Jwala Prasad, J.

1. This is an application by the defendant (the East Indian Railway Company) under Section 25 of the Provincial Small Cause Court Act against a decree, dated the 12th of July, 1921, passed in favour of the plaintiff by the Subordinate Judge of Gaya in the exercise of his powers as a Small Cause Court Judge.

2. The plaintiff despatched from Howrah a consignment of 7 packages of red lead, soda and other miscellaneous articles to be delivered to him at Warsaliganj, a station on the South Bihar Railway. Four of these packages were delivered to the plaintiff and the remaining 3 were not. Consequently the suit out of which this application has arisen was instituted by the plaintiff on the 2nd of April, 1921, for recovery of price of the said articles as compensation for their non-delivery to the plaintiff.

3. The defendant resisted the claim of the plaintiff and pleaded;

(1) that the plaintiff's suit was barred by the terms of an agreement embodied in what is known as the Risk Note Form B (Appendix E of Railway Act IX of 1890) executed by the plaintiff;

(2) that there was no wilful neglect on the part of the railway administration or its servants or any theft of the goods in question by the servants of the Railway Company, on the other hand the goods in question were lost on account of robbery from the running train; and

(3) that the plaintiff's suit is barred by Section 77 of the Railway Act on account of any notice not having been served in due time upon the Railway administration or Company as is required by the said section.

4. All these objections have been overruled by the Court below and decided against the defendant. These grounds have been reiterated in this Court on behalf of the defendant and it is urged that the findings of the Court below on all these points are erroneous in law.

5. The Court below has found that the goods in question were lost not on account of a running train robbery, nor on account of any theft, but on account of the wilful neglect on the part of the defendant's servants." This is a finding of fact. It is however, urged that this finding is vitiated on account of the onus of proof having been wrongly laid upon the defendant, and not upon the plaintiff, as the Court below ought to have done in view of the Risk Note B executed by the plaintiff. This contention is wholly unjustificable, and the following passage from the judgment of the Court below is a complete answer to it: "I also do not doubt that having given Risk Note B the burden of proof was on the plaintiff to prove, wilful neglect of the Company's servants."

6. This rule is well established by a series of decisions. The Court, therefore, laid the onus upon the plaintiff to prove wilful neglect on the part of the defendant. Upon the evidence on behalf of the plaintiff the Court records the finding that "the wilful neglect of the defendant's servants is responsible for the non-deli- very of the articles." Upon the evidence offered on behalf of the defendant the Court has held that the defendant's servants were negligent in not putting " any lock to the door " of the wagon and thereby affording sufficient temptation to thefts by the Railway servants."

7. The evidence on behalf of the defendant has been fully considered in great detail by the Court below and, as a result of the consideration of the evidence of both sides the Court has held that there was no theft or running train robbery by strangers, but that the goods were lost on account of the wilful neglect on the part of the defendant's servants,

8. Upon this finding of the Court below the risk note in question is of no avail to the defendant. The defendant company cannot plead the Risk Note in question, as freeing the defendant from all responsibilities when the loss of the property in question is due to the wilful neglect of the Railway administration or theft or neglect of its servants, or as is expressly mentioned in the exception contained in the Risk Note. The proviso in the Risk Note does not apply, as the Court below has expressly held, that there was no robbery from the running train. We cannot in revision dispute the finding of fact of the Court below and the finding, of fact arrived at in this case disposes of the first two grounds.

9. To my mind the Risk Note in question has no application to the present case. The suit of the plaintiff is not on account of "any loss, destruction or deterioration of" or damage to " the consignment in question to which only the Risk Note in question applies. His suit is for compensation on account of non-delivery of the goods consigned to the Company which the defendant was bound to deliver to the plaintiff. Ever since the company failed to deliver the articles to the plain- tiff, he in all his letters to the various officers of the Railway administration, including the Agent of the East Indian Railway Company had been demanding the goods back or the price thereof.

10. The Company never replied to his letters saying that the goods were lost or destroyed. Rather the letter of the 2nd of February from the Claims Superintendent, Howrah therein he asked for the original Bijak from the plaintiff, shows that the Company's case never was that the goods was lost or destroyed. It is expressly stated in paragraphs 2 and 3 of the plaint that the plaintiff's case was based upon non-delivery of the goods.

11. It was for the first time alleged in the written statement that from enquiry the defendant had come to know that loss was due to robbery on the running train. The lower Court has disbelieved the plea set up by the defendant of the loss of the goods in the manner alleged by the Company and has expressly held that it was a case of non-delivery of the goods to the plaintiff by the Railway Company, Therefore the Risk Note in question does not apply to the case.

