A suit for compensation for loss of goods booked through railways of two or more Railway Administrations can be instituted against the railway other than the railway to which the consignment was delivered only if the loss, injury, destruction or deterioration thereof occurred on that railway.

Kanhaiya Singh, J.

1. This is a second appeal by the Union of India arising out of a suit for compensation for loss of consignment. The facts are these : A consignment of two cases of Agarbatti was booked by the Modern Indian Trading Company at a station called Jaswantpur on the Mysore Railway for despatch to the plaintiff firm which was the consignee deliverable at Patna Junction station which is on the Eastern Railway (formerly East Indian Railway). The consignment was not delivered to the plaintiff. After certain correspondence the plaintiff instituted the present suit for recovery of Rs. 651-8-0 on account of loss of the goods on the allegations that in spite of the protracted correspondence and also service of notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, their claim remained unsatisfied.

2. The consignment had to pass through several railways, viz., the Mysore Railway, the Southern Railway, B.N. Railway and the East Indian Railway. But the plaintiff sued only the East Indian Railway through the Union of India. The other Railways were not impleaded as defendants.

3. The Union of India representing the East Indian Railway denied liability in toto for the loss and also pleaded non-maintainability of the suit by reason of non-compliance with the provisions of Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure.

4. The learned Munsiff held that the provisions of Section 77 of the Indian Railways Act were not attracted, that the notice under Section 80 of the Code of Civil Procedure was not served on the General Manager of the Railway and that the loss of the consignment did not occur on the East Indian Railway. On these findings, he held that the East Indian Railway was not liable for compensation and dismissed the suit.

5. The learned Additional Subordinate Judge affirmed the finding of the learned Munsif that the loss of the consignment did not occur on the East Indian Railway, and the service of the notice under Section 77 of the Indian Railways Act was not necessary. As to the service of notice under Section 80 of the Code of Civil Procedure, he differed from him and held that there was sufficient compliance with the provisions of Section 80. He was further of the opinion that although the loss did not occur on the East Indian Railway the latter was liable for the damages by reason of the provisions of Section 74-E of the Indian Railways Act. He accordingly decreed the suit.

6. The Union of India has come up in second appeal.

7. The contention of Mr. P.K. Bose, appearing for the appellant, is that though the Mysore Railway, as the booking Railway, was always liable for the loss, irrespective of the place where it occurred, the other Railway Administrations incurred no liability unless the loss occurred on any of those Railways.

8. He pointed out that in view of the concurrent findings of the Courts below that the loss of the consignment did not take place on the East Indian Railway (now Eastern Railway), the appellant was not liable for the compensation at all. He urged that the learned Subordinate Judge was wrong in thinking that the liability of the appellant arose by reason of Section 74-E of the Railways Act. His argument is that Section 74-E did nothing but give statutory recognition to the terms of the contract in vogue before. He relied upon the provisions of Section 80 of the Indian Railways Act and contended that this section was not in any way controlled by Section 74-E of the said Act. The question that falls for determination is : where in a case any consignment was booked through over the railways of two or more Railway Administration, a suit for compensation for loss of the consignment can be instituted against the railway other than the railway to which the consignment was delivered without the proof of loss, injury, destruction or deterioration thereof on that railway. Section 80 of the Indian Railways Act provides