A notice of claim under Section 77 of the Railways Act must be addressed to the railway administration from which the compensation is demanded.

Judgement

MOHAPATRA, J. :- This is a First Appeal by the plaintiff against the judgment and decree dated 13-5-1949 of Sri B.K. Patra, Subordinate Judge of Puri, dismissing the plaintiffs suit for recovery of a sum of Rs. 5633/- as damages on account of the injuries to the goods deliverable to the plaintiff at Sakhigopal, a station on the B. N. Railway. Defendant 1 is the Union of India representing the former East Indian and Bengal Nagpur Railways, and defendants 2 and 3 are the General Managers of Bengal Nagpur and East Indian Railways respectively.

The plaintiff purchased 147 baskets of red potato seeds from Patna Ghat station and consigned the same on 31-10-1946 from Patna Ghat station on the E. I. Railway to be delivered to him at Sakhigopal. The consignment was delivered to the plaintiff on 21-11-1946, while the usual time taken for transit from Patna Ghat station to Sakhigopal was not more than 11 or 12 days.

On taking delivery of the goods the plaintiff found the potato seeds in thoroughly rotten condition and therefore obtained a certificate from the Assistant Commercial Inspector of the B. N. Railway Administration to the effect that sixty five per cent of the goods had been damaged. The plaintiff in the present suit asserts that the damage was to the extent of eighty per cent.

Thereafter the plaintiff sent a notice of claim to the Claims Officer, B. N. Rly., for compensation for the injury to the goods due to gross negligence and misconduct on the part of the employees of the Railway Administration. The plaintiff asserts that a copy of this claim was sent to the General Manager, E. I. Rly., also. The claim was finally repudiated on 22-2-1948. Thereafter the suit has been brought on 13-3-1948.

2. The defence is three-fold. First that the consignment was sent under Risk Notes "A" and "B". Risk Note A was executed as the consignor elected to dispatch the goods at the owners risk, that is, at a much reduced rate. There was in fact no misconduct on the part of the employees of the administration. The consignment itself was of perishable goods liable to be damaged and deteriorated on account of natural cause.

Secondly, the plea was taken that the suit was not maintainable as against the East Indian Railway on account of the absence of notice under S. 77, Indian Railways Act (Act 9 of 1890); and thirdly, that the suit was barred by limitation under Art. 30,

Limitation Act as the suit was brought more than a year after the date of delivery, that is, 21-11-1946.

3. The Court below accepted each of the contentions of the defence and dismissed the suit. If any of the three contentions of the defence succeeds the plaintiff is bound to be non-suited.

4. It is the admitted case of both parties that the consignment left Patna Ghat station on 31-10-1946 and reached Patna City station on the E. I. Rly. on that very day. The wagon containing the consignment was detained in the Patna City station till 10-11-1946 and reached Sakhigopal on 20-11-1946. The delay was on account of the wagon having been detained in the Patna City station for eleven days.

It is the common case of both parties that after 10-11-1946 there was no delay at all and the consignment having left Patna city station on 10-11-1946 had reached Sakhigopal in due time. The misconduct, if any on the part of the Railway administration must be confined to the E. I. Railway administration if delay is not explained and not to the B. N. Rly. administration. Manifestly, therefore the claim as against the B. N. Rly. administration must fail.

The explanation of the delay put forth by the E. I. Rly. administration was that on account of the communal riots in Bihar during that period it was impossible to move the wagons during those days. We will take up this explanation for examination later; but we will first consider whether the suit is maintainable against the E. I. Rly. administration as no notice was given to the said administration under S. 77 of the Act.

The position is indisputable th