RSA No. 2621 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 2621 of 2007 Date of decision: February 16,2009 M/s Patel Roadways Limited ..Appellant. Versus M/s Seatron Capacitors Private Limited ..Respondent Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr. Ashok Sharma, Advocate for the appellants Mr. Anil Shukla, Advocate for the respondents. .. Rakesh Kumar Garg,J. This is defendant's second appeal challenging the judgment and decrees of the courts below whereby the suit of the plaintiff-respondent for recovery of Rs. 1,18,289.81 along with pendentelite and future interest at the rate of 12 % p.a. has been decreed. The plaintiff instituted a suit for recovery of Rs. 1,18,289.81 against the appellant, who is a common carrier, engaged in the business of transporting the goods for hire from one place to another. The plaintiff had booked two consignments on 19.3.1993 and 22.3.1993 from Faridbad to Coimbatore for transportation. Vide letter dated 19.4.1993, the appellant informed the plaintiff that the booked consignments were destroyed due to fire at the U.P. Border godown. As per averments made in the plaint, the said godown was not situated on Faridbad to Coimbatore way and it was a lame excuse on the part of the appellant that the goods were destroyed on account of fire and plaintiff was not bound to prove negligence on the part of defendants as per law applicable to common carriers. Later on, vide letter dated 19.4.1993, the defendant/appellant informed the plaintiff that goods could not reach its destination and asked the plaintiff to send some documents and information to settle the compensation RSA No. 2621 of 2007 2 and also assured the plaintiff that they were entertaining its claim and promised to pay to the plaintiff as early as possible. The plaintiff had written letters to the defendants dated 29.4.1993 and 30.4.1993 which were duly received. It was further submitted that it was agreed between the parties that in case of any damage or loss of goods, defendant will be liable to pay the declared value of goods and other charges as well as damages. The plaintiff lodged its claim with defendants vide letter dated 30.4.1993 and asked them to settle the matter but of no help. Hence this suit. The defendants in their written statement challenged the suit preliminary on the grounds of limitation, cause of action, misjoinder of parties, court fee and jurisdiction. It was further submitted that no prior notice under the Carrier Act was served upon the defendant-appellant prior to the institution of the present suit. On merits, it was admitted that the consignments were to be transported by the appellant at the risk of the plaintiff and plaintiff also undertook and agreed that in case of loss or damage due to any reason, defendants shall not be liable to make good the loss. It was further submitted that the consignment was destroyed in fire and the matter was reported to the police. It was denied that the plaintiff had declared the value of goods and the invoices and letters were stated to be false. Dismissal of the suit was prayed for. After hearing learned counsel for the parties and perusing the evidence on record, the trial Court decreed the suit of the plaintiff-respondent for a sum of Rs. 1,18,289.81 along with pendentelite and future interest at the rate of 12 % p.a. Feeling aggrieved with the aforesaid judgment and decree of the trial Court, the appellant filed an appeal, which was also dismissed by the lower Appellate Court vide impugned judgment and decree dated 3.5.2007. Still not satisfied, the appellant has filed the present appeal challenging the judgment and decrees of the courts below in this court. Learned counsel for the appellant has vehemently argued that the courts below have erred at law while decreeing the suit as the same was filed RSA No. 2621 of 2007 3 after the expiry of limitation period. Elaborating his arguments further, the counsel for the appellant has argued that the loss to the consignments was caused on 23.3.1993 whereas the suit was filed on 25.3.1996 and therefore, it is apparent that the same was barred by limitation. Learned counsel has also argued that notice under Section 10 of the Carrier Act, 1996 (for short “the Act”) was mandatory and in this case no such notice before filing the suit has been given. Thus on the basis of these contentions, learned counsel for the appellant has argued that the following substantial questions of law arises in this appeal:- 1) Whether the present suit filed by the respondent against the appellant is within limitation period? 