The term 'given' in Section 10 of the Carriers Act is interpreted to mean 'sent', allowing the suit to proceed despite the defendant's claims.

1The appellant / plaintiff being aggrieved by the judgment and decree dated 5-7-1991 passed in Civil Suit No.3 - B of 1983 by the II Additional Judge to the Court of the District Judge, Hoshangabad, dismissing the plaintiffs suit, has preferred the present appeal.

2. The brief facts leading to the present appeal are that the plaintiff, which is an undertaking of the State of M.P. constituted under the provisions of the M.P. Beej and Farm Vikas Nigam Adhiniyam, 1980 , had given to defendant, for transportation, 160, quintals of wheat seeds worth Rs. 36,000/- from Seoni Malwa to Jagdalpur vide bilty dated 11-11-1982. The seeds were loaded in the defendant's truck No. CPJ 6463. The defendant did not deliver the goods at Jagdalpur. Therefore, the plaintiff personally informed one Ramadhar of the defendant / firm regarding non - delivery of the goods with a request that either the costs of the goods be paid or the receipt of the consignee be produced. Various letters dated 22-12-1982, 6-1-1983,20-1-1983 and 2-2-1983 were sent to the defendant and ultimately legal notice through the counsel was sent on 19-3-1983. The defendant, despite receipt of the letters and notice did not reply. Therefore, the plaintiff filed the suit for recovery of costs of 100 quintals of wheat seeds Rs. 36,000/-, Rs. 2155/- advance paid for loading and unloading and Rupees 2,855 / - as interest at 18 per cent per annum.

3. The defendant raised various disputes and submitted that the goods were not entrusted to him but in fact some clerk of the plaintiff came to him for obtaining a bilty, under pressure he gave the same. The defendant also raised the defence under S.10 of the Carriers Act and alleged that a notice in writing was not given to him, therefore, the suit was bad.

4. The learned trial Court framed various issues, received documentary evidence and recorded oral evidence of the parties and after hearing the parties came to the conclusion that -
(i) The plaintiff had engaged the defendant / company for transportation of seeds,
(ii) the goods were loaded in defendant's truck, a sum of Rs. 2,155/- was paid to the defendant as advance,
(iii) the defendant did not deliver the said consignment and also held that the plaintiff was entitled to a decree for Rs. 41,000/- but lastly held that as the statutory notice under S.10 of the Act was not given to the defendant, the suit was not tenable.
The trial Court dismissed the suit holding that the suit was not maintainable in absence of the statutory notice. Hence this appeal by the plaintiff.

5. Shri Singh learned counsel for the appellant contended that the word 'given' in S.10 of the Act has to be read in conjunction with the preamble of the Act. The word 'given' has to be interpreted as 'issue' as any other interpretation would be illogical because in a given case the defendant by avoiding the service of the notice would never permit the plaintiff to file the suit for recovery. It was submitted that service in a particular form or manner is not necessary. The plaintiff is required to establish that notice was given to the defendant. Shri Deoras, on the other hand, submitted that the evidence available on record does not establish that a notice in writing for the loss or injury was given to the defendant before the institution of the suit and, therefore, the suit was rightly dismissed.

6. The preamble of the Act reads as under :
"Whereas it is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability