Kalyan Rai Surana, J.

1. Heard Ms. N. Talukdar, the learned counsel appearing for the appellant, Mr. K.K. Bhatta, learned counsel for the respondent No. 1. Mr. B.J. Mukherjee learned counsel appearing for the proforma respondent Nos. 5, 6 and 7. This is an appeal under section 96 of the CPC. The appeal is directed against the judgment and decree dated 23.07.2008 passed by the learned Civil Judge (Senior Division) No. 3, Guwahati in Money Suit No. 72/2000. For the sake of convenience, the parties are referred as per their respective position in the array of the parties in the plaint.

2. The short facts of the case is that the plaintiff i.e. New India Assurance Company Limited was the insurer of the goods which were sent from Guwahati office of Gujarat Co-operative Milk Marketing Federation Ltd. to its Silchar depot. The said insured are arrayed as proforma defendant in the suit. The goods were transported through Abhiyan Carriers Limited. The said carrier along with its partner/Director were arrayed as defendant Nos. 1 to 4 in the suit. The goods were booked on 06.01.1998. The carrier consignment lot No was 43834 Y685 dated 6.1.98. According to the invoice No. 545 dated 6.1.1998 the value of the goods was Rs. 7,33,528.20p.

3. In course of transit from Guwahati to Silchar, the consignment was lost. Coming to know about the missing consignment, the defendant No. 1 tried to trace out the truck and in the meanwhile an FIR was also lodged with the Dispur Police Station on 19.01.1998. Claiming the loss, the proforma defendants lodged a claim with the plaintiff/insurer claiming the sum of Rs. 8,06,881.02p. The defendant No. 1/transporter admitted the loss of consignment, and also acknowledged the receipt of claim. As the defendant No. 1/transporter did not make payment, the plaintiff/insurer made the payment of the claim of Rs. 8,06,881/- to the proforma defendants. In the meanwhile, the proforma defendants issued a 'letter of subrogation' in the favor of the plaintiff on 20.01.1998, thereby assigning and transferring all their rights to the insurer. Having the full right and authority, the plaintiff filed a suit for recovery of the amount of Rs. 8,06,881/- along with the interest @ 18% from 14.09.1998 till the date of realization.

4. The defendant Nos. 1 to 4 who are the appellants herein contested the suit by filing written statement. On the basis of the pleadings of the parties, the learned Trial Court framed the following issues:-

1. Whether the suit is maintainable?

2. Whether the suit is barred by limitation?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether notice u/s. 10 of the Companies (sic.) act has been served upon the defendant?

5. Whether the defendant No. 1 is a common carrier?

6 whether the defendant company issued Marine Policy No. 21/220701/00029 and said policy was valid from 1.4.97 to 31.3.02?

7. Whether the proforma defendant No. 4 with the defendant No. 1 booked as alleged consignment.

8. Whether the letter on subrogation was executed in favour of defendant?

9. Whether the plaintiff is entitled to get a decree as prayed for?

10. What any other relief or reliefs the pa-ties are entitled to?

5. The plaintiff has examined 3 (three) witnesses and exhibited 13 (thirteen) documents and the defendant side examined one witness. The issue Nos. 1, 2, 3 and 5 appear to be formal. It appears that there is an error in framing the issue No. 4 which ought to be 'whether notice under section 10 of the Carriers Act had been served on the defendant' as the name of the Act has been wrongly mentioned as Companies Act.

6. These issues were answered in favor of the plaintiff by holding that the suit was maintainable and not barred by limitation and not barred by non-joinder of necessary parties and it was held that notice under section 10 of the Carriers Act having been served, the defendant No. 1 was a common carrier. In respect of issue No. 8 it appears that there is a mistake in framing issue and it should have