Kulwant Sahay, J.This is an appeal by the plaintiff whose suit for compensation for non-delivery of one bale of cloth out of a consignment of ten bales has been dismissed by the learned District Judge of Darbhanga on the ground of want of notice u/s 77, Railways Act.

2. The facts of the case are set out in our order of 8th June last. By that order we directed that the record be sent down to the District Judge for a finding whether the defendant company had been able to prove loss of the goods. The learned District Judge has taken evidence and has submitted his finding to the effect that the Bail way Company has failed to-prove the loss. The question now is whether on this finding the plaintiff is entitled to succeed.

3. The learned Munsif gave the plaintiff a modified decree but the learned District. Judge dismissed the suit on the ground of notice and it is conceded on both sides-that if the plaintiff succeeds on the point of notice, then he is entitled to succeed in wife suit and there will be no necessity, of a remand to the District Judge.

4. It is contended on behalf of the Bail-way Company that u/s 77, Railways Act, notice is necessary even in the case of non-delivery and the word "loss" in Section 77 includes non-delivery. The learned advocate for the Railway Company concedes that there has been a consensus of: rulings of this Court to the effect that, the word "loss" in the Risk-Note Form B does not include non-delivery. But ha contends that the significance of the word "loss" in Section 77 of the Act is different from that in the Risk-Note Form B; that the word "loss" in Section 77 has a wider-significance and includes non-delivery. The question was considered by this Court in G.I.P. Ry. Co. Vs. Gopi Ram Gouri Sankar, , and it was held that non-delivery does not constitute loss, within the meaning of Section 77, Railways. Act, and that, therefore, no notice under-that section was necessary in a suit for-damages for non-delivery of a part of a-consignment, though it may turn out that the suit may fail for want of notice if it be established by the Railway Company that it is in fact a case of loss.

5. This case is directly in point and if this., case is followed, it is clear that it was not necessary for the plaintiff to give a notice, to the G.I.P. By. Co. in the present case. It is, however, contended that this decision is contrary to a previous decision of this Court in Agent, B.N. By. Co. Ltd. v. Hamir Mull Ghagan Mull AIR 1928 Pat. 727, There is no doubt a conflict of decision in these two cases. The question whether the word "loss" in the Risk-Note Form B-included non-delivery was decided by Mullick and Bucknill, JJ., in The Great Indian Peninsular Railway Company Vs. Jitan Ram Nirmal Ram, where it was held that the loss referred to in the contract was loss to the owner and, therefore, that delivery to a person other than the consignee was such a loss as was contemplated by the contract. After the decision of that case it was held in several cases that the word "loss" included non-delivery.

6. The question was, however, referred to a Full Bench of this Court in Puran Das Vs. East Indian Railway Co., . This question was not decided by the Full Bench, but certain observations were made in course of the judgment which -went to show that the learned Judges were of opinion that the word "loss" did not include non-delivery in the Risk-Note Form B. After the decision of the Full Bench in Puran Das Vs. East Indian Railway Co., several learned Judges of this Court have consistently taken the view that the word "loss" does not include non-delivery. In Nagendra Nath Sen Vs. B. and N.W. Ry. Co. and Another, , Shamshul Huq w. E.I. Ry. Co. [1928] 9 P.L.T. 611 and in Tarachand Marwari Vs. Bengal Nagpur Railway Co. and Others, , the question was raised in connexion with Risk-Notes and it was held by three Division Benches of this Court that the word "loss" did not include non-delivery. Then came the case of G.I.P. Ry. Co. Vs. Gopi Ram Gouri Sankar, , in which the question was directly raised with reference to Section 77, Railways Act, and Ross, J., considered most of the decisions an the point and came to the finding that the word "loss" did not include non-delivery even in Section 77, Railways Act. It now seems to be settled, so far as this Court is concerned that the word "loss" does not include non-delivery so far as the risk-,note is concerned; and as regards the use ,of the same word "loss" in Section 77, Railways Act, there is no reason why a different interpretation should be placed upon it from that placed upon the same word in the risk-note in Form B. I am, therefore, of opinion that so far as this Court is concerned it is now settled that in the case of damage claimed for non-delivery {of a consignment no notice is necessary u/s 77, Railways Act. Having regard to the consensus of opinion of seven Judges of this Court it does not appear necessary to refer the question to a Full Bench.

7. The result is that the decision of the learned District Judge will be set aside and that of the Munsif restored partially with costs. The B. and N.W. Ry. Co. was also impleaded as respondent in this appeal but the appeal is not pressed against that company and it will be dismissed as against that company with costs so far as this Court is concerned. The appeal will be decreed as against the G.I.P. Ry. Co. and the decree will be limited to Rs. 909-6-0 the amount at which this appeal has been valued with proportionate costs as against the G.I.P. Ry. Co., in all Courts.

Macpherson, J.

I agree.