THOMAS, J. :- In a suit against a Common Carrier for damages for short delivery of goods, the main point of attack at the appellate stage, inter alia, is that the suit is not maintainable due to non-compliance with Section 10 of the Carriers Act, 1865 (for short the 'Act'). The trial Court has repelled that contention on the ground that the defendant had no such plea in the written statement. The suit has been decreed by the trial Court in terms of the plaint.

2. The facts in short are these : M/s. Jyoti Wire Industries had despatched two consignments of Copper Wire from Bombay to Madras, the plaintiff as its consignee, the first consignment sent on 18-2-1974 and the second on 6-3-1974. The goods were sent through the defendant-Company, which is a transporting agency. The Bombay office of the defendant had issued Lorry Receipts for both the consignments. When the plaintiffs representative went to take delivery of goods, shortage was noticed, and this was followed by some correspondence as between the plaintiff, the defendant and the consignor. The defendant admitted that there was shortage in the goods supplied, and allowed the plaintiff to take open delivery of the goods.