12. The last ground urged on behalf of the defendant is that the plaintiff's claim is barred by Section 76 of the Railway Act, for want of a proper notice in due time, to the Railway administration or the Company. On behalf of the plaintiff it is urged,

(1) that no notice was required to be served in this case upon the defendant under Section 76 of the Act, and

(2) that due notice was given to the defendant. I have fully considered the arguments on both sides and the law on the subject and I think that both the contentions of the plaintiff must prevail. Section 77 requires notice to be given only in case of a claim for "compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried." The Court below has found that the plaintiff's claim for compensation has been made on account of the "nondelivery" of the articles and not for the loss, "destruction or deterioration" of the same, and consequently the Court has held that Section 77 does not apply to the present case.

13. In the view of the Court below the distinction drawn by it between the claim for non-delivery and the claim for "loss destruction or deterioration" of property in charge of a carrier is a real one and finds support from the wordings in Sections 30 and 31 of the Indian Limitation Act. Section 30 refers to a claim against a carrier for compensation for losing or injuring goods, that is, for loss, destruction or deterioration of goods and Article 31 refers to a claim against a carrier for compensation for non-delivery or delay in delivering goods.

14. The view taken by the Court below is supported by the history of how Article 31 was for the first time introduced in the present Limitation Act of 1889 in order to cover the case of non-delivery as distinguished from a case of loss, destruction or deterioration of property in the hands of a career, such as, the Railway Company. There was a difference of opinion as to whether a case of non-delivery of goods would come under Articles 49, 115, or 30 of the Limitation Act.

15. Now, in the case of a claim for loss, destruction or deterioration to the property, the limitation would run from the date when the loss or injury occurred to the goods, and in the case of non-delivery from the time when the goods ought to have been delivered and were not delivered. This led to the difference of opinion that Article 30 would not apply to the case of non-delivery and possibly Article 49 or 115 should apply. There is again a cardinal difference between the "non-delivery" and the "loss, destruction or deterioration" of goods while in charge of a career, such as, the Railway Company.

16. In the former there is a deliberate withholding of the property from the person entitled to its delivery and in the latter the loss, destruction or deterioration takes place on account of certain extraneous causes. In the latter case, there is no deliberate withholding of the property though there may be wilful neglect in not taking proper care of the goods. Articles 30 and 31 apply to the Railway Company as carriers of goods and therefore the distinction recognized in those Articles applies to the goods made over to a Railway Company for transit.

17. Sections 72 to 77 of the Act apply to the case of "loss, destruction or deterioration" of goods made over to a Railway Company for transit. Their responsibility is that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act of 1872, as expressly laid down in Section 72 of the Railway Act. Clause (2) of the Section provides for an agreement whereby the aforesaid responsibility can w be limited Risks Notes in Forms A and B in Appendix E are in accordance with this clause (2). Section 77 requires a notice of the claim arising out of " loss, destruction or deterioration" of goods delivered to be carried by a Railway Company, to be given to the Railway administration within six months from the date of delivery of goods for carriage.

18. This is obviously with a view to enable the Railway administration to make an enquiry and investigation as to whether the loss, destruction or deterioration was due to the plaintiff's laches or due to the wilful neglect of the Company or its servants, or due to the theft or robbery committed by the servants of the Company. Unless notice of the loss, destruction or deterioration is given promptly, the enquiry would be prejudiced and therefore Section 77 prescribes that notice must be given within six months from the date of the delivery of the goods. But in a case of non-delivery such an enquiry will not be necessary. In this view also Section 77 has no application and the Company is not entitled to a notice in case of non-delivery.

19. The plaintiff expressly stated in the plaint that the defendant was not entitled to any notice inasmuch as the claim is for non-delivery of the goods. Still notice was given to the Agent of the Railway Company and also to the Traffic Manager "who settles all claims and to whom the Agents also refers claims for disposal," It will appear that in this case proper notice was given to the Railway Company. The goods was despatched on the 27th of April, 1920. On the 23rd of July, 1920, the plaintiff preferred his claim to the Divisional Traffic Manager, East Indian Railway Company, Howrah, giving the details of the packages which were not delivered to him, with the price of the same.

20. He did not receive any reply to that. He therefore wrote another letter, dated the 7th October, 1920, claiming the delivery of the property to him or its price, failing which, he said, he would be compelled to take assistance of the Court This also was not attended to. On the 3rd November headdresses another letter numbered 108, to the Agent of the East Indian Railway Company repeating the claim and intimating that in case of not getting redress from him, he would seek his remedy in Court.

21. In this letter he referred to the previous letters (Exhibits 2A and 2B addressed to the Divisional Traffic Manager, Howrah. This letter was received by the Agent on the 5th November. This also was not attended to. On the 14th December, 1920, the plaintiff sent a letter through his pleader addressed to the Agent of the East Indian Railway Company; and this letter bears an endorsement of the Agent to the effect "G. T. M. for disposal.

22. It does not appear how it was disposed of and the plaintiff appears to have written another letter No. 16 R. K., dated the 19th January, 1921, to which he received the following reply from the Claims Superintendent, East Indian Railway Company, dated the 2nd February, 1921: " Will you. please send me the original Beejak in this case under a registered cover for inspection and return" What happened thereafter does not appear, and the plaintiff then instituted the suit on the 2nd April, 1921.

