AI Structured Summary
Not yet generated for this judgment
Judgment
Harbans Lal, J.—This case was referred to Tewatia, J., u/s 13(b) of the Arbitration Act, 1940, (hereinafter to be called the Act), as a special case for opinion and advice, by Shri Ram Lal Aggarwal, who was appointed as an Arbitrator, by order of Tewatia, J., on November 23, 1973.
A suit was filed by M/S General Assurance Society Limited and M/S Fatehabad Cotton Ginning and Pressing Factory, (hereinafter to be called Plaintiff No. 1 and Plaintiff No. 2, respectively), against M/S The Jullundur Ex-Servicemen Motor Transport Co-operative Society, Limited, (hereinafter to be called the Defendants), in the Court of the Senior Subordinate Judge, Hissar, on June 16, 1969, for the recovery of Rs. 48,000/- as loss on the ground that Plaintiff No. 2, booked two consignments of cotton comprising (sic) bales and 75 bales from Mandi Dabwali, situated in the composite State of Punjab (now in Haryana), to Rampur, in Uttar Pradesh, with the Defendant. The Defendant company issued receipts for the same, Exhibits P 2 and P. 3, dated May 26, 1967. These consignments were unloaded at the Delhi border by the Defendant company from where the same had to be transported to the destination in Uttar Pradesh in some other trucks. Before they were transported, the goods caught fire, resulting in substantial destruction of goods. Plaintiff No. 2, served a notice on the Defendant, a copy of which is, Exhibit P.W. 9/1/A.
The Defendant "submitted an application u/s 34 of the Act, for the stay of proceedings in the main suit on the plea that recording to the terms of the agreement between Plaintiff No. 2 and the Defendant, any dispute arising out of the above-mention- ed consignments, was required to be referred to arbitration, in the first instance. The trial Court dismissed the application by his order, dated April 30, 1971, which was challenged in appeal in this Court vide F.A.O. No. 149 of 1971. In appeal, however, the parties entered into a compromise to refer the matter to the arbitration of Shri Amrit Sagar Mahajan Advocate, Chardigarh. Before the finalisation and Making of the award, be, unfortunately, met with a fatel accident there- fore, the matter was referred to Shri Ram Lal Aggarwal, as an Arbitrator, by Tewatia, J.A. contention was raised by the Learned Counsel for the Defendant before Shri Ram Lal Aggarwal, Arbitrator, that no notice, u/s 10 of the Carriers Act, 1865, (hereinafter to be called the Carriers Act), had been served by any of the Plaintiffs on the Defendants, within six months, as required by that provision and, therefore, the Plaintiffs were not entitled to any claim. Mr. Ram Lal Aggarwal, Arbitrator, felt difficulty in deciding the matter on account of the fact that there was no decided case on the matter in controversy. Having come to the conclusion that the question involved was of considerable importance and the rights of the parties were likely to be materially affected, he had referred the matter to Tewatia, J., for opinion and advice, u/s 13(b) of the Act, by his reference, dated January 9, 1976. After the transfer of Tewatia, J., this case has come up for decision before me.
The main and the only question for which reference has been made by the Arbitrator is whether the notice. Exhibit P. W. 9/1/A. is a valid notice under the provisions of Section 10 of the Carriers Act. The said notice is reproduced below:
Messrs. The Jullundur Ex. Servicemen Motor Transport Co- operative Society, Limited, Ladowali road, Jullundur, Dear sirs. 175 (one hundred and seventy five) bales of Bengal Desi Cotton dispatched by us from Mandi Dabwali to Rampur vide your Loading Receipts Nos. 180862 and 180863 both dated 26th May, 1967, have not reached destination. They have been burnt in transit. We have suffered a loss of Rs. 72,000/- (Rupees Seventy two thousands) on this account. You are requested to make us payment of Rs. 72,000/- (Rupees seventy two thousand) being the cost of the above 175 bales of cotton.
Our Bill/Debit Note for Rs. 72,000/- is enclosed herewith.
Yours faithfully, for Fatehabad Cotton Ginning and Pressing Factory, Sd/- Partner.
