Patel Traders vs Patel Ambaram Thakarshi

N.H. Bhatt, J.—This is a revision application by the original plaintiff of the Civil Suit No. 17 of 1976 decreed in their favour by the learned

trial Judge, namely, the Civil Judge, Junior Division, Surendranagar. It was a suit for money i.e. price of goods taken over by the Malod Transport

owned by the defendant No. 2 for transport. The decree was only against the defendant No. 2 and the suit was dismissed against the original

defendant No. 1.

Being aggrieved by the aforesaid decree, the original defendant No. 2 preferred Civil Appeal No. 30 of 1978 in the District Court at

Surendranagar where the learned Judge allowed it, not on merits but on a technical plea of no notice having been given u/s 10 of Carriers Act. The

learned appellate Judge certainly held that the plaintiff proved that the defendant No. 2 was liable for the loss of goods transported by it. So the

appellate Judge concurred the trial Judge on this first issue. He, however, allowed the appeal and consequently dismissed the plaintiff''s suit only on

the ground that the suit was bad for want of a notice u/s 10 of the Carriers Act.

I have gone through the judgment, particularly paragraph 10 thereof and I agree with the learned trial Judge that the plaintiff can be said to have

the knowledge of the wrong delivery made by the carrier and that this knowledge was acquired by the plaintiff atleast before the end of the year

1973. So if a notice u/s 10 of the Carriers Act is necessary, then the notice given for the first time on 9-9-1974 would obviously attract the bar

contained in provisions of Section 10 of the Carriers Act. But the question is whether Section 10 applies or not. According to Mr. R.D. Vyas,

Section 10 does not apply because it is confined to loss or damage and not to non-delivery. He read Sections 9 and 8 in conjunction with Section

10 and urged that whereas Sections 8 and 9 spoke of non-delivery also Section 10 referred to only loss or damage but not to non-delivery. Mr.

Vyas invited my attention to my judgment in the case of Union of India and Anr. v. K. Mansukhram & Sons 20 GLR 333. There a similar question

in respect of Section 77B of the Indian Railways Act was before me. I held that bar in Section 77B did not deal with non-delivery. I had also

referred to Section 77 and 77A in that regard. Section 77 and 77A specifically mentioned loss, destruction, damage, deterioration or non-delivery

as the grounds occasioning the claim for damages. In Section 77, non-delivery is not mentioned. The same authority would analogically apply in the

case of non-delivery.

The result is that the revision application is allowed by quashing the impugned order of the District Court and restoring that of the learned trial

Judge. Rule is accordingly made absolute with no order as to costs.