Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiff's (respondents) against the Secretary of State for India and the Bengal Central Flotilla Company for compensation for the loss of goods delivered for carriage to the Eastern Bengal State Railway and the Flotilla Company. The plaintiffs allege that they sent notices of demand to the Traffic Superintendent and to the District Collector before the institution of the suit. The defence was denial of liability on the ground that there was no negligence on the part of the defendants. A further objection, not taken in the written statement, was urged on behalf of the Secretary of State at the time of argument, that the claim for compensation was untenable under Section 77 of the Indian Railway Act (IX of 1890) for want of notice to the Railway Administration.
2. The first Court overruled the objection in bar and found for the plaintiff's on the merits, and gave them a decree for a certain amount, and that decree has been affirmed on appeal by the District Judge.
3. In second appeal it is urged on behalf of the Secretary of State, first, that the Lower Appellate Court is wrong in holding that the Traffic Superintendent should be considered as the Manager's agent, and that the notice to him was a sufficient compliance with Section 77 of the Railways Act; and, secondly, that the Lower Appellate Court is wrong in giving the plaintiff's a decree for the amount claimed when there is no evidence to prove that that was the value of the goods damaged.
4. Upon the second point it is necessary to say only this, that the evidence of the plaintiffs' agent shows that the amount claimed is the true value of the goods, and that evidence has been considered sufficient by the Lower Appellate Court. The second contention of the appellant must therefore fail.
5. The first contention urged for the appellant is however in our opinion correct. Section 77 of the Indian Railways Act requires that in a case like this a notice of the claim should be preferred to the Railway Administration within six months from the date of the date of the delivery of the goods, and by Section 3 of the Act 'Railway Administration' in the case of a State Railway is defined to mean the Manager, and to include the Government. The notice that was given to the Government was not served within sis months from the date of delivery of the goods; and the notice which was served within six months was a notice not to the Manager but to the Traffic Superintendent; and though there is nothing to show that the notice, though addressed to the Traffic Superintendent, reached the manager, within six months from the date of delivery of the goods, the Lower Appellate Court holds the notice to be sufficient, because it is of opinion that the Traffic Superintendent should be considered as the Manager's agent in such matters. We think the Court below is wrong in law in taking this view.
6. The learned Vakil for the respondents argued in support of the decree of the Court below that, though the notice served in this case might not have been shewn to be sufficient under the law, the plaintiffs were not bound to prove the service of any notice, want of notice not having been pleaded in defence; and in support of this argument the cases of Davey v. Warne 14 M. &. W. 199 Smith v. Pritchard 2 C. & K. 699 and certain other English cases, were relied upon. We are of opinion that this argument cannot succeed, regard being had to the terms of Section 77 of the Railways Act and to the provisions of Sections 147 and 149 of the Code of Civil Procedure, which authorize the Court to frame issues from certain materials besides the pleadings and to amend the issues at any stage of the case. The objection on the ground of absence of notice, though not taken in the written statement, was raised in argument, and the objection was entertained and disposed of, though erroneously, by the Courts below. It cannot therefore be thrown out on the ground that it was not specially pleaded.
7. But though we hold that the objection on the ground of want of notice cannot be thrown out altogether, we are of opinion that as it was not taken in the written statement and was urged only in argument, the plaintiffs are entitled to have an opportunity of meeting it. In our opinion it will be sufficiently met if it is shewn that the notice served on the Traffic Superintendent reached the Manager within six months from the date of delivery of the goods.
8. The case must therefore go hack to the first Court, in order that it may be disposed of after determination of the point indicated above. Both parties will be at liberty to adduce evidence upon the point. Costs will abide the result.
9. As the appeal is only on behalf of defendant No. 1, and the ground upon which the appeal succeeds relates only to the liability of defendant No. 1, the decrees of the Courts below as against defendant No. 2 will stand.