JUDGMENT - M.S. DESHPANDE, J.:---The only question raised in this second appeal is whether it was obligatory on the respondent-original plaintiff to give a notice as required under section 10 of the Carriers Act, in the event of non-delivery of goods.

2. On 18th August, 1969 the respondent entrusted three bales of handloom saris to the appellant at Wardha for carriage and delivery to the respondent at Nagpur. The bales were worth Rs. 5273-35 p and could have in normal course been delivered to the respondent within three days of the booking. The goods were never delivered and the respondent, therefore, filed a suit for compensation. The appellant inter alia contended that a notice as required under section 10 of the Carriers Act, was necessary. Both the Courts below found that the appellant did not deliver the goods to the plaintiff, that the goods were worth Rs. 5273-35 P. and that the trial Court had jurisdiction to try the suit. They negatived the contention that a notice under section 10 of the Carriers Act was necessary.

3. Shri Bhandge for the appellant relied on the provisions of sections 9 and 10 of the Carriers Act, which run as follows:---

"9. Plaintiff's, in suits for loss, damages, or non-delivery, not required to prove negligence or Criminal Act. In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was, owing to the negligence or criminal act of the carrier, his servants, or agents.

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".

After the goods were entrusted for carriage to the appellant on 18-8-1969 the notice came to be given on 10th August, 1970 and both the Courts have concurrently held that this notice was given beyond the period of six months as required under section 10 of the Carriers Act. The argument here was restricted only to the requirement of giving notice. As submitted by Shri Bhandge, the learned Counsel for the appellant, section 9 only enacts a rule of evidence and bears on the question of burden of proof making it plain that it shall not be necessary for the plaintiff in respect of the goods entrusted to a common carrier for carriage to show that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents. The words "non-delivery" which are to be found in section 9 do not appear in section 10 which makes a notice mandatory in the event of loss or injury to the goods entrusted to the carrier.

4. The submission on behalf of the respondent was that the cases in which the cause of action arises on account of non-delivery, fall in a class apart from the cases where there is loss of or injury to the goods entrusted to the carrier for carriage, and since reference to non-delivery has been made in section 9 and deliberately omitted in section 10, the requirement of giving notice under section 10 is done away with in the cases where there was non-delivery. This argument ignores the purpose for which section 9 is enacted, which is to absolve the consignor of establishing negligence or criminal act of the carrier, his servants or agents, once the goods are entrusted for carriage. Section 10 on the other hand has reference to the condition which has to be performed before the suit is brought viz. by giving a notice in order that stale claims may not be preferred after a long lapse of time. What is, therefore, mentioned in section 9 can have very little relevance while considering the ambit of section 10. It is only in section 9 that the word "non-delivery" occurs

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