Atkinson, J.

1. The plaintiff sued the East Indian Railway Company to recover damages for the loss of two tins of ghee. The ghee was consigned from Coconada on the 26th of December 1916, and admittedly the two tins formed part of a large consignment of twenty-six tins in all. Although the ghee consigned passed over the lines of several Railway Companies: admittedly the East Indian Railway Company received the fall consignment of twenty-six tins for delivery to the plaintiff. Twenty-four tins of the total consignment were delivered to the plaintiff as consignee on the 13th January 1917. Two tins were lost. The plaintiff embarked upon a correspondence with the Railway Company through some of its subordinate officials with reference to the loss of the two tins of ghee. This correspondence continued from the month of April to the month of July 1917. At no time prior to 13th November 1917 did the plaintiff give notice direct to the Manager or Agent of the East Indian Railway Company, of the admitted loss of 2 tins of ghee, or make any claim in respect thereof to him.

2. Two points are taken on behalf of the Company before us.

3. The learned Munsif overruled the preliminary objection urged on behalf of the Company, namely that, inasmuch as notice under section 77 of the Indian Railways Act, 1890, had not been served in accordance with the requirements of the Act, therefore, this action was not maintainable. The learned Munsif who tried the case overruled that contention; relying upon a decision reported as Woods v. Meher Ali Bepari  3 Ind. Cas. 479 : 13 C.W.N. 24 : 4 M.L.T. 427 and held that although notice under section 77 admittedly had not been served within the period prescribed by the Statute, nevertheless by some indirect means it might be inferred that the Manager or Agent of the Company through the District Traffic Manager, had notice of the plaintiff's claim.

4. With reference to the second argument addressed to us as to the liability of the Company on foot of the contract made by the receiving Company with the consignor for the carriage of goods consigned the learned Munsif appears, although the point was argued before him, to have ignored entirely this matter in his judgment; and certainly the question urged was one which the Munsif should have considered and decided before imposing liability upon the Company. However I shall deal with this aspect of the case later.

5. If in fact notice was not served in the manner prescribed by section 77 of the Indian Railways Act this action would not be maintainable. There is a consistent line of authority in favour of that view. What are the requirements of section 77 Section 77 provides: that a person shall not be entitled to a refund or to compensation for loss, destruction or deterioration of animals or goods delivered to be carried unless his claim to a refund or compensation has been preferred in writing by him or on his behalf to the Railway administration within six months from the date of the delivery of animals or goods consigned for carriage by the Railway Company. Section 140 prescribes the method and manner in which the notice under section 77 is to be served and the person on whom it is to be served. The person on whom the notice is to be served is the Agent or Manager of the Company. The notice is to be served on either of these persons and no one else. The manner of serving the notice may be either by personal delivery or by registered post either of which courses are optional at the election of the party serving such notice.

6. It is conceded in this case that the notice required by section 77 was not served antecedent to the 13th November 1917; and no stronger proof of that fact could be adduced than the very letter which was written on behalf of the plaintiff by his solicitors to the East Indian Railway Company addressed to the Agent bearing the date of the 13th November 1917. That letter is headed with the words "Notice under section 77 of the Railways Act", and in the body of that letter the following passage occurs; "I have been requested by my client aforesaid to give notice under section 77 of the Railways Act of 1890 claiming Rs. 53 as the price of two tins of ghee and the price of the tins themselves, besides Rs. 98.0 interest on the aforesaid Rs. 53 at the rate of Rs. 2, Total Rs. 62."

7. That letter was written on behalf of the plaintiffs: but at no prior time can it be suggested that there was any claim whatsoever made upon or addressed to the Manager or Agent of the East Indian Railway Company with reference to the plaintiff's claim for compensation for the loss of the two tins of ghee. It is admitted that the District Traffic Manager of the East Indian Railway Company did receive a letter with reference to the plaintiff's claim, dated the 25th of April 1917. But such communication addressed to the District Traffic Manager is not a notice in accordance with the requirements of section 77 read with section 140 of the Indian Railways Act, 1890. The notice, to be a valid notice, must be served upon the Agent or Manager of the Company, and not upon a subordinate official of the Railway-Company and the service of this notice upon the Agent or Manager is a condition precedent to the right to sue; and the same must be served within six months from the date when the claim or the cause of action accrued.

8. Now the notice that was served for the purpose of complying with the requirements of section 77 was served on the 13th of November 1917, much more than six months after the cause of action arose. There is a consistent line of authority in Calcutta in favour of the opinion we hold and the construction which we put upon section 77 and section 140 of the Indian Railways Act. The cases are the following: East Indian Railway Co. v. Madhu Lal 19 Ind. Cas. 673 : 17 C.W.N. 1134 : 18 C.L.J. 147, Radha Kissen Chooni Lal v. East Indian Railway Co.,  21 Ind. Cas. 970 : 19 C.W.N. 62, East Indian Railway Co. v. Ramgati Ram 23 Ind. Cas. 142 : 19 C.L. J. 180. East Indian Railway Co. v. Ram Autar 38 Ind. Cas. 502 : 20 C.W.N. 696, Janki Das v. Bengal Nagpur Railway Co.  13 Ind. Cas. 503 : 16 C.W.N. 356 : 15 C.L.J. 211 (7) 35 C. 194 : 12 C.W.N. 450, Nadiar Chand Shaha v. Wood 35 C. 194 : 12 C.W.N. 450 and Secretary of State v. Dip Chand Poddar  24 C. 906 : 12 Ind. Dec. (N.S.) 871. The learned Vakil appearing on behalf of the plaintiff relies upon the case cited as Woods v. Meher Ali Bepari  3 Ind. Cas. 479 : 13 C.W.N. 24 : 4 M.L.T. 427 in support of his contention, that you may in fast serve with notice a subordinate official of the Railway Company, from which fact it may be inferred that such notice might or may have reached the Agent or Manager of the Railway Company. We do not think that this decision is in accord with the whole trend of modern authority in the Calcutta High Court, and it seems to us to be inconsistent with the express and mandatory provisions of the Act itself. "The Act has defined and determined how the rights of the parties damnified are to be exercised and controlled and the declaration of the Legislature as embodied in the Act is the determining factor: and it is not open to any Court to disregard or relax the provisions of an enactment if they are express and clear and otherwise free from ambiguity and doubt, with reference to the enforcement of rights against public Companies and Corporations. It is a common thing indeed in England for Acts of Parliament to provide that actions against Companies or other corporate bodies shall only be instituted after a statutory, notice of claim has been given to the corporate body against whom any form of relief is claimed; and the service of such a notice is a condition precedent to the maintainability of any action or suit against such Company or Corporation.

9. Therefore in the view we have taken we think that the learned Munsif was wrong in holding that notice had been sufficiently served in accordance with or in such a manner as to satisfy the requirements of section 77 of the Indian Railways Act, 1890, and that the plaintiff's suit was maintainable. We are of opinion that the action instituted by the plaintiff was not maintainable by reason of the non service of the notice in the manner and within the time required by section 77 of the Railways Act.

10. However there is a farther ground dealt with by the learned Munsif in his judgment which was entirely wrong in the conclusion at which he arrived.

11. The plaintiff or his agent who consigned the 26 tins of ghee to him at Coconada, thought fit to book the consignment on what is known as the risk-note form B. There is no question that risk-note form B satisfied for the purposes of its validity all the requirements of the Indian Railways Act as enacted in section 72. The form received the assent of the Governor-General in Council; and complies in every detail with the statutory form embodied in the Act itself. The object of this form of consignment note is to enable goods to be consigned at a lower rate than the ordinary rate of freight charged, on condition that the owner, consignor or consignee as the case may be will accept all liability for risk, loss or damage of the goods so consigned. The material part of the risk-note in question is that it exempts the Company from all liability for loss, damage, deterioration or otherwise for the goods carried under such terms by them. An exception to the consignor's or consignees' liability is provided for; and this case comes within the terms of the exception. The exception provides for the liability of the Company for the loss of a complete consignment or of one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway administration or to the theft by or wilful neglect of its servants, transport agents or carriers employed by them.

12. The two tins of ghee that were lost were two complete packages forming part of a complete consignment; and in order to impose liability on the Railway Company the onus is upon the plaintiff to prove that the loss if the packages in question was due to the wilful neglect of the Railway administration or to the theft by or wilful neglect of its servants. The learned Munsif has not adequately considered the legal effect of this contract made between the parties; because he holds that the onus is upon the defendant Company to bring themselves within or without the terms of the exception. We entertain a wholly different view. The onus is upon the plaintiff who has elected to make his own contract according to his own choice and for his own benefit, to prove that if damage has been caused to him by the loss of goods consigned by him to the Company that the damage ensued within the provisions of the exception. The on as is cast upon the plaintiff, and not upon the defendant, to prove that the loss arose by reason of the wilful neglect of the Company or its servants. The only reason the learned Munsif gives for holding that the sons is upon the defendant, is because the defendants plead the exception in exoneration of liability in their written statement. Clearly the mere fact that in the written statement the exception provided and embodied in the contract, is pleaded in exoneration of liability is no ground for holding that the onus is cast upon the Company to establish by proof facts which would negative their liability within the terms of the exception. It would be impossible to hold that the onus was on the defendants. The onus is on the plaintiff. Therefore for this reason also the judgment of the learned Munsif is erroneous; and inasmuch as no evidence of wilful neglect by the Company or its servants has been given or adduced by the plaintiff, facts have not been established to justify imposing any liability upon the East Indian Railway Company for the loss of the two tins of ghee in suit.

13. However, as we have held that notice was not served, which is a condition precedent to the plaintiff's right to sue, in accordance with section 77 of the Indian Railways Act, 1890, this action is not maintainable. The judgment of the learned Munsif is set aside and the action will be dismissed. However, we venture to commend to the consideration of the East Indian Railway Company, who are always very generous towards persons who have suffered loss through any misfortune either on their part or otherwise, the claim of the plaintiff for some monetary compensation for the loss he has admittedly sustained. Under the circumstances of the case we are not prepared to award costs to the defendant Company, and we think that both sides should bear their own costs.

Manuk, J.

14. I agree. It is only necessary for me to add a few words on my own behalf. The terms of section 77 read with section 140 are to my mind so explicit and imperative as to leave no doubt that the only person on whom notice can properly be served for a suit of this nature is the Agent of the Company. The terms of section 140 are also so explicit that there can equally be no doubt as to the manner in which that notice must be served. There is, therefore, no room for a theory of substituted notice which forms the basis of the decision in Woods v. Maker Alt Bepari  3 Ind. Cas. 479 : 13 C.W.N. 24 : 4 M.L.T. 427. That decision moreover, was expressly dissented from in Radha Kissen Chooni Lal v. East Indian Railway Co.,  21 Ind. Cas. 970 : 19 C.W.N. 62 and is of very doubtful authority.