2) Whether the non-compliance of the mandatory provisions of the Civil Procedure Code as well as Carriers Act can be ignored while passing a money decree ?” He has further argued that the appeal is liable to be accepted and the suit of the plaintiff-respondent is liable to be dismissed. On the other hand learned counsel for the respondent has vehemently argued that the courts below on appreciation of evidence have recorded a concurrent finding of fact that the suit was filed in the court on 18.3.1996 i.e., within three years of the delivery of goods and as such the suit was well within limitation and the notice under Section 10 of the Act was served within the stipulated period of 6 months, from the date, the loss came to the knowledge of the plaintiff and thus the appeal is liable to be dismissed. I have heard learned counsel for the parties. It is a matter of record that the present suit was filed by the plaintiff- respondent in the trial Court on 18.3.1996 whereas the consignments were delivered to the appellant on 19.3.1993 and 23.3.1993, thus on the face of the record, it cannot be said that the suit was barred by limitation. Learned counsel for the appellant has tried to argue that in fact the proper court fee was affixed by the plaintiff-respondent on 25.3.1996 and therefore, the date of institution of the RSA No. 2621 of 2007 4 suit has to be taken from that date i.e., 25.3.1996 and thus, the suit was beyond limitation. No such plea as sought to be raised now before this court was raised by the appellant before the lower Appellate Court. In fact the question of limitation was not argued by the appellants before the lower Appellate Court. Even before this court, in the grounds of appeal, it has been mentioned only that the loss to the consignment was caused on 23.3.1993 and the suit was filed on 25.3.1996. It is well settled that plea of limitation is a mixed question of law and facts. Learned counsel for the appellant was unable to support his argument from the record of the case. Even otherwise, in the case of Bachhaj Nahar Versus Nilima Mandal and another JT 2008 (13) SC 255, the Hon'ble Supreme Court of India has authoritatively laid down that the question of law on an issue based upon facts which were not before the courts below cannot be raised in the Regular Second Appeal. So far as the second contention of the appellant is concerned, the same is also without any merit. The courts below have recorded a concurrent finding of fact that vide letters Ex. P-6 and P-7, the plaintiff-respondent in an unambiguous terms disclosed its intention to recover the amount from the appellant and to register its claim and called upon the appellant to remit the money. It is useful to refer to Section 10 of the Carriers Act, 1996, which is as under:- “10.- Notice of loss or injury to be given within six months.- 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 came to the knowledge of the plaintiff.” A perusal of the aforesaid provision shows that the only requirement of Section 10 is that a notice in writing of the loss or injury is to be given to the carrier before the institution of the suit and within six months of the RSA No. 2621 of 2007 5 time when the loss or injury first came to the knowledge of the plaintiff. From the aforesaid provisions, it can safely be inferred that the purpose of issuing notice to the carrier is to bring to his notice that the goods entrusted to him for carriage have been lost or destroyed and the consigner intends to claim damages for that. From the facts of the present case, it may be seen that the goods were destroyed in the fire which broke out in the godown of the carrier/defendant itself and it was the carrier himself who informed the plaintiff-respondent vide letter dated 19.4.1993 that goods consigned by him have been destroyed in fire. Moreover, vide letters dated 29.4.1993 and 30.4.1993 Annexures P-6 and P-7, the plaintiff registered his claim for compensation with the appellant. In these letters, plaintiff-respondent has specifically alleged that since the transporter was responsible for delivery of goods in intact condition, he was bound to compensate the plaintiff and a request was made to register the claim of the plaintiff for remitting the amount of compensation . Thus in these circumstances, there was no necessity to serve the notice upon the appellant prior to the filing of the suit. Moreover, it need not be specified in the notice that it is a notice under Section 10 of the Act. Section nowhere provides that a minimum prescribed period must elapse after service of the notice and before filing of the suit. It cannot be spelt from the section that some specific time must be given to the carrier to satisfy the claim. It is also not the requirement of the provision that notice must specify intention of the plaintiff to file the suit. In taking the aforesaid view, I am supported by a judgment of this court in the case of M/s The Jalandhar Ex. Servicemen Motor Transport Co-operative Society Ltd. Versus The General Assurance Society Ltd., Calcutta and another- AIR 1978 Punjab and Haryana 336, wherein the question arose whether a notice under section 10 had been served by the plaintiff on the defendant or not. The plaintiff had produced on record some letters sent by him to the defendant. The dispute arose between the parties whether it could be considered a notice under Section 10 of the Carriers Act and it was held that the letters sent by the plaintiff to the defendant fully satisfied the requirement of Section 10 of the Carriers Act. Thus RSA No. 2621 of 2007 6 testing the facts of the case on these principles, it can be safely inferred that the provisions of Section 10 of the Act, 1996 have been complied with in this case. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. February 16,2009 (RAKESH KUMAR GARG) nk JUDGE