalayan Railway Co. Ltd. and Others, . I am unable to accept Shri Upadhyaya''s contention that since no specific objection was taken by the Central Railway the objection as to want of notice must be deemed to have been impliedly admitted or waived. Provisions of Order 8, Rule 6, Code of Civil Procedure, apply where the Defendants resist the suit and files a written statement. The Rule specifically refers to "pleadings of the Defendant". Where a written statement is not put in, this Rule is not attracted. The decision in AIR 1949 25 (Nagpur) relied on by Shri Upadhyaya is clearly distinguishable on that ground. For these reasons I agree with the Courts below that the suit was not maintainable against the Central Railway.
As regards the liability of the South Eastern Railway the first ground for dismissal of the suit is that the consignment was not booked at any station on the South Eastern Railway nor is it proved that the loss actually occurred on the South Eastern Railway. Since it is not disputed that the consignment was delivered to the Plaintiff by the South Eastern Railway at Dhamtari Railway Station, according to the law laid down in Jetmull Bhojraj Vs. The Darjeeling Himalayan Railway Co. Ltd. and Others, (Tara 22) in para 24, the burden had shifted to the delivering Railway (South Eastern Railway) to prove that the damage did not occur on its Railway.
Shri Mukherjee has not relied on any evidence in this case to show that the loss did not occur on the South Eastern Railway. In my judgment, the suit was therefore, maintainable against the South Eastern Railway.
This brings me to the question whether the notice given by the Plaintiff to the South Eastern Railway was valid. The only objection to that notice is that it was addressed to the Chief Commercial Superintendent. The trial Court relied on Section 140 of the Railways Act. That section, as it stood at the time when the present suit was filed, required a notice to be served on the Manager. It is only by a subsequent amendment of the section that notice may now be served either on the Manager or the Chief Commercial Superintendent. Section 140 employs the word ''may''. There is nothing to show that the provision is mandatory and ''may'' must b9 read as ''must''. The object of service of notice is to enable the Railway administration to make an enquiry and investigation. I would, therefore, hold that the notice served on the Chief Commercial Superintendent is valid. This view was also taken in Shamsul Huq Vs. Secy. of State, . It is true that a contrary view was taken in Deorao v. G.I.P. Railway 8 NLR 34 and AIR 1927 276 (Nagpur) . However the correctness of these decisions was doubted in AIR 1948 17 (Nagpur) .
Referring to the Short-notes of two unreported decisions, Hirasao and Company v. Union of India 1954 NLJ Note No. 278 and Ibrahim Ali v. Union of India 1955 NLJ Note No. 368 the trial Court held that the notice served on the Superintendent of Claims was not valid. Those decisions, it appears, proceed on the ground that there was no specific direction that the Superintendent of Claims was deputed by the Railway to receive such notices and deal with such claims. The trial Court distinguished the decision in Union of India v. Imperial Tobacco Company of India, Lid. 1959 MPLJ 749 on the ground that the notices were addressed to the Manager, and what was condoned was the service of the notice on the Superintendent of Claims. So also Union of India v. Ramnarayon 1958 MPLJ Note No. 167 was distinguished on the ground that the Central Railway had actually assessed the damages within the purview of the provisions of Section 77 of the Railways Act. In Jetmull Bhojraj Vs. The Darjeeling Himalayan Railway Co. Ltd. and Others, (Para. 22) their Lordships have laid down that a notice u/s 77 should be liberally construed, and, among other things, the Calcutta decision in Shamsul Huq v. Secretary of State1 has been approved.
In Union of India v. Ashrfi Devi and other 1957 MPLJ 294 notices were given to the General Traffic Manager and the Superintendent of Claims. It was held that since the notices given by the Plaintiff in respect of a claim for damages were dealt with by the Superintendent of Claims, this indicated a course of conduct on the part of the Railway Administration from which it could be inferred that due authority was given to the Chief Traffic Manager to receive and deal with notice of claims through the Superintendent of Claims. The notices were held valid. In the present case also the Plaintiff''s notice was actually received by the Chief Commercial Superintendent who entered into correspondence with the Plaintiff (See Ex. P. 14). I am, therefore, of the opinion that the notice was valid. This was also the view taken in Ramco Textiles v. Union of India AIR 1960 Kerala 257.
Shri Mukherjee strenuously endeavoured to take a new plea in this Court that the goods were booked at the owner''s risk rate and as the Plaintiff did not prove misconduct or negligence of the railway servants he was not entitled to damages. The Learned Counsel relied on Natwarlal v. Union of India 1957 MPLJ 153 = AIR 1957 MP 167. In my opinion, the Defendant cannot be allowed to take this new plea in this Court. It was not pleaded in the written statement that the goods were consigned at owner''s risk rate. The question of its consequence does net arise. No other point was urged for the Respondent.
The appeal is allowed. The judgments and decrees passed by the Courts below are set aside. The Plaintiff shall get a decree for (Rs. one thou-sand three hundred ninety-eight and twelve paise) Rs. 1398 12 P. with costs throughout against the South Eastern Railway. So far as the Central Railway is concerned this appeal is dismissed with costs.
Appeal allowed.