IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11 .11.2009 C O R A M THE HONOURABLE MR.JUSTICE C. NAGAPPAN Appeal Suit No.916 of 2004 and CMP.No.13151 of 2004 1. M/s. Prakash Transports 100, Mosikiranar Street, Indira Nagar, Erode-638 003. 2. Prakash Transports by its Partner Ajay Goel, Calcutta. 3. I.P.Goel Partner of M/s.Prakash Transports 4. Ajay Goel 5. Naresh Goel, Partner of M/s.Prakash Transports Appellants 2 to 5's Head Office at P-17, New C.I.T.Road, Calcutta-700 073. ... Appellants/ Defendants 1 to 5 Vs 1. Lakshmi Exports, by its Power of Attorney Agent C.Ravichandran .. Respondent No.1/Plaintiff 2. M/s.Prakash Transport Nepal (P) Ltd. 3. S.N.Gupta Director M/s.Prakash Transports Nepal (P) Ltd., Kathmandu. ... Respondents 2 & 3/ Defendants 6 and 7 Appeal against the judgment and Decree dated 30.3.2004 made in O.S.No.124 of 2002 on the file of the Additional District Judge, Fast Track Court No.1, Salem. For Appellants ... Mr.M.A.Sadanand For Respondents ... Mr.A.P.Srinivas Babu for R1. No appearance for R2 and R3 ----- J U D G M E N T Defendants 1 to 5 have preferred this appeal challenging the judgment and Decree dated 30.3.2004 made in O.S.No.124 of 2002 on the file of Additional District Judge, Fast Track Court No.1, Salem. 2. The first respondent herein filed the suit against defendants 1 to 7 praying for judgment and Decree directing the defendants to pay a sum of Rs.13,03,240/- with subsequent interest jointly and severally and also out of the assets of the defendants 1, 2 and 6. 3. The case of the plaintiff is that M/s.Bhandari Garments Ind., of Kathmandu in Nepal placed orders with it for supply of export fabrics and as per the orders, the plaintiff despatched fabrics for the total value of Rs.9,63,465.10 under three Invoices to Kathmandu. It is further stated in the plaint that the first defendant is the Branch office and the second defendant is the Head office of the lorry transport and the defendants 3 to 5 are the Partners of the defendants 1 and 2 and they have their sister concern at Kathmandu which was run by defendants 4 and 7 as Directors of sixth defendant. The plaintiff has further stated that the first defendant made representation to the plaintiff that they have Branch office at Kathmandu and they would sincerely take delivery of the consignments from Salem to be delivered at Kathmandu and on believing their representation the plaintiff sent the consignments from Salem to Kathmandu and the first defendant had taken delivery of the consignments to the total value of Rs.9,63,465.10. According to the plaintiff, the Invoices and documents were sent to M/s.Rastriya Banijya Bank, Kathmandu through plaintiff's Bankers viz., Canara Bank, Salem and the plaintiff learns that the consignments have reached Kathmandu and without the knowledge of the plaintiff the defendants appear to have either sold or delivered the goods to the consignee or third party and should have appropriated the value thereof and their action is liable for criminal action apart from civil liability to pay the value of the consignments with interest at the rate of 12% per annum. The plaintiff has further stated that inspite of several demands by phone and fax message the defendants have been giving evasive replies and considering the business relationship with the defendants the plaintiff believed their representations and assurances and the first defendant sent a copy of their letter dated 14.2.1997 stating that he has informed their Kathmandu office for taking necessary action to make the payments to the plaintiff. It is further stated by the plaintiff that it sent a letter dated 15.7.1997 to the first defendant directing him to settle the claim and it was not done and hence the plaintiff has filed the suit for recovery of the amount of Rs.9,63,465.10 from the defendants being the value of three consignments taken by the defendants with interest at the rate of 12% per annum. 4. The defendants 1 to 5 in the written statement have admitted that the first defendant has Branch office at Kathmandu and the defendants 3 to 5 are Partners of defendants 1 and 2 and they have further stated that the defendants 6 and 7 are the Transport Companies functioning at Nepal and the consignments sent through the defendants 1 and 2 would be entrusted to sixth defendant for onward transportation to Kathmandu for delivery to consignee. It is further stated in the written statement that the plaintiff has despatched three consignments under L.R.No.5509 dated 9.11.1994, L.R.No.5574 dated 19.11.1994 and L.R.No.5568 dated 28.11.1994 and the booked consignments of the plaintiff have been duly transported to the other end and entrusted to sixth defendant for onward transport to Kathmandu to effect delivery to