Kerala High Court
Kerala Transport Company vs Apollo Cables Private Ltd. on 29 October, 1985
Equivalent citations: I(1986)ACC39, AIR1986KER219, AIR 1986 KERALA 219, (1986) 1 TAC 418, (1986) 1 ACC 29, ILR (1986) 1 KER 656, (1986) ILR(KER) 1 KER 656, (1985) KER LJ 875, (1986) 1 CURCC 855
JUDGMENT Thomas, J.
1. In a suit against a Common Carrier for damages for short delivery of goods, the main point of attack at the appellate stage, inter alia, is that the suit is not maintainable due to non-compliance with Section 10 of the Carriers Act, 1865 (for short the 'Act'). The trial Court has repelled that contention on the ground that the defendant had no such plea in the written statement The suit has been decreed by the trial Court in terms of the plaint.
2. The facts in short are these : M/s. Jyoti Wire Industries had despatched two consignments of Copper Wire from Bombay to Madras, the plaintiff as its consignee, the first consignment sent on 18-2-1974 and the second on 6-3-1974. The goods were sent through the defendant-Company, which is a transporting agency. The Bombay office of the defendant had issued Lorry Receipts for both the. consignments. When the plaintiff's representative went to take delivery of goods, shortage was noticed, and this was followed by some correspondence as between the plaintiff, the defendant and the consignor. The defendant admitted that there was shortage in the goods supplied, and allowed the plaintiff to take open delivery of the goods. The plaintiff declined to believe the defendant's theory that the shortage is on account of a theft from their godown at Guihdy in Madras, and the plaintiff blames the defendant for negligence in transporting and/or keeping the goods despatched, no matter that a theft, even if the story is true, had occurred in their godown.
3. The defendant admitted the receipt of the goods entrusted for consignment, although they did not admit that the weight, value, or contents of the bundles entrusted to them are, the same as indicated by the consignor-Company. They admit that there was short supply of goods as per the Lorry Receipts issued by them, but according to them, the shortage was on account of a theft from their godown for which prompt information to the police had been lodged. They do not own any responsibility for the theft, as they had taken adequate security measures for prevention of pilferage or theft either during transit or during storage.
4. The learned Sub-Judge was not persuaded to doubt about the value, weight, and contents of the bundles entrusted to the defendant for consignment, and the defendant's theory of theft from their godown was not accepted by the learned Sub Judge. Alternatively, he has found the defendant liable for not taking adequate precaution to prevent such pilferages. Finally, after repelling the defendant's objections to the maintainability of the suit due to non-compliance with Section 10 of the Act, the trial Court has passed a decree in terms of the plaint with costs.
5. We too are not persuaded to find any merit or substance in the argument raised by the learned counsel for the appellant that the plaintiff has not proved that the goods consigned for despatch were the same as indicated by the consignor. If the defendant has not checked up the consignments entrusted to them before issuing the Lorry Receipts, the defendant has a very weak case when it subsequently disowns about" the content and weight etc. of the goods entrusted for consignment Moreover, the defendant has not, in any of the letters sent by them, expressed any doubt about the weight or value of the goods consigned. That apart, Exts. A1 and A2, the two invoices dated 18-2-1974 and 5-3-1974 respectively, issued by M/s. Jyoti Wire Industry, and the genuineness of which had never been in question, prove the plaintiffs case regarding the weight, the value and content of the goods indicated in the Lorry Receipts.
6. Similarly, the defendant's efforts to squirm out from the liability on the strength of the case of their theft cannot succeed. D. W. 1 who was in charge of the Guindy office of the defendant-Company, has admitted that no watchman is posted in their godown, and that the office or godown had not been insured against theft. Those are some of the normal precautionary measures taken by any reasonably diligent persons storing large items of goods in their godowns. Failure to take such precautionary measures disentitles them from being absolved from its consequential liabilities.
7. The main line of resistance taken up in this appeal is that the suit should have been found not maintainable in view of Section 10 of the Act. That Section reads thus :
"10. 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."
