Section 10 of the Carriers Act does not bar a suit by an insurer for the loss of, or injury to goods.

( 1 ) IN this Suit, the first plaintiff claims upon a subrogation from the second plaintiff who is stated to have lost goods (being tea in chests) by reason of the doings of the servants or agents of the defendant, a common carrier.

( 2 ) LEARNED Counsel for the defendant has already prayed for leave to retire for lack of communication with the defendant and such leave has been granted, However, the written statement of the defendant is on record. Notwithstanding such retirement of counsel, in my opinion a judgment can be passed in favour of the 1st plaintiff upon the admissions contained in the written statement. As the first plaintiff was not in a position to call any witness or formally prove any documents, it is somewhat fortunate for the plaintiff that several noteworthy admissions are contained in the written statement. In paragraph 13 of the written statement, there is admission about delivery of the goods to the defendant and the said delivery being made in regard to the business of the defendant as a common carrier. Paragraph 12 of the written statement also contains no denial of the statements contained in paragraphs 3, 4, 5 and 6 of the plaint. This part of the plaint also relates to the consignment of the goods and mentions the Truck number in which the goods were carried.

( 3 ) THERE is admission in the 14th paragraph of the written statement as to the occurrence of the accident involving the said goods. The 15th paragraph of the written statement specifically admits that the goods were insured with the first plaintiff.

( 4 ) THERE is no denial contained in paragraph 17 of the written statement with regard to the statements contained in paragraphs 15, 16 and 17 of the plaint. These are important paragraphs, especially paragraph 16, which states that Rs. 68,240. 40 was duly paid to the plaintiff No. 2 for settlement of its claim in respect of the loss and damage to goods. Accordingly, a combined reading of the 16th paragraph of the plaint and the 17th paragraph of the written statement shows an admission on the part of the defendant with regard to the money value of the damage that was suffered.

( 5 ) THE accident occurred admittedly in 1977 and the suit is of 1983. Though there is a gap of 6 years, yet the point of limitation would not arise in so far as the 1st plaintiff is concerned by reason of the West Bengal Amendment mentioned in paragraph 22 of the plaint making applicable the increased 30 year period of limitation for suits to Govt. companies apart from the Govt. itself.

( 6 ) IN the written statement there is a point that the suit is bad for non averment of any notice under S. 10 of the Carriers Act being duly served. This is contained in paragraph 9 of the written statement. There is indeed no such averment in the plaint and it is not possible in the absence of any evidence of the first plaintiff to prove such a notice. S. 10 of the Carriers Act is set out below :-"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. "

( 7 ) IT will be seen from the aforesaid Section that a suit as against a common carrier is barred for the loss of, or injury to goods without giving him a notice as prescribed. The present suit, however is not a suit directly for loss of, or injury to goods, but is a suit by an insurer which has arisen by reason of such loss or injury. Significantly the words of S. 10 do not cover suits which are only in relation to the loss of, or injury to goods, but the express words of the Section only cover those direct primary suits which are themselves for the loss of, or injury to the goods.

( 8 ) THE loss or injury to the goods was made up for, at