The plaintiff is not required to explicitly state compliance with Section 10 of the Carriers Act, 1865 in the plaint, and the defendant is obligated to plead the want of compliance in the written statement.

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. The plaintiff declined to believe the defendant's theory that the shortage is on account of a theft from their godown at Guindy in Madras, and the plaintiff blames the defendant for negligence in transporting and/or keeping the goods despatched, no matter that a theft, even if the story is true, had occurred in their godown.

3. The defendant admitted the receipt of the goods entrusted for consignment, although they did not admit that the weight, value, or contents of the bundles entrusted to them are the same as indicated by the consignor-Company. They admit that there was short supply of goods as per the Lorry Receipts issued by them, but according to them, the shortage was on account of a theft from their godown for which prompt information to the police had been lodged. They do not own any responsibility for the theft, as they had taken adequate security measures for prevention of pilferage or theft either during transit or during storage.

4. The learned Sub-Judge was not persuaded to doubt about the value, weight, and contents of the bundles entrusted to the defendant for consignment, and the defendant's theory of theft from their godown was not accepted by the learned Sub Judge. Alternatively, he has found the defendant liable for not taking adequate precaution to prevent such pilferages. Finally, after repelling the defendant's objections to the maintainability of the suit due to non-compliance with Section 10 of the Act, the trial Court has passed a decree in terms of the plaint with costs.

5. We too are not persuaded to find any merit or substance in the argument raised by the learned counsel for the appellant that the plaintiff has not proved that the goods consigned for despatch were the same as indicated by the consignor. If the defendant has not checked up the consignments entrusted to them before issuing the Lorry Receipts, the defendant has a very weak case when it subsequently disowns about the content and weight etc. of the goods entrusted for consignment. Moreover, the defendant has not, in any of the letters sent by them, expressed any doubt about the weight or value of the goods consigned. That apart, Exts.A1 and A2, the two invoices dated 18-2-1974 and 5-3-1974 respectively, issued by M/s. Jyoti Wire Industry, and the genuineness of which had never been in question, prove the plaintiff's case regarding the weight, the value and content of the goods indicated in the Lorry Receipts.

6. Similarly, the defendant's efforts to squirm out from the liability on the strength of the case of their theft cannot succeed. D.W.1 who was in charge of the Guindy office of the defendant-Company, has admitted that no watchman is posted in their godown, and that the office or godown had not been insured against theft. Those are some of the normal precaut