BAFNA ROTHERS Vs. SAVANI TRANSPORT PVT LTD

JUDGEMENT

(1.) This appeal is directed against the judgment dated 18th August, 1986 passed by the learned Additional District Judge, Kamrup, Gauhati setting aside the judgment and decree dated 16.12.1983 passed by the learned Assistant District Judge No. 1 at Gauhati in Money Suit No. 68 of 1979. The only point on which the learned Additional District Judge has allowed the appeal was that notice under Section 10 of the Carriers Act, 1865 was not served upon the defendants.

(2.) Heard Mr. S.S. Sharma, learned counsel along with Mr. K.K. Bhatra, learned Advocate on behalf of the appellant. None appears for the respondents. I have perused the memo of appead and Judgments of the Courts below.

(3.) Mr. Sharma, learned counsel in course of the argument has drawn my attention to the case U Ba Tin and another appellants -Vs- U. Tun On and another-respondents, reported in AIR 1938 Rangoon 437. In the aforesaid decision it has been held that in a suit against persons alleged to be common carriers within the meaning of the Carriers Act, for the loss or injury to goods entrusted to them for carriage, it is not: necessary for the plaintiff, as in the case of Section 80 Civil Procedure Code, to expressly state in the plaint that he has issued a notice under Section 10 of Carriers Act. Such an averment is implied under Order 6 Rule 6 Civil Procedure Code, and it is for the defendants to deny in their written statement according to Order 8 Rule 2, that they are common carriers or to raise the plea of the absence of notice. Where they fail to do so, the onus is on them to prove and to show that they took good care in the carriage of the plaintiffs goods.