Rajasthan High Court - Jodhpur
United India Insurance Co vs Assam Bengal Roadways Ltd. ... on 10 October, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:41716] (1 of 10) [CFA-130/1990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
S.B. Civil First Appeal No. 130/1990
1. United India Insurance Limited, having its registered & Head
Office at 24, Whites Road, Madras 600 014 & its Divisional Office
No.3, Post box No.236, 60, Janpath New Delhi 110001.
2. M/s Jagatjit Cotton Textile Mills, Ltd., Thapar House, 124,
Janpath, New Delhi 110 001.
----Appellant
Versus
Assam Bengal Roadways Ltd. M.C.D. Building, 3 rd Floor, D.B.
Gupta Road, Paharganj, New Delhi 110 055.
----Respondent
For Appellant(s) : Mr. Jagdish Vyas.
For Respondent(s) : Mr. Sohan Lal Jain.
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
10/10/2024
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
[2024:RJ-JD:41716] (2 of 10) [CFA-130/1990]
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,
[2024:RJ-JD:41716] (3 of 10) [CFA-130/1990]
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
[2024:RJ-JD:41716] (4 of 10) [CFA-130/1990]
No.4. The learned counsel canvassed that to fulfill the requirement
of Section 10 of the Carriers Act, 1865 (hereinafter referred to as
the 'Act of 1865'), the plaintiff had placed on record the
documents/letters stated above to show that Notice dated
24.03.1981 was sent and served upon the defendant within a
period of six months from the date of knowledge of the damages
observed by the plaintiffs in the two Generator Sets received by
them. The learned counsel has tried to impress upon this Court
that the learned trial court had only considered the Notice dated
24.03.1981 while deciding the Issue No.4 and wrongly recorded
the finding that the letter dated 24.03.1981 was neither sent nor
served upon the defendant and, therefore, the plaintiffs had failed
to comply with the mandate of Section 10 of the Act of 1865. He
submits that the finding recorded by the learned trial court,
therefore, is erroneous.
7. The learned counsel further submits that the findings
recorded by the learned trial court on Issue Nos.3 & 9 are contrary
to the record and therefore, the same are required to be quashed
and set aside. The learned counsel for the appellants, therefore,
prays that the suit instituted by the appellants may be decreed as
prayed for.
8. On the contrary, the learned counsel for the respondent-
defendant has vehemently supported the findings recorded by the
learned trial court on Issue No.4 and submits that the pleadings in
the present case clearly established the fact that no Notice dated
24.03.1981 was sent by the plaintiffs and therefore, there was no
question of having received the same by the defendant. The
[2024:RJ-JD:41716] (5 of 10) [CFA-130/1990]
learned counsel for the defendant submits that in Para 7 of the
plaint, the plaintiff had mentioned about the Notice dated
24.03.1981 only and the pleadings with respect to the Demand
Notice dated 31.08.1981 is conspicuously absent. The learned
counsel, therefore, submits that placing of the documents dated
31.08.1981 and the AD Receipt is an afterthought, therefore, the
same were rightly ignored by the learned trial court while deciding
the Issue No.4. The learned counsel submits that the suit was filed
by the plaintiffs in the year 1983 and, therefore, all the
correspondence held between the plaintiff No.1 and defendant
prior to the institution of the suit was well within the knowledge of
the plaintiff but the same was not mentioned in the plaint which
clearly goes to show that to cover up the issue of bringing the suit
within the ambit of Section 10 of the Act of 1865, the
correspondence was placed on record. He, therefore, submits that
the findings recorded by the learned trial court on Issue No.4 is
just, proper and correct and the suit itself was not maintainable as
no Notice as mandated under Section 10 of the Act of 1865 was
issued and served by the plaintiff No.1 within a period of six
months from noticing the damages in the Generator Sets received.
The learned counsel further submits that the letters dated
12.12.1981 (Ex.P/20), 22.09.1981 (Ex.P/21) and 18.11.1981
(Ex.P/19) do not disclose the fact that the Notice dated
24.03.1981 was issued and received by the defendant. He submits
that these letters only speak about the amount of freight charges
due to the defendant which was required to be paid by the plaintiff
No.1 and therefore, they are of no help to the plaintiff to show
[2024:RJ-JD:41716] (6 of 10) [CFA-130/1990]
that the Notice dated 24.03.1981 was issued within a period six
months as mandated by Section 10 of the Act of 1865. He,
therefore, prays that in view of the finding recorded by learned
trial court on Issue No.4, the suit filed by the plaintiff No.1 was
not maintainable and therefore, the same was rightly dismissed by
the learned trial court.