23. The notice to the Agent is, no doubt, a few days beyond six months, but the notice to the Traffic Manager was promptly given, namely, within 2 months.

24. The plaintiff states in his plaint that notice was given to the Traffic Manager "who settles all claims and to whom the Agent also refers claims for disposal." On behalf of the plaintiff it is urged that this fact has been proved in this case, namely, that the Traffic Manager is the person who settles all claims and to whom the Agent refers claims for disposal, and consequently the notice given to him was sufficient. It appears that the plaintiff substantiated his case by evidence which evidence was neither challenged in cross examination nor was it rebutted by any substantive evidence on behalf of the defendant, in spite of a number of witnesses examined on behalf of the defendant.

25. On the other hand, upon the notice given by the plaintiff to the Agent on the 4th of December, 1920, the Agent endorses thereon the following order: " G. T. M. for disposal." This shows that the " G. T. M." had the full power to settle the claim of the plaintiff and materially corroborates the case of the plaintiff that the General Traffic Manager is the person to whom power has been assigned by the Agent. Therefore the plaintiff has proved in the present case that there was an assignment of the power of settling claims to the General Traffic Manager and the notice given to him was therefore proper.

26. Section 77 requires a notice to be given to Railway administration. " Railway administration" as defined by Section 3 (6) means the "Railway Company" in case of a Railway administration by Railway Company such as the East Indian Railway Company. A notice to be served upon the Railway administration may be served upon the Agent of the Railway Company, There are authorities to show that when an assignment is proved, notice to the General Traffic Manager is sufficient; vide M. Seshachallam Chetty v. Traffic Manager, His Highness the Nizam's. Guaranteed State Railway Company, Limited, (1913)36 Mad. 65 = 10 M. L. T 236 = 12 I. C. 76= (1911) 2 M. W. N. 195, Madras and Southern Maharatha Railway Company Limited v. Bhimappa  (1912) 23 M. L. J. 511 = 17 I. C. 419, Radha Sham Basak v. Secretary of State (1915) 44 Cal. 16 = 34 I. C. 130=20 C. W.N. 790, V. Woods, Agent to the Assam-Bengal Railway Company v. Mehar Ali Bepari (1908) 13 C. W. N. 24=3 I. C. 479=4 M L. T. 427, Secretary of State v. Dip Chand Puddar (1897) 24 Cal 306, vide also the recent decision of a Full Bench of the Madras High Court in Mahadeva Aiyar v. South Indian Railway Company Limited. A.I.R. 1922 Mad. 362 =45 Mad. 135 (F. B.).

27. Therefore if any notice was necessary I think, in the present case upon the evidence, the notice to the General Traffic Manager was sufficient. The Full Bench of the Madras High Court in the case referred to above discussed all the cases on the point and held that it was open to the plaintiff to show that by its rules or course of conduct the Railway Company held out to the public that notices might be given to an officer, such as, the District Traffic Superintendent, instead of to the Agent

28. Lastly, although no notice according to law is necessary, the plaintiff in the present case had given ample notice not only to General Traffic Manager but also to the Agent of the East Indian Railway Company as already detailed in the earlier part of this judgment. I, therefore, agree with the view of the Court below that Section 77 does not bar the plaintiffs obtaining a relief against the Railway Company in respect of the non-delivery of the goods in question.

29. In the circumstances of the case, on account of the inexplicable conduct of the servants of the Railway Company and on account of their not attending to any of the requests of the plaintiff, it is obvious that the plaintiff's case was in the main true as it has been found by the Court below. In the circumstances of the case justice lies on the side of the plaintiff and this Court will not exercise the discretionary power under Section 25 of the Small Cause Court Act unless any injustice is done by the Court below. When justice is on the side of the plaintiff, this Court will be slow to interfere on a technical point like notice being short by a few days, even if there were any substance in that contention. The words of his Lordship Farran, C. J., in the case of the Poona City Municipality v. Raghunath Ramji (1897) 21 Bom. 250. may fitly be appropriated to the present cases.

30. In the second place, the defendants have no merits on their side. According "to the finding of the Small Cause Court, which has not been challenged, and which there is no reason to distrust, the goods imported into Poona in this case have actually become the property of Government, and the plaintiff is on the merits entitled to the refund which he has obtained, though from the certificate alone he may not be able to prove his right, and he has not taken the precautions which entitle exporters under Rules 14 to 17, inclusive, to a re. fund." In Agent and Manager of the South Indian Railway Company v. Vengu Pattar (1911) 11 M. L. T. 380=12. I. C. 169. his Lordship Mr. Justice Phillips declined to set aside a decision of the Small Cause Court under the Act upon the ground that there, was no merit in the plaintiff's case. To do that, his Lordships said, would be to do injustice in the case.

31. In terms of the aforesaid decision I dismiss the rule with costs. Hearing fee one gold mohur.