JUDGMENT

(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree dated 31.07.2013 made in A.S.No.100 of 2012 on the file of the Principal District Judge, Salem reversing the Judgment and decree in OS No.23 of 2007 dated 05.07.2010 on the file of the 2nd Additional Subordinate Judge, Salem.)

1. The defendant in OS No.23 of 2007 who succeeded in convincing the Trial Court to dismiss the suit for damages filed by the Insurance Company and the consignor of the goods under the Carriers Act, seeking damages for loss of goods that were consigned by the second plaintiff through the first defendant Transport Company, upon the reversal of the said judgment and decree by the Lower Appellate Court has come up with this Second Appeal.

2. The facts are not in dispute. The second plaintiff had consigned 141 polished granite monuments in good condition on 01.02.2005 in a lorry bearing No. TN 27 M 2756 under lorry Receipt No.007112 on 01.02.2005. The second plaintiff has also paid the fright charges of Rs.10,500/-. The goods were to be transported to Chennai. The value of the consignment was Rs.9,60,140/-. The lorry met with an accident on the way to Chennai on 02.02.2005, and this resulted in severe damage to the goods that were consigned. Immediately after the accident the defendant issued a Damage Certificate, which was marked as Ex.A3, accepting the value of the loss at Rs.3,06,109/- on 07.02.2005. On 10.02.2005, the second plaintiff issued a notice demanding the said loss. The receipt of the said notice is not disputed. Thereafter, a survey was conducted and a Surveyor's Report came to be filed on 18.04.2005. After the Survey Report, the second plaintiff viz., the Insurance Company which had by then got subrogation of the loss issued a notice dated 10.02.2005 and sued for recovery of damages.

3. The suit was resisted by the defendants contending that the first defendant was not negligent and the accident did not occur due to the negligence of the first defendant’s employee. It was also claimed that the notice issued on 10.02.2005 is not a valid notice under Section 10 of the Carriers Act.

4. The Trial Court accepted the defence and concluded that Ex.A5 notice dated 10.02.2005 is not a valid notice and therefore, the suit having been filed without issuance of notice under Section 10, is liable to be dismissed. The Trial Court also concluded that there was no negligence on the part of the driver of the lorry. On the said conclusions, the learned Trial Judge dismissed the suit. Aggrieved the plaintiffs preferred an Appeal in AS No.100 of 2012.

5. The Lower Appellate Court upon a re-appreciation of the evidence on record concluded that Ex.A5 notice is sufficient notice under Section 10 of the Carriers Act. It also found that once a notice under Section 10 having been issued the plaintiff need not prove negligence in order to succeed in a suit for damages. Therefore, the carrier cannot avoid liability on the ground of absence of negligence. On the said findings, the Lower Appellate Court allowed the Appeal and decreed the suit.

6. Aggrieved the defendants have come up with this Second Appeal.

7. The following questions of law were framed at the time of admission:

1. Whether the findings of the first appellate court is that the appellant liable to pay the amount as damages is perverse finding as contended by the appellant?

2. Whether the finding of the first appellate court in taking into account Ex.A15 as the notice contemplated under Section 10 of the Carriers Act is valid?

3. Whether the finding of the first appellate Court is that the suit is not barred by limitation is correct?

8. I have heard Mr.M.Devaraj, learned counsel appearing for the appellants and Mr.G.Guruswaminathan, learned counsel appearing for M/s.Nageswaran & Narichania for the respondents.

9. Mr.M.Devaraj, learned counsel for the appellants while elaborating on the questions of law would contend that the Lower Appellate Court was not right in conclu