the consignee and it appears that the consignments have reached Kathmandu office and the same was lying in the godown without taking delivery by the consignee and the consignments had not taken delivery on the ground that there was dispute between the consignee and the consignor. It is further stated in the written statement that the letter dated 15.7.1997 sent by the plaintiff to the first defendant is not a proper notice as contemplated under the Carriers Act and on this ground the suit is not maintainable. The defendants have further stated that the plaintiff is aware of the fact that notice claiming damages, compensation for the loss of goods or non-delivery of the goods by the Carrier should be given within six months and that was not done and hence the suit claim is unsustainable. The defendants 6 and 7 remained exparte in the suit. 5. The trial Court framed four issues and the plaintiff examined P.W.1 Ravichandran and marked Exs.A1 to A9 on its side and the defendants 1 to 5 examined its Assistant Manager Raja as D.W.1 and no document was marked on their side. On a consideration of oral and documentary evidence, the Trial Court held that the plaintiff has proved the suit claim and granted Decree directing the defendants jointly and severally to pay the plaintiff a sum of Rs.9,63,465/- with further interest at the rate of 12% per annum from 8.11.1997 to 30.3.2004 and thereafter at the rate of 6% per annum till realisation with costs. Challenging the judgment and Decree, defendants 1 to 5 have preferred the present appeal. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit. 6. The Points for determination in this appeal are:- (1) Whether the suit is barred by the provision of Section 10 of the Carriers Act. (2) Whether the plaintiff is entitled to the suit claim. POINT NOS.1 AND 2 7. Mr.Sadanand, learned counsel for the appellants/defendants 1 to 5, submits that Notice under Section 10 of the Carriers Act, 1865 which is mandatory pre-condition to the filing of the suit was not issued to the Carrier and hence the suit is not maintainable and the non-delivery of goods was on account of refusal of the consignee to take delivery due to some dispute between the consignor and the consignee and the defendants are not liable to pay the value of the consignments and the judgment and Decree of the trial Court are liable to be set aside. 8. Per contra, the learned counsel for the first respondent/plaintiff submits that Section 10 of the Carriers Act requires notice for initiation of proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage and the requirement relating to notice will not apply to the suit claim based on non-delivery and the Carrier did not inform the plaintiff about the status of the goods inspite of demands and at last the plaintiff issued a notice dated 15.7.1997 to the first defendant directing him to settle the claim and there was no reply, pursuant to which the suit came to be filed for recovery of the value of the consignments and the Decree granted by the Trial Court is sustainable on facts and law. In support of his submission, the learned counsel relies on the decision of the Supreme Court in TRANSPORT CORPN. OF INDIA LTD. V.. VELJAN HYDRAIR LTD. [(2007) 3 SCC 142]. 9. It is not in dispute that the plaintiff despatched fabrics under three Invoices to Kathmandu and the first defendant Carrier took delivery of the consignments at Salem to be delivered at Kathmandu to the consignee. Exs.A2 to A4 are the Invoices of the Fabrics and the total value is Rs.9,63,465.10. Exs.A5 to A7 are the Lorry Receipts issued by the first defendant Carrier. According to the plaintiff, the Invoices and documents were sent by the plaintiff through its Bankers to M/s.Rastriya Banijya Bank, Kathmandu and the plaintiff reliably learns that the consignments have reached Kathmandu but without the knowledge and consent of the plaintiff the defendants appear to have sold or delivered the goods to the consignee or third party and should have appropriated the value thereof. 10. The plaintiff is a Proprietorship Concern and PW.1 Ravichandran is the husband of the proprietor and he has testified about the entrustment of the goods with the first defendant Carrier for transportation from Salem to Kathmandu. Ex.A8 is the letter dated 14.2.1997 written by the first defendant to the sixth defendant, a copy of which is addressed to the plaintiff. In that letter, the first defendant has stated that the plaintiff is an important client of them and inspite of his communication through telephone and fax message no response is coming from the sixth defendant for the past three years and necessary action to finalise the matter by effecting settlement, is pleaded. Ex.A9 is the notice dated 15.7.1997 issued by the plaintiff to the first defendant directing him to make the total payment. 