P L D 1962 (W (PLP)

(2) that the responsibility of the Railway Administration for the loss of the goods delivered to the Administration to be carried by Railway is that of a bailee under sections 151, 152 and 161 of the Contract Act, 1872 and the Railway having discharged its liability was not liable to any damages. I propose to dispose of these contentions separately.

5. In this case notice under section 77 of the Railways Act was given to the Divisional Superintendent, N. W. R., Karachi on the 31st October, 1955. The question is whether the notice satisfies the requirement of section 77 of the Railways Act. Section 77 provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim for compensation has been preferred in writing to the Railway Administration within six months from the date of the delivery. In order to find out the meaning of the phrase "Railway Administration" we must turn to section 3, subsection (6) of the Act which lays down that the expression "Railway Administration" in the case of a Railway administered by Government (and we are here dealing with the case of the North‑Western Railway which is administered by Government) means the Manager of the Railway and includes the Government. To satisfy the requirements of section 77 the claimant must therefore prove that he has preferred his claim either to the Manager (now called the General Manager) of the Railway or to the Government.

6. It is common ground that the claim for compensation in the case before us was submitted within the prescribed time not to the General Manager or to the Government but to the Divisional Superintendent, North‑Western Railway, Karachi. Prima facie this is not what is required by section 77 of the Railways Act. The question however is whether in the circumstances of the present case the submission of the claim to the Divisional Super intendent, Karachi is tantamount to its submission to the General Manager, N.‑W. Railway. In this connection reliance has been placed on the letter dated the 26th April, 1956, by the General Manager, N.‑W. R., Lahore to the advocate of the respon dent in response to his notice to settle the claim. It would be useful to reproduce the contents of the letter. It runs as under : ‑ "As the Divisional Superintendent, North‑Western Railway, Karachi is competent to deal with the matter the letter quoted above has been forwarded to him for disposal and reply to you direct. Will you please communicate further with him on the subject." The object of the Legislature in enacting section 77 was to protect railways from unnecessary litigation and to afford them an opportunity to investigate the claims of the public within a reasonable time, and to satisfy them if they are found to be valid. The law laid down by that section accordingly requires a claimant to prefer within six months his claim to the person who has the authority to settle it. That person is ordinarily the General Manager, but the General Manager has many duties to perform and cannot personally attend to all of them. He has to delegate some of his functions to officers subordinate to him. In this case it would appear from the letter of the General Manager dated the 26th of April, 1956, that he had delegated his power to the Divisional Superintendent, North‑Western Railway, Karachi. The doctrine is well recognised that whatever a person has power to do himself he may do by means of an agent (Cut facit per allum Tacit per se). I would therefore hold that the notice to the Divi sional Superintendent was a valid notice within the meaning of section 77 of the Railways Act.

7. Mr. Mirza, the learned advocate for the appellant conten ded that under section 140 of the Railways Act any notice or other document required or authorised by this Act to be served on the Railway Administration may be served on the Manager by delivering the notice or other document to the Manager or by leaving it at his office, or by forwarding it by post in a prepaid letter addressed to the Manager. Mr. Mirza, relying on section 140 has contended that section 77 read with section 140 of the Railways Act made it incumbent upon the plaintiff‑respondent to serve the notice of the Manager, namely, on the General Manager. There is not much force in this contention. The word `may' in section 140 cannot be interpreted as the equivalent of `must'. In this connection reliance may be placed on a Full Bench decision of the Lahore High Court in the case of Devi Ditta Mal v. Secretary of State (A I R 1926 Lah. 255). It was held in that case that the word `may' in section 140 cannot be interpreted as the equivalent of must. It was further held in that case that when an Agent of the railway has directed the public to serve notice of claims, not on him but on his Traffic Manager, and notice has been served on that Traffic Manager that service constitutes a service on the Agent and is a sufficient compliance with the provisions of section 77 of the Indian Railways Act.

8. The case of Chaturbhuj Ram Lal v. Secretary of State (A I R 1927 All. 215) would support the contention of the plaintiff‑respondent. It was held in that case that on receipt of a claim which should by section 140 be addressed to the Agent, the Chief Commercial Manager has a choice of two alternatives, he can decline to deal with it on the ground that it has not been addressed to the Agent, and in the ordinary course his duty is to return it to the sender with a request that it shall be addressed in accordance with the Statute to the proper person. If he does not do so but retains it and either hands it to the Agent, or deals with it himself he must be taken to do so as the subordinate and agent of the Agent. and on the strength of the old maxim that "everything is presumed to be done correctly," it must be presumed that if he does so he does it with the implied consent and therefore with the authority of the Agent ; and therefore, where the conduct of that kind is established, the ordinary inference may be drawn and shown be drawn, and by the conduct of the Chief Commercial Manager, acting under the authority of the Agent, the Railway Administra tion have in fact waived compliance with the statutory require ment with regard to the person to whom the prepaid letter should be addressed. It is an admitted position in this cage that the Divisional Superintendent had acknowledged the notice of the respondent and was investigating the claim. On the principle laid down in the Allahabad case I would hold that the Divisional Superintendent was acting as an agent of the General Manager.

