D. C. SRIVASTAVA, J.

( 1 ) THIS is plaintiffs Second Appeal arising out of the following brief facts : the plaintiffs-appellants filed a suit for recovery of Rs. 7,194. 75 ps. from the defendant-respondent on account of damages and interest because of non-delivery or misdelivery of goods entrusted to the respondent for carriage and delivery. On 16-6-1972 plaintiff No. 1 handed over consignment of goods for the purposes of delivery to the customer at Indore. The defendants are transporters. They took the consignment for delivery to the consignee and issued lorry receipt on the same day. The lorry receipt and bills were forwarded to the Bank of India at Indore with instructions to deliver the receipt and bills to Binod Steel Limited against payment. Binod Steel Limited did not make the payment to the Bank and ultimately the papers were returned back along with lorry receipt to the plaintiff. There was instruction of the plaintiff to the defendants to deliver the goods only on production of lorry receipt, but ignoring this direction the defendant delivered the goods to Binod Steels ltd. , Indore and failed to obtain lorry receipt. Consequent damages and interest were claimed from the defendants.

( 2 ) THE suit was contested by the defendant on the ground that the goods were supplied for carriage on telephonic message from the plaintiff and as per oral instruction of the plaintiff No. 1 the defendant wrote for direct delivery in the consignment note and kept blank the column of consignee and the name of consignee was to be filled up by the plaintiff No. 1 as they liked. In this way the consignment note was sent to the plaintiff. It was further pleaded that the consignment was delivered by the defendant to the party of Indore, viz. , Binod Steels as per the written instructions of the plaintiff. Hence, it is not the case of wrong delivery, misdelivery or non-delivery. On other grounds also the suit was contested, but those grounds need not be reproduced in this judgment because only one substantial question of law was formulated in this Appeal.

( 3 ) ). The suit was dismissed by the trial Court. An Appeal was preferred which too was dismissed. It is, therefore, this Second Appeal.

( 4 ) THE only substantial question of law on which this appeal was admitted was whether Sec. 10 of the Carriers Act has been rightly applied in the case on hand ? the lower appellate Court has held that for want of notice under Sec. 10 of the carriers Act the suit of the plaintiff cannot be decreed. The lower appellate Court further found that it was a case of misdelivery and consequently it was a case of non-delivery of the consignment to the consignee. Hence, even if there was any liability on the part of the defendant the same cannot be enforced in view of bar of Sec. 10 of the Carriers Act inasmuch as notice under this section was not given to the defendant. The lower appellate Court has also discussed the provisions under the Railways Act as the same stood prior to the amendment of 1961 and the provision as it existed after amendment of 1961 and also the provision of Sec. 10 of the Carriers act and considering the case of the Apex Court and of this Court it was concluded that the Notice under Sec. 10 of the Carriers Act was required to be served before the suit could be filed by the plaintiff.

( 5 ) FOR proper appreciation of this question the relevant provision of the Railways act and the Carriers Act are required to be quoted : section 10 of the Carriers Act reads as under :"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 institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. "section 78b of the Indian Railways Act as it stands after the amendment in Act, 1961, reads as und

Click Here to Read the rest of this document