B.K. Mullick, J.

1. On the 14th August 1918 the plaintiffs Messrs. Harasmal Mamraj Marwari who were holders of three railway receipts for goods despatched from Victoria-Terminus, Bombay, to Bhagalpur, addressed to the Agent of the East Indian Railway a letter the material portion of which ran as follows :

We have the honour to inform you that the goods caused (sic) by these consignments noted above have not yet reached Bhagalpur on account of which we are suffering great loss; we therefore request the favour of your kindly inquiring into the matter and arranging for delivery of the consignment at an early date failing which we shall be compelled to take such other steps for the realisation of the value of the aforesaid consignment as we may be advised to do.

2. The letter was addressed to the Agent, East Indian Railway, Howrah but seems to have been opened and acknowledged by the General Traffic Manager of the East Indian Railway at that place. This last named officer then sent the letter to the Divisional Traffic Manager who after carrying on a correspondence with the plaintiffs for some tune regarding the loss of the consignments finally wrote to him on the 18th November 1918 in the following terms :-

I much regret the loss you have sustained in the case but cannot admit any liability as the consignment was robbed from a running train to which no clue has been obtained and risk note H held protects us.

3. Thereupon on the 23rd April 1919 the plaintiffs instituted the suit out of which the present appeal arises claiming Rs. 2165-10-0 as damages from the Great Indian Peninsula Railway the first party defendants, the East Indian-Railway Company 2nd party defendants and the Bengal Nagpur Railway 3rd party defendants. The trial Court dismissed the suit on two grounds: (1) that the notice required by S. 77 of the Indian-Railways Act had not been served upon the Railway Administration (sic) the manner required by S. 140 (sic) Act, and (2) that the notice itse(sic) (sic) valid and ineffective inasm(sic) (sic)omitted to mention either (sic) of the claim or to notify to the defendant No. 2 his intention to bring a suit.

4. The plaintiffs then appealed to the District Judge, and on the 18th May 1921 filed a petition for the examination of additional witnesses for the purpose of proving that the notice had in fact reached the Agent of the East Indian Railway; but at the hearing of the appeal the pleader for this respondent stated that he would argue the case upon the assumption that the notice was duly served upon the Agent although he did not admit that it was so served. In the result the learned Judge held that apart from the defect in service the suit was not maintainable as the notice did not specify the amount of compensation demanded and he dismissed the appeal.

5. The present second appeal is preferred by the plaintiffs, and the points upon which our decision is required, are, whether the notice to the East Indian Railway was valid and whether it was served according to law.

6. Now, with regard to the first point it is quite clear that the Courts below have taken a too narrow view of S. 77 of the Indian-Railways Act (Act IX of 1890). That section declares that no person shall be entitled to compensation for the loss, destruction or deterioration of goods unless his claim to the compensation has been preferred in writing within six months from the date of the delivery of the goods for carriage by railway. The section merely requires that a demand for compensation shall be made and nowhere prescribes that the money value of the claim shall be stated.

7. It was next urged that the notice is bad because it does not intimate that the claimant intends to sue. The reply to this is that S. 77 does not require the claimant to notify that he intends to bring an action. It merely requires that a claim to compensation should be preferred. It might have been otherwise if the statute had expressly required that notice of action shall be given as in Mason v. Birkenhead [l860] 6 H. & N. 72 - 29 L.J., Ex. 407 - 2 L.T. 632 - 158 E. R. 30 - 123 R.R. 392 and Norris v. Smith [1839] 113 E.R. 72 - 2 P. & D. 353 - 10 A. & R. 188 - 8 L J. (n. s.) Q. B. 274 - 50 R. R. 374 and in certain classes of suits referred to in the Civil Procedure Code and the Bengal Wards Act. Therefore in the absence of any authority I must find that the Courts below have taken a too narrow view of the section and that the notice was a claim for compensation within the meaning of S. 77.

8. The next question is whether the notice was served. This point has not been determined by the lower appellate Court, but as an application was made before him by the plaintiffs for permission to call additional evidence to prove service I think we should state what our view of the law is. The evidence shows that the office of the Agent of the East Indian Railway is not at Howrah but at the Fairlie Place, Calcutta. The Subordinate Judge has found that there has been no compliance with clause (c) of S. 140 of the Act and the learned District Judge must come to a decision on this point. If he agrees with the Subordinate Judge, then the question will arise whether notwithstanding his failure to comply with clause (c) the plaintiffs are entitled to prove that the notice was in fact delivered to the Agent and that there was service under clause (a) Now I think the answer to that question is in the affirmative and that the plaintiffs are entitled to prove that the notice has actually been delivered either by themselves or their agent or by some other person. In my opinion E. I. Ry. Co. v. Ajodhya Prasad [1919] 19 I.C. 498 does not conflict with this view. In that case the notice was addressed to the Traffic Manager and it was held that that was not a notice to the Agent. It is true that the learned Judges dissented from Woods v. Maker Ali Bepari [1908] 23 C.W.N. 24 - 4 M.L.T. 427 - 3 I.C. 479 but it does not seem to me that it was necessary for the purpose of deciding the question before them to consider the question whether actual delivery to the Agent of a wrongly addressed notice would constitute service within the meaning of S. 140. Prima facie the plaintiff had good ground for thinking that the notice had been delivered to the Agent, for the General Traffic Manager had not only acknowledged receipt of it but also directed an inquiry to be held and in the circumstances it is somewhat difficult to understand the plea of non-service now taken. I think therefore that it was open to the plaintiffs to give evidence in the trial Court that the notice was in fact delivered to the Agent; but the question arises whether their omission to give that evidence in the trial Court can be cured in the appellate Court. If the District Judge finds that sufficient cause has been shown then he will admit the evidence under Order 41 rule 27 of the Civil Procedure Code and in this connection it will be useful to invite the learned Judge's attention to the recent decision of their Lordships of the Privy Council in Indrajit Pratap Bahadur Sahi v. Amar Singh 1923 P.C. 128 - 2 Pat. 676 - 50 I.A 183- 21 A.L.J. 554 - 25 Bom. L.R. 1259 - 45 M.L.J. 578 - 18 M.L.W. 728 - 4 P.L.T. 447 - 33 M.L.T. 233 - I. Pat. L.R. 345- L.R. 4 (P.C.) 123 - 74 I.C 747 (P.C.)

9. The result therefore is that the decree of the learned District Judge is set aside and the appeal is remanded to him for re-hearing in accordance with law. Costs to abide the result.

John Bucknill, J.

10. I agree