9. I have considered the submissions made at the Bar and have
gone through the relevant record of the case.
10. To appreciate the controversy involved in the present case,
the finding recorded by the learned trial court on Issue No.4 is
relevant as the same goes to the root of the matter and will clinch
the issue with respect to the maintainability of the suit itself
before the learned trial court, therefore, the same is considered
and decided by this Court in the first instance.
11. Section 10 of the Act of 1865 mandates that no suit shall be
instituted against a common carrier for the loss of or injury to,
goods entrusted to him for carriage unless notice in writing of loss
or injury has been given to him before the institution of the suit
and within six months of the time when the loss or injury first
came to the knowledge of the plaintiff. Thus, the first and
foremost thing which is required to be decided in the present case
is with respect to the maintainability of the present suit in view of
Section 10 of the Act of 1865 and therefore, the finding of the trial
court on Issue No.4 is important and relevant.
12. The admitted facts in the present case disclose that two
generator sets of plaintiff No.2 which were to be transported from
Calcutta to Sriganganagar, was entrusted to the defendant for
[2024:RJ-JD:41716] (7 of 10) [CFA-130/1990]
transportation. The plaintiff No.1 insured the Generator sets
during the transit from Calcutta to Sriganganagar which were
delivered to the plaintiff No.2 in the month of March, 1981. After
the delivery of the generator sets, the plaintiff No.2 examined the
same and found that the damage was caused to the generator
sets. On account of having suffered the damages in two generator
sets, the plaintiff No.1 paid a sum of Rs.2,51,000/- and the
plaintiff No.2 issued a letter of subrogation to the plaintiff No.2 for
recovering the damages caused by the defendant and therefore,
the plaintiff No.1 had preferred a suit for recovery of
Rs.2,51,000/- against the defendant.
13. For maintainability of the suit under the Carriers Act, 1865,
the plaintiff is required to comply with Section 10 of the Act of
1865 which mandates that a notice is required to be issued within
a period of six months from the date of knowledge of the damage
suffered. In the present case, when the goods were received in
the month of March, 1981, the plaintiff served a notice dated
24.03.1981 to the defendant and on the strength of the Demand
Notice dated 31.08.1981, its AD receipt, the letters dated
12.12.1981, 22.09.1981 and 18.11.1981, the plaintiffs had tried
to submit before this Court that mandate of Section 10 was
fulfilled for maintainability of the suit preferred by the plaintiff
No.1 for recovery of damages from the defendant. The learned
trial court in these circumstances, formulated Issue No.4. The
issue No.4 and the findings recorded by the learned trial court on
issue No.4 are reproduced as under:-
[2024:RJ-JD:41716] (8 of 10) [CFA-130/1990]
"D;k oknh u0 2 }kjk Dyse dh ckcr uksfVl 24@03@1981 dks okgu
vf/kfu;e ds vUrxZr izfroknh dks fn;k x;k\ oknh"
"bl fook/kd dks izkjafHkd :i ls fl) djus dk Hkkj oknhx.k ij gSA bl fook/kd
ds lUnHkZ esa ih&M&1 ,e- ,e- Hk.Mkjh us vius l"kiFk dFku dk eq[; ijh{kk esa ;g
dgk gS fd mUgksaus izfroknh dEiuh dks dsfj;j ,DV ds rgr uksfVl fn;k Fkk]
ftldh udy izn"kZ&7 gSA
blds foijhr Mh&M&1 rjlseyky us vius l"kiFk dFku dh eq[; ijh{kk esa ;g
dgk gS fd iz"uxr Dyse dh ckcr mudh dEiuh dks oknh dh vksj ls dksbZ uksfVl
ugha fn;k x;kA bl rjg ih&M&1 ,e-,e- Hk.Mkjh ds l"kiFk dFku dk [k.Mu
Mh&M&1 rjlseyky us vius l"kiFk dFku ls fd;k gSA blfy;s flQZ ih&Mh&1
,e-,e- Hk.Mkjh ds mDr l"kiFk dFku ds vk/kkj ij ;g ugha ekuk tk ldrk gS fd
oknh la-2 esa Dyse dk ckcr fnukad 24-03-86 dh izfroknh dks uksfVl fn;k FkkA
