PATEL TRADERS Vs. PATEL AMBARAM THAKARSHI

JUDGEMENT

(1.) 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.

(2.) 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 under section 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 plaintiffs suit only on the ground that the suit was bad for want of a notice under sec. 10 of the Carriers Act.

(3.) I have gone through the judgment particularly paragraph 10 thereof and I agree with the learned trial Judge that the plaintiff can he 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 under sec. 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 Sec. 10 applies or not. According to Mr. R. D. Vyas Sec. 10 does not apply because it is confined to loss or damage and not to non-delivery. He read Secs. 9 and 8 in conjunction with Sec. 10 and urged that whereas Secs. 8 and 9 spoke of non-delivery also Sec. 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 & Anr. v. M/s. K. Mansukhram & Sons 20 GLR p. 333. There a similar question in respect of Section 77B of the Indian Railways Act was before me. I held that bar in Sec. 77B did not deal with non-delivery. I had also referred to Sec. 77 and 77A in that regard. Sec. 77 and 77A specifically mentioned loss destruction damage deterioration or non-delivery as the grounds occasioning the claim for damages. In Sec. 77 non-delivery is not mentioned. The same authority would analogically apply in the case of non delivery. 4 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. Application allowed.