9. In the case of A. Mahadeva Ayyaar v. The South Indian Railway Co. (I L R 45 Mad. 135) a Full Bench of that Court held that it would be sufficient compliance of section 77 of the Indian Railways Act if the notice was served upon the agent or Manager of the Railway or upon any officer deputed by the agent or manager to receive such notice.

10. Mr. Mirza, the learned advocate for the appellant, relied on a number of cases in which it has been held that the notice must be served upon the Manager in compliance with section 77 of the Railways Act. He relied on the case of the Agent, G. I. P. Railway Company, Bombay v. Dewasi Versee and other (I L R 31 Bom. 534). This case has no application as no notice under section 77 was served upon any railway authority. In the case of the Agent, East India Railway Company v. Ajodhya Prasad and another (49 I C 498), it was held that notice to the District Traffic Manager was not a notice within the meaning of section 77 of the Railways Act. Similarly in Union of India v. Indumati Saha (A I R 1951 Cal. 512), it was held that notice on the Chief Commercial Manager was not sufficient within the meaning of section

77. These two cases however do not consider whether the District Traffic Manager or the Chief Commercial Manager had authority on behalf of the Manager to accept notice.

11. In the case of Surendra Nath v. The Governor General in India‑in‑Council (A I R 1952 Cal. 341) a single Judge held the word "may" in section 140 to mean as "must". I would respectfully adopt the view of the Full Bench of the Lahore High Court in A I R 1926 Lahore referred to above.

12. There is considerable divergence of judicial opinion on the question whether a claim must always be preferred to the General Manager or it would be sufficient compliance of section 77 if it is served on someone who has authority to receive notice on behalf of the General Manager. I would hold relying on the principle that whatever a person has power to do himself he may do .by means of an agent, that where the General Manager were to delegate his power to a person to receive notice on his behalf it would be sufficient compliance of section 77 if notice is served upon the person delegated to receive notice.

13. Mr. Mirza next contended that the Railway having taken due care in respect of the goods consigned to it as a bailee and the plaintiff‑respondent having failed to prove want of due diligence or negligence on the part of the Railway, was not entitled to any compensation. In support of his contention he relied on the case of Dwarka Nath Pai Mohan Chaudhuri and another v. Rivers Navigation Co. Ltd. (A I R 1917 P C 173). It was held in that case that where goods have been consigned to carrier and burnt and the question whether the carrier took due care in respect thereof as a bailee ought to, the burden of proving the want of due diligence, or (expressing it otherwise) the negligence of the servants of the carrier is on the consignee. It may be for the carrier to la the materials before the Court; but it remains for the consignee to satisfy the Court that the true inference from these materials is that the carrier's servants have not shown due care, skill and nerve. The contention in short of the learned advocate for the appellant was that the plaintiff‑respondent bad failed to prove that the loss was caused by the negligence or default by any act or omission on the part of the Railway.

14. The important evidence on behalf of the Railway is that of the train examiner Kotri, Mr. Imtiaz Ahmad. On the 12th October 1955, He was on duty. He examined the train carrying the wagon in question It would appear according to his state ment that there v, a; no hole in the floor of the wagon at the time when he examined the wagon. It is true there may not have been any hole in the wagon because Kotri is at a very short distance from Hyderabadi. The distance is only about 5 miles. There were 71 wagons including the wagon in question in the goods train which Mr. Imtiaz Ahmad examined. It is obvious that he could not have so minutely examined the bottom of the wagon so as to discover that it was touching the wheels. The springs of the wagon being weak, the floor of the wagon came in contact with the wheel‑s of the wagon. The friction between the wheel and the floor created such intense heat that a portion of the wagon plate was burnt off. After the hole was made in the floor of the wagon the cotton bales came in contract with the wheel and through friction heat was generated which resulted in the fire. It is noteworthy that the guard of the train did not notice the mole coming out from the wagon. It would appear from the statement of Salamat Ali, watchman that when after sunset the train arrived at Drigh Road and an up‑train passed on its way to Hyderabad its engine gave danger whisles. Salamatali stated that he and the guard looked out. They saw some smoke coming out from a wagon of their train and it was only then that the guard applied the vacuum. The evidence of Salamat Ali would show that the guard and the watchman were negligent in their duty. Had they been observant and looked out they would have noticed the smoke long before. Similarly, as I have already observed, if the train examiner at Kotri had minutely observed he would have also noticed the floor of the wagon touching the wheel because of the weak springs, and the incident would have been averted. Moreover, it would appear from the report of Mr. Joseph Lobo that there was already a hole in the wagon which has been riveted by the Railway Authorities. This should have led the Railway authorities to be more careful. They should not have allowed 100 bales, which is almost the full capacity according to Mr. Lobo which is not challenged by the Railway, to have been loaded in this wagon. This load, it would appear, was too much for the weak springs of the wagon. I would, in these circumstances, hold that the Railway did not take due care as a bailee.