izn"kZ&7 uksfVl dh izfrfyfi ij ;g uksfVl tfj;s jftLVMZ ,-Mh- izfroknh dks Hkstk
tkuk vafdr fd;k x;k gSA exj oknh dh rjQ ls bl uksfVl dks tfj;s
jftLVMZ ,-Mh- fHktok;s tkus ds laca/k esa iksLV&vkfQl dh dksbZ jlhn izLrqr ugha
dh x;h gS rFkk oknh dh rjQ ls ,d izkfIr jlhn izn"kZ&11 izLrqr dh x;h gSA ;g
izkfIr jlhn fnukad 03-06-81 dh gS] tokc oknh la-2 }kjk Dyse uksfVl izn"kZ&7
fnukad 24-03-81 dks fn;k tkuk cryk;k x;k gSA blfy;s bl izkfIr jlhn izn"kZ&11
ds vk/kkj ij ;g ugha ekuk tk ldrk gS fd ;g izn"kZ&8 fn;s x;s uksfVl dh izkfIr
jlhn gSA blds vfrfjDr izn"kZ&7 uksfVl dks izfroknh }kjk dksbZ tokc fn;k x;k
gks] bldk Hkh dksbZ izfrfyfi oknh dh rjQ ls izLrqr ugha dh x;h gSA vr% mDr
foospu ds vk/kkj ij oknh viuk lk{; ls ;g izekf.kr djus esa vlQy jgk gS fd
oknh la-2 dh rjQ ls iz"uxr Dyse dh ckcr uksfVl fnukad 24-03-81 dks okgu
vf/kfu;e ds varxZr izfroknh dks fn;k x;k FkkA blfy;s bl fook/kd dk fu.kZ;
oknhx.k ds fo:) o izfroknh ds i{k esa fd;k tkrk gSA"
13. The learned trial court had taken into consideration the letter
dated 24.03.1981 only and had come to the conclusion that it was
not proved by the plaintiffs that the same was issued and served
upon the defendant, therefore, the finding on Issue No.4 was
recorded against the plaintiffs while deciding the suit of the
plaintiffs. The pleadings in the plaint show that the appellants
pleaded in paragraph 7 as under:-
"That in respect of the aforesaid
damages/devaluation/shortages, a notice of claim dated
24.03.1981 was lodged with the defendant by plaintiff
No.2 as required under the Carriers act but in spite of it,
the defendant has failed and neglected to pay the
compensation to the plaintiffs".
14. A bare perusal of the entire plaint shows that except Notice
dated 24.03.1981, there is no mention of the correspondence
dated 31.08.1981, AD Receipt thereof, letters dated 12.12.1981
(Ex.P/20), 22.09.1981 (Ex.P/21) and 18.11.1981 (Ex.P/19)
[2024:RJ-JD:41716] (9 of 10) [CFA-130/1990]
though the suit was filed in the year 1983. This Court is of the
considered view that if the plaintiff had entered into the
correspondence with the defendant as per the letters mentioned
above, then at least the same was required to be pleaded in their
plaint. These correspondence are of much prior dates of the filing
of the suit. The appellant-plaintiff was under an obligation to prove
before the learned trial court that mandate of Section 10 of the
Act of 1865 was satisfied and proved for maintaining the suit
preferred by it. This Court is firmly of the view that if the notice
dated 24.03.1981 was sent within a period six months from the
knowledge of the damage suffered, the same was required to be
proved beyond doubt for maintaining the suit.
15. The other correspondence undertaken by the appellant-
plaintiff and the defendant does not show that the notice dated
24.03.1981 was issued and served to the defendant within a
period of six months and therefore, in the opinion of this Court,
the finding recorded by the learned trial court on Issue No.4 is just
proper and correct. Since the finding on Issue No.4 is held against
the appellant-plaintiff, therefore, the suit preferred by the plaintiff
was not maintainable as per the mandate of Section 10 of the Act
of 1865 and the same was rightly dismissed by the learned trial
court.
16. Learned counsel for the appellant has rightly not canvassed
the findings on other issues in view of the finding recorded by the
learned trial court on issue No.4 holding the suit being not
maintainable.
[2024:RJ-JD:41716] (10 of 10) [CFA-130/1990]
17. In view of the discussion made above, the appeal preferred
by the appellant fails and the same is, therefore, dismissed.
(VINIT KUMAR MATHUR),J
1-Anil Singh/-
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