JUDGMENT : In this appeal by the plaintiff-appellant, arising out of a suit for compensation for non-delivery of a part of the consignment, the only point urged is whether on account of non-service of the notice under Sec. 77 of the Indian Railways Act the plaintiffs claim is liable to be dismissed.

2. The plaintiff was the consignee in respect of two bales of handloom saries. At the time of taking delivery on 20-7-1950 at Howrah it was found that the bales were torn. Open delivery however was obtained, and on checking the contents 74 pieces of saries worth Rs. 1460/10/- were found short. P.W. Nityagopal Shaha, the only witness examined in this case, stated that at the time of delivery he saw the iron beltings of the bales removed. The learned munsif found that there was no "loss" and that, consequently, the notice under S. 77 of the Indian Railways Act was not essential. The learned lower appellate court inferred "loss". The main reasons appear in the following observations :

"In the present case there is no evidence that at the destination station before the unloading of the bales for delivery to the consignee-plaintiff the bales were intact and that the Railway Administration had

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