Judgment :- P.P.S. Janarthana Raja, J. Appeal is filed against the judgment and decree dated 27.01.2003 made in O.S.No.186 of 1998 on the file of the II Additional Sub Judge, Coimbatore. 2. The brief facts in a nutshell are as follows: The appellants are plaintiffs in the suit. The respondent is the defendant. The first appellant is the Insurance Company, a subsidiary of General Insurance Corporation of India, carrying on the business of General Insurance. The second appellant is the company incorporated under the Companies Act. The second appellant placed an order with the consignor M/s Hindustan Hydraulics Private Limited, G.T.Road, Suranussi, Jalandhar for purchase of C.N.C. Press Brake Type EHP-260 43/37 machinery with accessories. As per the consignors invoice dated 14.03.1995, the total value of consignment is Rs.69, 28,698.92 and the same was sent to the second appellant consignee. The said consignment was entrusted to the above respondent public carrier in L.R.No.17937 dated 14.03.1995 for being transported from Jalandhar to Coimbatore. When the said consignment reached the destination on 17.04.1995, it was found that there was a shortage and damage to the machinery and accessories. It is stated that the respondents lorry, in which, the consignment was carried, met with an accident on 02.04.`1995 near the Shoolagiri, Dharmapuri District, Tamil Nadu, which occurred due to the negligence of the driver of the respondents lorry. After the damage of goods, once again the goods were transferred by the respondent to another lorry by their workers and before it reached the destination, it further aggravated the damage. Therefore, before effecting delivery of goods to the consignee, the same were surveyed on 03.05.1995 by M/s Sundaram Associates, the licensed Insurance Surveyor and they assessed the loss in the presence of the consignors representative one Sudesh Sharma, the consignees representative R. Arumugham and C. Narayanasamy, a representative one Gopalkumar from East West International Marketing and the respondents representative and agent R.Thanjaraj and details of inspection and minute book were furnished to the defendant by the consignee-second plaintiff. The respondent had issued a certificate of damage admitting the damage caused to the goods and also shortage in goods delivered. Later, the second appellant requested the respondent to pay compensation for the damage, but the respondent though acknowledged the same, has failed to make good the loss. The second appellant had insured the goods with the first appellant under Policy No.4131000/21/0/11/95/1429. Later, the second appellant requested the respondent to pay compensation for the damage, but the respondent though acknowledged the same, has failed to make good the loss. The second appellant had insured the goods with the first appellant under Policy No.4131000/21/0/11/95/1429. As there was no response from the respondent to settle the claim made by the second appellant, they made a demand on the first appellant by enforcing the policy. The first appellant settled the claim as per the final assessment by paying a sum of Rs.49, 87,277/- to the second appellant, as the second appellant had a right of action against the respondent for recovery of the total value of the loss due to the damage and shortage of delivery of the goods, which was due to the negligence of the respondent. The second appellant had already been reimbursed of the loss by the first appellant. So the second appellant has also subrogated its right to the first appellant. Inspite of repeated reminders by the first appellant, there was no settlement by the respondent. Therefore, the first appellant sent a legal notice dated 17.02.1998 to the respondent demanding Rs.49, 87,277/-with interest at 18% per annum from the date of delivery of the goods-consignment till the date of payment. But there was no response from the respondent. Therefore, a suit was filed in O.S.No.186 of 1998 with the following prayer: (a) directing the defendant to pay the first appellant the sum of Rs.49,87,277/-with interest at 18% per annum from the date of suit till realisation; (or) alternatively directing the respondent to pay the said sum with future interest to the second appellant with the direction that the first appellant be re-imbursed by the second appellant of the said sum realised from the respondent; (b) directing the respondent to pay the costs of the suit and (c) granting such other and further reliefs. 