11. No document was marked on the side of the defendants and they have examined their Assistant Manager Raja as DW.1. In his oral testimony, DW.1 has admitted the entrustment of the consignments of the plaintiff with them for transportation to Kathmandu. The only contention of the defendants is that the consignee at Kathmandu did not take delivery of the goods on the ground of some dispute between the consignee and the consignor. No document was filed on the side of the defendants to show that they have communicated the state of affairs to the plaintiff. On the other hand, the defendants have admitted in their Ex.A8 letter that the plaintiff was repeatedly enquiring about the fate of the consignments. 12. The Supreme Court in the decision in TRANSPORT CORPN. OF INDIA, referred to supra, dealt with the requirement relating to notice under Section 10 of the Carriers Act to a claim based on non- delivery and laid down that Section 10 will not apply to such a claim. For better appreciation, the relevant paragraphs of the Judgment are extracted below. "7. ..... Section 10 requires a notice in the manner set out therein, for initiation of a proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section 10 of the Carriers Act, 1865. It is sufficient if the notice fulfils the requirement of Section 10, that is to inform the carrier about the loss or injury to the goods. Such notice under Section 10 will certainly be required where the common carrier delivers the goods in a damaged condition, or where the common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor/consignee/owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor/consignee, will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in Section 10 will not apply to a claim based on such non-delivery. In fact Section 10 does not use the word "non-delivery" of goods, but uses the words "loss of, or injury to, goods". A case of "non-delivery" will become a case of "loss" of consignment, only when the common carrier informs the consignor/consignee about the loss of the consignment. 8. In Arvind Mills, relied on by the appellant, this Court held that the word "suit" used in Section 10 will include a complaint under the Consumer Protection Act, 1986 and that in the absence of a notice under Section 10 of the Carriers Act, a complaint against a common carrier for compensation for loss suffered by the complainant cannot be entertained. But that decision did not relate to a claim regarding non-delivery of the consignment, where the carrier failed to inform that the goods have been lost. The said decision does not, therefore, help the appellant. 9. In this case, the appellant carrier did not inform the respondent that the goods were lost. The respondent was constantly in touch with the appellant and demanding delivery. By letters dated 15-12-1998, 21-6-1999 and 3-7-1999, the appellant repeatedly informed the respondent that it was in the process of locating the goods, sought time to report about the status and requested the respondent to wait. Even when the respondent issued a notice through counsel on 27-10-2000 (served on 30-10-2000) demanding the cost of the consignment, the appellant did not say that the consignment was lost. In such circumstances, it is not possible to attribute knowledge of "loss" to the person instituting the action for non-delivery. Therefore, there was no need to issue a notice under Section 10, and non-issue of a notice under Section 10, did not invalidate the claim or the complaint." The above decision squarely applies to the facts of the present case. 13. As already seen, there is no loss or injury to the goods of the plaintiff and the first defendant Carrier had failed to inform the person entitled to delivery viz. the consignor, the status of the goods and the claim by the consignor will not be for loss or injury to goods but for non-delivery of goods. In such circumstances, Section 10 of the Carriers Act will not apply to the suit claim based on such non-delivery. The Trial Court has rightly appreciated the evidence available on record and has held that the plaintiff is entitled to the suit claim viz. value of consignments. The interest awarded is also just and proper in the facts and circumstances of the case. No interference is called for in the conclusion reached by the trial Court. The Point Nos.1 and 2 are determined accordingly. 14. There are no merits in the appeal and the same is dismissed. However, there shall be no order as to costs. Connected CMP.No.13151 of 2004 is also dismissed. vks To 1. The Additional District Judge, Fast Track Court No.1, Salem. 2. The Section Officer, V.R.Section, High Court, Madras