Section 10 of the Carriers Act, under which such a notice is to be served on the Defendant before the filing of the suit, is to the following effect: "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 the 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 come to the knowledge of the Plaintiff." According to this provision, the following conditions must be satisfied before a suit against any common carrier for the loss or for injury to goods entrusted to him for carriage, is instituted:
(1) Notice must be in writing;
(2) It must be regarding the loss or injury incurred by the Plaintiff in the goods entrusted to the common carrier;
(3) Such a notice must be served on the Defendant before the filing of the suit; and
(4) The notice must be served within sis months of the date when the loss or injury first came to the knowledge of the Plaintiff.
According to the Learned Counsel for the Defendant, the notice, in order to be valid, must satisfy the following conditions:
(1) It should be clear from the notice that it is a statutory notice u/s 10 of the Carriers Act;
(2) Reasonable time must be given in the notice to the Defendant to make amends so that the latter may be able to satisfy the reasonable claim of the Plaintiff and the necessity of facing the suit may be obviated:
(3) It should be clear from the notice that if the claim is not satisfied, suit will be filed;
(4) The requirements of Order VI Rule 6, Code of Civil Procedure, be satisfied:
(5) It should be clear from the averments in the plaint whether the suit is being filed under the provisions of the Carriers Act, or under the common Law; and
(6) That the cause of action must be made clear in the said notice.
A perusal of the above-mentioned notice clearly shows that the Plaintiff No. 2 clearly brought to the notice of the Defendant that the goods booked with him with reference to the loading receipts mentioned in the said notice, had not reached destination and that the same had been burnt in transit, that on this account, the Plaintiffs had sustained a loss of Rs. 72,000/- and in the end, a request was made to the Defendant to pay the said amount of loss. To the notice, Exhibit, PW 9/1/A, reply, Exhibit DW 4/A, was received from the Defendant, in which the only objection taken was that the Defendant, was not liable to pay any loss to the Plaintiff as the consignment in dispute, was at owner''s risk. The notice, Exhibit, PW 9/1/A, had been served on the Defendant within time and before the filing of the suit. From a closer glance at Section 10 of the Carriers Act, it is clear that the contents of the notice, Exhibit P.W. 9/1/A, are in conformity with the requirements of the said provision. Section 10 of the Carriers Act, nowhere provides that, in the notice, it must be specified that it is notice, u/s 10 of the Carriers Act. Regarding the time, the only requirement is that the notice must be served on the Defendant before the filing of the suit and also within six months of the incurring of the loss or injury. Section 10 of the Carriers Act, nowhere provides that a minimum prescribed period roust elapse after service of the notice and before the filing of the suit. The purpose of this section is that before the soling of the suit, representation regarding the claim of the Plaintiff should reach the Defendant so that if the latter thinks fit, he may satisfy the claim of the Plaintiff and the suit may not be filed, but it cannot be spelt out from this provision that some specific time must be given to the Defendant to satisfy the claim of the plain- tiff. It is also not the requirement of this provision that the notice must specify the intention of the Plaintiff to file the suit. However, it is inherent in the notice itself that if the claim of the Plaintiff is not satisfied, the Plaintiff will file the suit and the Defendant will have to face the litigation. The contention of the Learned Counsel for the Defendant, has also no substance, that it should be specified in the notice whether the suit would be filed under the Carriers Act, or common law.
So far as the next contention of the Learned Counsel for the Defendant, that the cause of action should be explicitly mentioned in the notice, is concerned, it seems that the Learned Counsel has in mind the requirements of Section 80, CPC to my mind, the requirements of Section 80, CPC are quite different from the requirements of Section 10 of the Carriers Act, though the purpose of both the provisions appears to be the same. In a notice u/s 80, Code of Civil Procedure, the following particulars must be incorporated:
(1) The cause of action ;
(2) The name and description of place of residence of the Plaintiff, and the relief which be claims ; and
(3) A statement in the plaint to the effect that such a notice has been so delivered or left with the Defendant.
In a notice, u/s 10 of the Carriers Act, these technicalities may not be rigidly adhered to though substantially, the facts regarding the loss or injury have to be mentioned in the notice.
