Important Point – Period with respect to legal notice has to be added to period of limitation.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 12.4.2016 and the First Appellate Court dated 11.1.2017; by which the suit for recovery of Rs.1,44,547/- has been decreed along with interest at 9% per annum simple. The subject suit was filed by the respondents/plaintiffs for recovery of amount on account of loss caused by the appellant/defendant/transporter by short delivery of the goods transported by the appellant/defendant for the respondent no.2 herein, and who was the plaintiff no.2 in the trial court.

2. The facts of the case are that the National Insurance Company Limited as plaintiff no.1 and M/s Synthite Industrial Chemicals Limited as plaintiff no.2 (respondent nos.1 and 2 herein respectively) filed the subject suit pleading that the appellant/defendant is the common carrier of goods and which company was entrusted for transportation by the respondent no.2/plaintiff no.2, a consignment of 142 cartons with an insured value of Rs.16,91,305/-. The consignment in question was booked by the appellant/defendant vide its consignment note no. 948802 dated 1.10.2003. The consignment was ex-Kochi to New Delhi. Transportation was to be by road. During the course of transportation four cartons having value of Rs.1,44,547/- were lost by the appellant/defendant because out of the 142 cartons given to the appellant/defendant for transportation only 138 cartons were finally delivered. The appellant/defendant confirmed the short delivery of goods/cartons by issuing its short certificate delivery bearing serial no.1949 dated 11.11.2003. The respondent no.2/plaintiff no.2 had insured the consignment with the respondent no.1/plaintiff no.1, and accordingly because of the loss having occasioned which was covered under the Marine Policy no.570802/21/03/4400001, respondent no.1/plaintiff no.1 paid and settled the claim of Rs.1,44,547/- to the respondent no.2/plaintiff no.2. After settlement of the claim, the respondent no.2/plaintiff no.2 executed a letter of subrogation dated 23.8.2004 in favour of the respondent no.1/plaintiff no.1. The loss notice under Section 10 of the Carriers Act (the Carriers Act, 1865, the statute as then applicable) dated 19.12.2003 was served upon the appellant/defendant by the respondent no.2/plaintiff no.2 with respect to the loss of Rs.1,44,547/-. The subject suit hence came to be filed on behalf of the two respondents/plaintiffs with the respondent no.2/plaintiff no.2 being the owner of goods who had transported its goods through the appellant/defendant, and the respondent no.1/plaintiff no.1/insurance company which had settled and paid the claim to the respondent no.2/plaintiff no.2 and taken the letter of subrogation dated 23.8.2004 in its favour.

3. The appellant/defendant contested the suit and denied its liability. It was pleaded by the appellant/defendant that the loss notice dated 19.12.2003 was not served upon the appellant/defendant. Locus standi of the respondent no.1/plaintiff no.1 to file the suit was denied. The appellant/defendant also denied that any cause of action had accrued in favour of the respondents/plaintiffs. It was accordingly prayed that the suit be dismissed.

4. After the pleadings were complete, the trial court framed the following issues:-

“1. Whether the suit of the Plaintiff is barred by limitation? OPD

2. Whether the suit of the Plaintiff is not maintainable as Plaintiff had not complied with the provisions of Section 10 of Carriers Act? OPD

3. Whether the Plaintiff is entitled for a recovery of Rs.1,44,547/- from the Defendant as claimed for? OPP

4. Whether the Plaintiff is entitled for any interest if so at what rate and for which period? OPP

5. Relief, if any.”

5. Evidence was thereafter led by both the parties and the documents which are proved through the deposition of witnesses of the respond