15. Mr. Patel for the respondent pressed his cross objection under Order XLI, Rule 22, C. P. C. and contended that the whole of the claim should have been decreed. He relied on the state ment of Mr. Joseph Lobo in support of his contention that the plaintiff was entitled to Rs. 20,662‑8‑0 as damages.

16. On the other hand reliance is placed by Mr. Mirza, the learned advocate for the appellant, on the statement of Mr. Moby. The short question therefore is whether the report of Mr. Joseph Lobo should be given preference to that of Mr. Rigby. I have come to the conclusion that the report of Mr. Rigby is more trustworthy. Mr. Joseph Lobo, in the first place, surveyed the goods on behalf of the Insurance Company. The Insurance Company would be interested to have the damage assessed to its maximum. On the other hand, Mr. Rigby surveyed the goods on behalf of the Chamber of Commerce. The Chamber of Commerce was a disinterested party. If at all, the Chamber of Commerce would be interested in its own members. The Divisional Superintendent had written to the Chamber of Commerce to have the goods assessed. Mr. Rigby assessed the goods at the instance of the Chamber of Commerce. In the cross‑examination of Mr. Rigby it is not suggested that he was in any way partial to the railway. The most important fact however which has led me to give preference to the statement of Mr. Rigby to that of Mr. Lobo is that Mr. Lobo in his report dated 24th October 1955 did not assess the damage to the bales separately. The relevant portion of the report reads as under :‑ "We have assessed the loss on an average weight basis for the whole lot rather than separate the badly damaged from the less damaged bales. In doing this we have allowed for all re‑pressing expenses for e.g. . . . . . . In our opinion therefore an allowance of 2 maunds 15 seers per bale would adequately compensate the insured. The market price imme diately after the fire was Rs. 87 per maund. The loss is there fore 237 maunds at Rs. 87 per maund which comes to Rs. 20,662‑8‑0." On the face of it this method of assessment of damage as compared to the assessment of damage to each bale is not quite satisfactory. It would appear that the Insurance Company was not satisfied with the assessment of damage given by Mr. Lobo. The Insurance Company asked Mr. Lobo to give details of the assessment. Mr. Lobo gave the details of the assessment in such a way that the total amount came to Rs. 20,663‑8‑

0. Mr. Lobo having once given the total amount of the damages to be Rs, 20,663‑8‑0 stuck to the same figure in giving the details of damage per bale. This effort on the part of Mr. Lobo would affect the value of his second assessment.

17. The only criticism that Mr. Patel could urge against the statement of Mr. Rigby was that Mr. Rigby in his report said that the cotton was saw ginned one and not roller ginned. It appears from the evidence on behalf of the plaintiff that the cotton was roller ginned and not saw ginned. In the first place, whatever the quality of the cotton may have been it will not affect the extent of the damage that may have been caused by the fire to each bale. We are primarily concerned with the extent of the damage. The quality of the cotton damaged will only affect the amount that the respondent may be entitled to receive. In case the cotton is of inferior quality namely roller ginned, the respon dent would be entitled to less amount than if it was saw ginned. There is a difference in price between the two qualities. Mr. Rigby has been produced by the railway. The appellant does not challenge the amount of the damage assessed by Mr. Rigby. Mr. Mirza as already discussed above confined his contention to the notice under section 77 of the Railways Act and that the Railway having taken due care as a bailee of the goods was not liable to pay any damages. The learned Advocate for the appellant did not contend before us that the extent of the damage or the amount assessed by Mr. Rigby was not correct. Mr. Mirza, on the other hand; relied upon the statement of Mr. Rigby. I would for the reasons given above accept the statement of Mr. Rigby in preference to that of Mr. Lobo.

18. For the reasons given above, the appeal as well as the cross‑objection are dismissed. In the circumstances of the present case, I would order the parties to bear their own costs. M. R. KAYANI, C. J.‑I agree. K. B. A. Appeal dismissed.