Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. This appeal arises out of a suit brought by theplaintiffs (respondents) against the Secretary of State for India and theBengal Central Flotilla Company for compensation for the loss of goodsdelivered for carriage to the Eastern Bengal State Railway and the FlotillaCompany. The plaintiffs allege that they sent notices of demand to the TrafficSuperintendent and to the District Collector before the institution of thesuit. The defence was denial of liability on the ground that there was nonegligence on the part of the defendants. A further objection, not taken in thewritten statement, was urged on behalf of the Secretary of State at the time ofargument, that the claim for compensation was untenable under Section 77 of theIndian Railway Act (IX of 1890) for want of notice to the RailwayAdministration.

2. The first Court overruled the objection in bar and foundfor the plaintiffs on the merits, and gave them a decree for a certain amount,and that decree has been affirmed on appeal by the District Judge.

3. In second appeal it is urged on behalf of the Secretaryof State, first, that the Lower Appellate Court is wrong in holding that theTraffic Superintendent should be considered as the Managers agent, and thatthe notice to him was a sufficient compliance with Section 77 of the RailwaysAct; and, secondly, that the Lower Appellate Court is wrong in giving theplaintiffs a decree for the amount claimed when there is no evidence to prove thatthat was the value of the goods damaged.

4. Upon the second point it is necessary to say only this,that the evidence of the plaintiffs agent shows that the amount claimed is thetrue value of the goods, and that evidence has been considered sufficient bythe Lower Appellate Court. The second contention of the appellant musttherefore fail.

5. The first contention urged for the appellant is howeverin our opinion correct. Section 77 of the Indian Railways Act requires that ina case like this a notice of the claim should be preferred to the RailwayAdministration within six months from the date of the date of the delivery ofthe goods, and by Section 3 of the Act "Railway Administration" inthe case of a State Railway is defined to mean the Manager, and to include theGovernment. The notice that was given to the Government was not served withinsis months from the date of delivery of the goods; and the notice which wasserved within six months was a notice not to the Manager but to the Traffic Superintendent;and though there is nothing to show that the notice, though addressed to theTraffic Superintendent, reached the manager, within six months from the date ofdelivery of the goods, the Lower Appellate Court holds the notice to besufficient, because it is of opinion that the Traffic Superintendent should beconsidered as the Managers agent in such matters. We think the Court below iswrong in law in taking this view.

6. The learned Vakil for the respondents argued in supportof the decree of the Court below that, though the notice served in this casemight not have been shown to be sufficient under the law, the plaintiffs werenot bound to prove the service of any notice, want of notice not having beenpleaded in defence; and in support of this argument the cases of Davey v. Warne14 M. &. W. 199 Smith v. Pritchard 2 C. & K. 699 and certain otherEnglish cases, were relied upon. We are of opinion that this argument cannotsucceed, regard being had to the terms of Section 77 of the Railways Act and tothe provisions of Sections 147 and 149 of the Code of Civil Procedure, whichauthorize the Court to frame issues from certain materials besides thepleadings and to amend the issues at any stage of the case. The objection onthe ground of absence of notice, though not taken in the written statement, wasraised in argument, and the objection was entertained and disposed of, thougherroneously, by the Courts below. It cannot therefore be thrown out on theground that it was not specially pleaded.

7. But though we hold that the objection on the ground ofwant of notice cannot be thrown out altogether, we are of opinion that as itwas not taken in the written statement and was urged only in argument, theplaintiffs are entitled to have an opportunity of meeting it. In our opinion itwill be sufficiently met if it is shown that the notice served on the TrafficSuperintendent reached the Manager within six months from the date of deliveryof the goods.

8. The case must therefore go hack to the first Court, inorder that it may be disposed of after determination of the point indicatedabove. Both parties will be at liberty to adduce evidence upon the point. Costswill abide the result.

9. As the appeal is only on behalf of defendant No. 1, andthe ground upon which the appeal succeeds relates only to the liability ofdefendant No. 1, the decrees of the Courts below as against defendant No. 2will stand.

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Dip Chand Poddar and Ors.vs. The Secretary of State for India in Council (08.12.1896 - CALHC)