The Chief Commercial Superintendent, as an agent of the railway administration, had the authority to waive the protection of Section 77 of the Indian Railways Act on behalf of the Union of India, and his waiver amounted to a waiver by the Union of India.

K. C. DAS GUPTA, J. :- The petitioner has sued the Union of India for compensation for short delivery out of two consignments of oil. The defendant contended that the railway was not liable for the loss; that in any case, the plaintiffs had not the right to sue for compensation for the loss and lastly that S. 77, Indian Railways Act barred relief.

2. The trial Court held that the railway was liable and the plaintiffs had the right to sue and calculated the compensation to which the plaintiffs would be entitled but for the provisions of S. 77, Indian Railways Act - as the price of 2 maunds 27 seers of oil at the rate of Rs. 39/8/- per tin of 17½ seers and the price of 1 maund 27 seers at the rate of Rs. 35/- per tin of 17½ seers and a further sum of Rs. 17/15/9 pies on account of freight over-charged. It held, however, that as S. 77, Indian Railways Act had not been complied with, the plaintiffs were not entitled to any relief and accordingly dismissed the suit.

3. The only question before us is whether S. 77, Indian Railways Act barred the relief. Section 77 is in these words :

"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."

4. It appears that the notice of claim was sent to the Chief Commercial Manager but the service of this notice, it is said, is not sufficient compliance with the provisions of S. 77, Indian Railways Act. It may be mentioned here that S. 77, Indian Railways Act does not speak of service of any notice or of any document; and if the question was res integra, I would have been prepared to investigate whether, in spite of this, the provisions of S. 140, Indian Railways Act have to be complied with in preferring a claim. In numerous cases, where the question whether a claim had to be preferred in the manner laid down in S. 140, Indian Railways Act arose, it has been assumed that S. 77 requires the service of a notice and it has been held that such notice had to be served in the manner laid down in S. 140. I do not think it necessary, therefore, to pursue this matter further as we are bound by the authorities to hold that a notice on the Chief Commercial Manager did not amount to the preferment of a claim to the railway administration.

5. On behalf of the petitioner, it is contended that even though "notice" under S. 77, Indian Railways Act has not been served, the plaintiffs are entitled to relief as the defendants agent, the Chief Commercial Manager, has waived the protection of S. 77.

6. From the evidence on the record, we find that on 18-2-1953, the plaintiff company wrote to the Chief Commercial Superintendent and submitted therewith their claim for compensation. On 23-5-1953, the Chief Commercial Superintendent replied to this letter in these words (Vide Ex. 3(d)) :

"Dear Sir,

Re : Samalkot to Garden Reach, Inv. No. 2

and 3 of 21-11-52.

Your No. Nil of 18-2-53.

My enquiry shows that old dented and rusted drums, which are not suitable even for nominal handling, were used in this case and as such the contents were leaking through joints. Careful enquiry in this case does not reveal any negligence or misconduct on the part of the Railway or its servants.

In the circumstances, while the loss is very much regretted, any claim for compensation in respect of the same cannot be entertained."

7. 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 S. 77 has been served.

8. I