8. The learned counsel justified his taking up this contention, even without raising such a plea in the written statement, on the premise that non-compliance with Section 10 goes to the root of the lis and it forestalls the very right to institute the suit in view of the sweeping inhibitory words in the commencement portion of Section 10, "no suit shall be instituted against a common carrier.....".According to the learned counsel, the plaintiff should have made out sufficient pleadings in the plaint itself that they had issued such a notice within such period as specified in the said section, as that is a condition precedent for instituting the suit. We do not find either from Section 10 of the Act or from any other provision of law that the plaint should contain such averments regarding the compliance of Section 10 of the Act. Support to this proposition can be found by a comparison with Section 80 of the Code of Civil Procedure, where a condition precedent is fixed for filing a suit against the Government etc. Section 80 (1)(c) stipulates that the plaint shall contain a statement to the effect that the notice contemplated in Section 80(1) has been sent. It may be noticed that there is no such insistence either in Section 10 of the Act or in any other law that a statement regarding the compliance of Section 10 should find a place in the body of the plaint. The direction in Order VI, Rule 6 of the Code of Civil Procedure that any condition precedent for filing a suit shall be distinctly specified in the pleadings, is subject to a rider that such a plea need be made by the party who intends to contest the performance or occurrence of such conditions. The latter portion of the said rule makes the position sufficiently clear that the performance or occurrence of such condition precedent snail be implied in the pleadings. From these indications, we feel well assured to observe that it is not incumbent on the plaintiff to set out such fact in the plaint regarding the compliance of conditions embodied in Section 10 of the Act. The performance of such condition will be implied in the plaint even without any specific advertence thereto in the plaint. But the defendant's position, in this context, is different. He has, perforce, to plead the want of compliance or performance of the condition in Section 10 of the Act, and lay the facts in support of such a contention. Without setting forth such a plea in the written statement, it is not open to him to raise such a contention at the time of argument, or lead evidence to support such a contention.
9. One of the earliest decisions on this subject can be found in the decision reported in U Ba Tin v. U Tun On, AIR 1938 Rangoon
437. Repelling an argument strongly pressed into service that the plaintiff should have expressly stated in the plaint that he had issued the notice required by Section 10 of the Act, Roberts, C.J. speaking for himself, had observed that "such an averment is implied under Order 6, Rule 6 of the Code of Civil Procedure, and it is for the defendants to deny in their written statement according to Order VIII, Rule 2, and to raise the plea of the absence of notice". Dunkley J., the other Judge on the Bench, had gone to a further extent in his separate judgment. He has said thus : "Failure to raise in the written statement the plea of the absence of notice amounts to waiver on the part of the defendants of the proof of notice." A similar view has been adopted by a single Judge of the Punjab and Haryana High Court in the decision reported in J.E.M.T, Co-op. Socy. v. General Assurance Socy., AIR 1979 Punj & Har 336. "Section 10 does not provide that the fact regarding service of notice should be mentioned in the plaint.
Even, if there was no mention of the notice in the plaint, the plaintiffs had the right to prove that a notice under Section 10 was duly served upon the defendant".
10. Counsel for the appellant has cited a very early decision rendered in the year 1917 by the Calcutta High Court reported in River Steam Navigation Co. Ltd. v. Hazarimal Multan Mal, 41 Ind Cas 919 : (AIR 1918 Cal 896).
Referring to Section 10 of the Act the learned Judge had observed that "such a notice must be given and it is not enough to say that the Company had knowledge aliunde of the loss".
This observation is made in a context where the Court was considering the ambit of a clause in a Bill of Lading that notice of loss must be given or delivered in the office of the Company at Calcutta before the institution of a suit against that Company. Though Section 10 of the Act was also referred to by their Lordships, the interpretation placed was not on that section and as such the observations made by them cannot be taken as laying down any principle based on that Section. We are in respectful agreement with the view expressed in U Ba Tin v. U Tun On's case (AIR 1938 Rangoon 437) and J.E.M.T. Co-op. Socy. v. General Assurance Socy.'s case (AIR 1978 Punj & Har 336) cited supra.
11. All that apart, there is evidence in the case to show that the plaintiff had in fact sent a notice to the defendant within a time limited in Section 10 of the Act. Ext. A6 dated 15-6-1974 and Ext. A8 dated 27-6-1974 are letters sent by plaintiff-Company to the defendant mentioning about the short delivery and requesting them to make amends for it. The receipt of these letters is not in dispute, on the other hand the defendant had acknowledged receipt of those letters. Either of those two letters would be sufficient compliance, with the requirement in Section 10 of the Act.
For the aforesaid reasons, we concur with the finding of the learned Sub-Judge and confirm the judgment and decree passed by the lower Court and dismiss this appeal with costs.