In support of his contention the Learned Counsel for the Defendant, relied upon River Steam Navigation Company Limited and another v. Hazarimal Multan Mal AIR 1918 Cal. 896, which renders no assistance to the case of the Defendant. In the said case, it was only held that service of notice is necessary even if the Defendants gets knowledge from other sources. The present case is not of that type Reliance was also placed on Amar Nath Dogra Vs. Union of India (UOI), , and The State of Madras v. C.P. Agencies and Anr. AIR 1960 S.C. 1809. In both these cases, the scope of section 80, Code of Civil Procedure, was under consideration. It was held that the object of Section 80, Code of Civil Procedure, was manifestly to give Government or the Public Officer concerned, sufficient notice of the case which is proposed to be brought at against it or him so that it or he may consider the position and decide for itself or himself If whether the claim of the Plaintiff should be accepted or resisted. In C.P. Agencie''s case (supra), it was also held:-
The terms of this section are to be strictly complied with.
That does not mean that the terms of the notice should be scruetinised in a pedantic manner or in a manner completely divorced from common sense.
Thus, these decisions are also of no help to the case of the Defendant
Reliance was then placed on Braham Dutt Vs. East Punjab Province and Others, wherein it was held that a notice which does not state the intention to file a suit will, not constitute a valid notice u/s 80, Code of Civil Procedure. This decision also cannot lend any strength to the case of the Defendant because Section 10, of the Carriers Act, is quite differently worded from section SO, Code of Civil Procedure, in this regard.
At one time, the Learned Counsel for the Defendant had challenged the validity of this notice on the ground that whereas in the notice of Plaintiff bad claimed Rs. 72,000/- as loss as a result of the goods having been burnt, yet the suit was filed only for Rs. 48,000/- Brahom Dutt''s case (supra), however, negatives this contention, where it has been held as under:-
A claim for a larger amount in the notice and its reduction in the suit does not change the cause of action or invalidate the notice.
It was further contended by the Learned Counsel for the Defendant, that it is the admitted case of the Plaintiff''s, that Plaintiff No 2, assigned his rights by a deed, in favour of the Assurance Company., Plaintiff No. 1, and have got full claim satisfied from the Assurance Company, Plaintiff No. 1, and therefore, it was essential for Plaintiff No. 1 to serve a separate notice u/s 10 of the Act, and the Notice P. W. 9/1/A, served by Plaintiff No. 2, cannot serve the purpose of notice u/s 10 of the Carriers Act, so far as the present claim of Plaintiff No. 1, is concerned. During arguments, it was also suggested that joint suit could not be filed by Plaintiffs Nos. 1 and 2. The Learned Counsel wanted to derive support from Sub-section (2) of Section 135A of the Transfer of Property Act. 1882. A closer scrutiny of this provision shows that where the loss, whether in whole or in part, is paid by the insurer, to the insured, then all the rights and benefits of the insured are subrogated to the insurer. This only shows that after subrogation or assignment of claim, the insurer is entitled to make a claim against Defendant and seek his remedy in accordance with law. Union of India v. M/S Bharat Fire and General Insurance Limited, New Delhi (1961) 63 P.L.R. 294, relied upon by the Learned Counsel, is also to the same effect, that is Sub-section (2) of Section 135-A. Transfer of Property Act, empowers the insures to file a suit in his own right after the conditions laid down therein have been satisfied, and that the consigner is not a necessary party in such a case. It has nowhere been laid down that the suit will be bad if consigner is made a party or is joined as Plaintiff. The Learned Counsel for the Plaintiffs, on the other hand relied upon Sri Sarada Mills Ltd. Vs. Union of India and Others, , wherein it was held in the case of a claim against railway that after the assignment the consignor and the insurance company, were entitled to file the suit.
The Learned Counsel for the Defendant, also raised the following contentions:
(1) That the Defendant is a co-operative society and as such, no suit could be filed unless a notice u/s 79, Co operative Societies Act, had been served on the Defendant ;
(2) That the plaint had not been properly framed ; (3) That a joint suit could not be filed by Plaintiff No. 2, the consigner, and the insurance company. I am afraid, these contentions have no relevance so far as the present reference is concerned. The entire suit is not before this Court. The reference is by the Arbitrator u/s 11(b) of the Act, only with regard to the validity of the notice, Exhibit P.W. 9/1/A in the light of the provisions of Section 10 of the Carriers Act.
In view of the above discussion, I am clearly of the view that the notice, Exhibit P.W. 9/1/A, fully satisfies the requirements of Section 10 of the Carriers Act.