Effect of not sending notice to such Railways.

This civil revision petition is by the Governor-General in Council owning the B.B. &38; C.I. Railway represented by the General Manager seeking to set aside the decree passed by two Judges of the Presidency Small Causes Court, Madras, in a New Trial Application preferred by the respondent against the judgment of the Chief Judge of the Court of Small Causes, Madras, dismissing the claim for loss sustained by the respondent by the failure of the company to deliver one bale of textiles.

Both the trial Judge as well as the two judges who heard the New Trial Application came to the conclusion that the loss of one bale of textiles consigned by the respondent was due to the misconduct of the railway administration itself and not by any other agency outside the railway administration. Both are of the definite opinion that some of the railway employees were responsible for the loss of this one bale in question. The misconduct of the employees of the administration is certainly the misconduct of the administration itself. On this point, there is no question raised by the petitioner. Besides, it being a finding of fact, no question can be raised either.

The main question that has been argued before me by the learned counsel for the petitioner is that section 77 of the Indian Railways Act has not been complied with. Section 77 lays down thus:

“A person shall not be entitled to a refund of an over-charge 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.” The learned trial Judge relying upon the language of the section has brushed aside the authorities quoted before him by the respondent and came to the conclusion that he failed to see how a statutory requirement can be got over by an appeal to its objects and reasons, however good it may be. He further stated that no decision of this Court had been cited to that effect before him. On the other hand, the two Judges who heard the New Trial application have placed reliance upon the decision in Shamsul Hug v. The Secretary of State for India in Council1and Govindlal v. Governor-General in Council2, and came to the decision that the object of the section and the intention of the Legislature underlying this section should be looked into and that it should not be interpreted in too strict a manner to deprive the plaintiff of his legitimate right to claim the loss from the railway administration for non-delivery of goods consigned. The learned counsel for the petitioner has invited my attention to the decision in East Indian Railway Co. v. Jethmull3, which reversed the judgment of Tyabji J., and held that the strict compliance of section 77 was required before any person could be entitled to claim a refund or compensation for the loss of property entrusted to the railway administration. If this decision had stood by itself, probably I would have been inclined to agree with the learned counsel for the petitioner. But the learned counsel for the respondent invited my attention to a decision in M. & S.M. Railway Co., Ltd., v. Haridoss Banmalidas4, which has also been cited by the learned counsel for the petitioner. In that decision at page 884 Spencer, J., has observed as follows:-

“If ‘destruction’ is to include deliberate acts of the company, or its servants, I cannot see why the word ‘loss’ should only apply to cases where the goods have been mislaid. If the company is liable for negligence it must a fortiori be liable for wilful acts. I think the intention of the Legislature in inserting section 77 into the act must have been that by requiring notice to be given before claims are put in, the company might have time to investigate such cases and meet the cla