IMPORTANT POINT
The court ruled that failure to provide notice as mandated by Section 10 of the Carriers Act, 1865, renders the suit not maintainable.

ORDER :

(Vinit Kumar Mathur, J.)

1. Heard learned counsel for the parties.

2. The present appeal has been filed by the appellants against the judgment and decree dated 04.05.1990 passed by Additional District Judge No.1, Sri Ganganagar in Civil Suit No.83/1983 (33/1983) whereby the suit instituted by the appellants for recovery of Rs.2,51,000/- was dismissed.

3. Briefly noted facts in the present appeal are that the plaintiff No.1 is a Government Company incorporated under the Indian Companies Act having its registered office at Madras and the plaintiff No.2 is a Limited Company having its registered office at Hoshiyarpur, Punjab and the defendant- Assam Bengal Roadways is a Goods Carriage Company. The plaintiff No.2 ordered for two Generator sets from a Manufacturing company located at Calcutta and the same were to be transported to Sri Ganganagar. The Generator Sets having capacity of 500 KVA and 400 KVA respectively were given to the defendant in secured, perfect and sound condition for safe carriage transportation to Sri Ganganagar. The defendant accepted the consignment and issued three clean and good receipts for transporting the Generator Sets to Sri Ganganagar. After transportation of two Generator Sets to Sri Ganganagar, at the time of the delivery of the Generator Sets, the same were found to be in damaged condition on account of negligence caused by the servants, driver & agents of the defendant company. The damage caused to the Generator Sets was assessed and since the generator sets were insured, the plaintiff No.1 paid an amount of Rs.2,51,000/- towards the damage caused to the Generator Sets. The plaintiff No.2 had given a letter of subrogation to plaintiff No.1 to recover the damage caused by the defendant and therefore, a suit was instituted.

4. The plaintiff No.1 filed the suit raising number of contentions in the plaint including the one in Para No.7 stating that the defendant was sent and served with a notice dated 24.03.1981 claiming amount for the damages/devaluation caused to the Generator Sets while transporting the same from Calcutta to Sri Ganganagar. It was further stated that despite the appellants issued a notice to the defendant within a period of six months from the date of detection of the damages and its assessment, the defendant had not compensated any amount to the plaintiff. Thus, a prayer was made in the plaint for issuing a decree of Rs.2,51,000/- against the defendant and in favour of plaintiff No.1. The defendant filed its written statement before the trial court. The trial court after framing of the issues recorded its findings on each issue and vide its judgment and decree dated 04.05.1990 dismissed the suit instituted by the appellants-plaintiffs. Hence, the present appeal has been filed before this court.

5. Mr. Jagdish Vyas, learned counsel for the appellants-plaintiffs vehemently submitted that the findings recorded by the learned trial court on Issue Nos.3, 4 & 9 are erroneous. The learned counsel attacked the finding of the learned trial court recorded on Issue No.4 as the same goes to the root of the matter as the finding on Issue No.4 will be relevant for maintainability of the suit. The learned counsel submits that while examining and deliberating the finding on Issue No.4, the learned trial court had only considered the documents dated 24.03.1981. He submits that other documents placed on record i.e. the Demand Notice dated 31.08.1981(Ex.P/9) and AD receipt of the same (Ex.P/11) were not considered by the learned trial court while deciding the Issue No.4.

6. The learned counsel further submits that the correspondence between the plaintiff No.1 and the defendant dated 12.12.1981 (Ex.P/20), 22.09.1981 (Ex.P/21) and a letter dated 18.11.1981 (Ex.P/19) were placed on record to show that the defendant was served with the Notice dated 24.03.1981 and 31.08.1981 but the same were not taken into consideration while deciding the Issue No.4. The learned counsel canvassed that to fulfill the re