Karnataka High Court
Oriental Insurance Co. Ltd. And Another vs Vaishali Transport Forwarding Agency on 30 August, 1991
Equivalent citations: [1992]75COMPCAS296(KAR), 1991(3)KARLJ198
JUDGMENT R. Ramakrishna, J.
1. An important question that requires determination in this revision is :
"Whether, the court below is justified in dismissing the suit of the petitioners on the ground that notice to the common carrier was not issued as contemplated under section 10 of the Carriers Act, 1865 ?"
2. The undisputed facts are, on April 30, 1987, a consignment consisting of clothes was entrusted to the respondent, a public carrier to be delivered at Akola. The respondent accepted the consignment under G.C. Note No. 257353. The consignment was insured with the first petitioner for covering the risk for damage, short supply, etc.
3. On August 7, 1987, the respondent issued a non-delivery certificate in respect of the goods entrusted to him. The second petitioner, on the basis of this certificate, registered a claim and received a sum of Rs. 4,931.04 towards full settlement of the claim and executed a special power of attorney and a letter of subrogation. On the strength of these documents, the first petitioner instituted a suit for recovery of this amount along with the first petitioner in S.C. No. 5 of 1988 before the Small Causes Court, (Scch. No. 9) Bangalore City.
4. The trial court ordered issue of notice to the respondent returnable by February 15, 1988. On the date of hearing, the respondent was absent though suit summons were served. The court proceeded to place him exparte under Order IX, rule 6(1)(a) and adjourned the case for judgment on April 8, 1988. On April 8, 1988, the learned judge wrote the judgment and pronounced it in the open court dismissing the suit. These facts are borne out in the order sheet.
5. Contrary to this, the order discloses that the court below examined a witness by name N.Sundar Raman and also marked some documents on behalf of the first petitioner.
6. On a perusal of the order, the trial court took the following facts to justify the dismissal of the suit :
(1) The petitioners have not issued notice to the defendant as contemplated under section 10 of the Carriers Act, 1865 ; hence, it is liable to be dismissed in view of the judgment in Oriental Insurance Co. v. Prakash Road Lines Pvt. Ltd. (1987) ILR Kar 3511.
(2) On September 3, 1987, and on September 7, 1987, the first petitioner had no authority to represent the second petitioner. The first petitioner did not require the respondent to settle the suit claim by any notice under section 10, therefore, it cannot recover the suit claim from the respondent.
7. The second petitioner has been compensated and a sum of Rs. 4,931.04 has been paid to it by the first petitioner much earlier to November 20, 1987. Therefore, the claim of the second petitioner cannot be sustained in view of the judgment in Transport Corporation of India (P.) Ltd. v. Oriental Fire and General Insurance Co. Ltd.(1987) 1 Kar LJ 169 (Kar).
8. Sri S.P.Shankar, learned counsel for the petitioners, has assailed the order of the trial court as erroneous as the respondent, both as a carrier of goods and as a bailee, is liable to make good the loss under common law. Learned counsel further submitted that, in the absence of the respondent to contest the claim, the court below acquired the place of the respondent and thereby exceeded its jurisdiction vested in it by dismissing the suit on an assumed ground of notice.
9. All does not appear to be well on a perusal of the trial court proceedings. There is no indication in the order sheet of having examined P.W. 1 and nothing the exhibits of documents.
10. The trial court says in para 10 of the order that :
" On September 3, 1987, the second petitioner sent a monetary claim for Rs. 4,931.04, to the defendant as per exhibit P-3 which was received by the respondent on September 7, 1987, as per exhibit P-5."
11. The court again says :
"Making of such a claim does not dispense with the statutory requirement of issue of notice to a common carrier as contemplated under section 10 of the Carriers Act, 1865."
12. If the first part of the finding is considered, the demand notice issued by the second petitioner meets the requirement of law as it is observed by a Division Bench of this court in Oriental Insurance Co. Ltd. v. Prakash Road Lines Pvt. Ltd. (1987) ILR Kar 3511, referred by the trial court to dismiss the suit. Issue of notice under section 10 is not a subject-matter of controversy in the above case but, on a passing observation, the court held :
"The object of notice is to put the defendant on guard against the claim in question. By virtue of the assignment, the plaintiff for the purpose of section 10 of the Carriers Act, must necessarily mean and include the assignor of the plaintiff in the suit, i.e., the ITI. Hence we hold that the notices issued by the ITI as per exhibit P-10 and exhibit P-17 well within time are sufficient and as such the requirement as to issue of notice under section 10 of the Carriers Act has been complied with."
13. The above finding satisfies the doubt raised by the trial court and answers paras 10 and 11 of the order. When the above judgment confines itself to a limited extent, it is un-understandable as to how this judgment has been relied upon for dismissal of the suit.
14. Section 10 reads as follows :
"10. Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff."
15. The insistence on issue of a notice to a common carrier before institution of the suit is to bring to his knowledge the loss occasioned by his non-delivery, short delivery or loss of the consignment. The court will get the jurisdiction to dismiss the suit, if it finds necessary, only if the common carrier make a grievance of it and a plea is raised in the written statement. The plaintiff is not obliged to state the fact of issue of notice under section 10 in the plaint. It is implied under Order 6, rule 6 of the Civil Procedure Code. This section is intended to bring to the notice of the common carrier the total damage in monetary terms where the carrier is ignorant of this. There will be cases where, after delivery of consignment, the damage would be noticed much later.
16. But, in this case, the respondent has not delivered the goods at all. So non-delivery of goods is within his knowledge. He exhibited such knowledge by giving a non-delivery certificate dated August 7, 1987. Hence, the plea of non-issue of notice is only hypertechnical.
17. The trial court also committed an illegality by presuming a jurisdiction which is not vested in it, when it proceeded to dismiss the suit on the ground of non-issue of notice without giving an opportunity to the petitioners to explain this aspect of the matter when they are duly represented by a learned advocate.
18. Looking from any angle, the order of the trial court is legally not sustainable.
19. In the result, this revision is allowed. The judgment passed by the trial court, describing it as an order dated April 8, 1988, is hereby set aside.
20. The matter is remitted to the trial court with a direction to dispose of the case only on the question of the liability of the defendant to pay the suit claim in accordance with law within two months from the date of receipt of this order.
21. The petitioners are directed to make their appearance before the court below on September 9, 1991, without waiting for any summons.
22. There is no order as to costs.