3. The respondent filed a written statement denying all the allegations and further stated that the respondent is a public carrier, which is engaged in the business of transportation of goods by road to various destinations and has branches all over the Country and one such branch at Coimbatore. On 14.03.1995, M/s Hindustran Hydraulics (P) Limited, Jalandhar had entrusted with the respondent a consignment to carry one C.N.C. Press Brake machinery with the accessories to be transported and delivered to the second appellant at Coimbatore. On 14.03.1995, M/s Hindustran Hydraulics (P) Limited, Jalandhar had entrusted with the respondent a consignment to carry one C.N.C. Press Brake machinery with the accessories to be transported and delivered to the second appellant at Coimbatore. In the present case, the consignor specifically requested that the consignment to be carried at owners risk and agreed upon that the carrier would not be liable or held liable for any loss during transit. In view of the specific contract between the consignor and the respondent, they had agreed to transport the goods and they cannot be held liable to pay any damages or compensation for shortage of delivery in the consignment. The respondent submits that the accident was not because of any fault on the part of the respondents driver and the contention that the accident had occurred due to negligence on the part of the driver of the respondent is false and baseless. The respondent further submits that no notice in writing has been given as contemplated under Section 10 of the Carriers Act. The damage certificate dated 06.07.1995 having been secured from the respondent on false representation and by collusion, the same is not binding upon the respondent. The respondent is not liable to pay any amount to the appellants nor liable to pay any interest and there are no merit in the suit and sought to dismiss the same. 4. On pleadings, the trial Court framed the following issues: (1) Whether there is any specific contract between the respondent and M/s Hindustan Hydraulics Private Limited, the consignor. If so, who is liable to pay the damage caused to the machinery? (2) Whether the damage caused is due to negligence of the respondent? (3) Whether there is any prior notice sent to the respondent carrier? (4) Whether the damage certificate was obtained by the second appellant by misrepresentation or fraud? (5) Whether there is proper assessment of the damage? Whether the assessment is excessive? (6) Whether the appellant is entitled to 18% interest? (7) Whether the first appellant is entitled to compensation? (8) Whether the appellants are entitled to any alternative relief as prayed for in the plaint? (9) If any other relief? Before pronouncement of the judgment, the trial Court framed the additional issues, which are as follows: (1) Whether the notice in writing has been sent to the respondent under Section 10 of the Carriers Act? (8) Whether the appellants are entitled to any alternative relief as prayed for in the plaint? (9) If any other relief? Before pronouncement of the judgment, the trial Court framed the additional issues, which are as follows: (1) Whether the notice in writing has been sent to the respondent under Section 10 of the Carriers Act? (2) Whether the suit is maintainable? 5. After considering the argument advanced by both sides, the trail Court was of the view that there is no specific agreement entered into between the respondent carrier and the consignor. So the respondent is liable to pay compensation. However, the trial Court dismissed the suit on the ground that no notice in writing has been given to the respondent as contemplated under Section 10 of the Carriers Act, before instituting the suit and therefore, the suit was dismissed as not maintainable. Aggrieved by that order, the appellant has filed the present appeal. 6. The learned counsel appearing for the appellants contended that the order passed by the trial Court is illegal, wrong, without basis and justification. He further submitted that the appellant had sent statutory notice under Section 10 of the Carriers Act of 1865 to the respondent. He further submitted that there is no specific form, in which notice of loss should be given and there is sufficient proof of notice of loss in view of Exs.A5 and A6 as well as B1 and B2 and also it should be construed as notice under Section 10 of the Carriers Act. These exhibits clearly indicate that the respondent knew the damage and loss to machinery and accessories and in support of his contention, he relied on the judgment of the Apex Court in the case of P.Rama Rao Vs. P.Nirmala And Others Reported In (1997) I Supreme Court Cases 757, Kerala High Court In The Case Of M/S Kerala Transport Company Vs. Apollo Cables Private Limited Reported In Air 1986 Kerala 219, Madhya Pradesh High Court In The Case Of M.P.Rajya Beej Avam Farm Vikas Nigam Vs. M/S Shri Durga Transport Service, Banapura District, Hoshangabad Reported In Air 1996 Madhya Pradesh 208; In The Case Of (2004) 11 Supreme Court Cases 545 Reported In (Arvind Mills Ltd., Vs. Associated Roadways); In The Case Of Air 1970 Supreme Court 1654 Reported In Parasramka Commercial Company Limited Vs. M/S Shri Durga Transport Service, Banapura District, Hoshangabad Reported In Air 1996 Madhya Pradesh 208; In The Case Of (2004) 11 Supreme Court Cases 545 Reported In (Arvind Mills Ltd., Vs. Associated Roadways); In The Case Of Air 1970 Supreme Court 1654 Reported In Parasramka Commercial Company Limited Vs. Union Of India And In The Case Of (2001) 1 Law Weekly 756 Reported In (Nath Bros. Exim International Limited Vs. Best Roadways Ltd.,). Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside. 7. The learned counsel appearing for the respondent contended that the appellants have not established that they sent notice under Section 10 of the Carriers Act before filing the suit seeking damages and compensation. He further submitted that no evidence was produced before the trial Court regarding Ex.A12-acknowledgement card, which was not related to the said letter dated 25.04.2005. He also submitted that the appellants had failed to establish that the alleged notice dated 25.04.1995 was served on the respondent and the finding given by the trial Court is based on valid material and the same has to be confirmed. 8. We heard the arguments of the learned counsel appearing on either side and perused the materials on record. PW1 is one Sunitha, who is the Assistant Manager, Oriental Insurance Company. PW2 is one Chinnakannu, who is the Insurance surveyor and filed the Inspection report after due enquiry about the accident. PW3 is one Sundararaman, who is the Surveyor. On the side of the appellants Exs. A1 to A24 were marked. On behalf of the respondent one Rajkumar, who is the Branch Manager of the respondent was examined. On their side, Exs. B1 and B2 were marked. 9. The respondent is a company incorporated under the Carriers Act, which is a public carrier engaged in the business of transportation of goods by road to various destinations. It has branches all over the country and one such branch is at Coimbatore. The consignment of goods is machinery with accessories. On 14.03.1995, the consignor Hindustan Hydraulics (P) Limited, Jalandhar had entrusted the consignment viz., C.N.C. Press Brake machinery with accessories, with the respondent for transporting and delivering the same to the second appellant at Coimbatore. It has branches all over the country and one such branch is at Coimbatore. The consignment of goods is machinery with accessories. On 14.03.1995, the consignor Hindustan Hydraulics (P) Limited, Jalandhar had entrusted the consignment viz., C.N.C. Press Brake machinery with accessories, with the respondent for transporting and delivering the same to the second appellant at Coimbatore. The respondents lorry in which the machinery intended for the second appellant met with an accident on 02.04.1995 in Dharmapuri District, Tamil Nadu. The consignment actually reached the destination on 17.04.1995. There was a shortage as well as damage to the consignment. Joint survey was held on 03.05.1995 by one Sundararaman, who is PW3. He assessed the loss in the presence of the consignors representative, the consignees representative, a representative from East West International Marketing and the respondents representative and agent. Ex.A12 is the photograph taken at the accident spot. Ex.A4 is the copy of the First Information Report in Crime No.126 of 1995 of Soolagiri Police Station. Ex.A6 is the Damage Certificate issued by the respondent. The consignor has also given estimation of the damage, which is marked as Ex.P9. In this appeal, the questions for consideration are as follows: (1) Whether the defendant has been served with notice under Section 10 of the Carriers Act? (2) Whether Exs.A5, A6 and Exs.B1 and B2 can be construed as notice under Section 10 of the Carriers Act? 10. In respect of first question, the relevant provision of law is Section 10 of Carriers Act, which reads as follows: "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 (including container, pallet or similar article of transport used to consolidate 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." 11. Section 10 imposes three conditions. They are as follows: "(1) There should be notice in writing. Section 10 imposes three conditions. They are as follows: "(1) There should be notice in writing. (2) The same should be given to the respondent before institution of the suit and (3) The same should be given within six months of the time when the loss or injury first came to the knowledge of the appellants." In the present appeal, the second appellant sent a letter dated 25.04.1995 to the respondent, which was marked as Ex.A11 and for the same, acknowledgement has also been produced i.e. Ex.A12. Therefore, the appellants contended that they satisfied the conditions enumerated under Section 10 of the Carriers Act. The respondent in their written statement categorically stated that no notice has been sent under Section 10 of the Act and the alleged letter dated 25.04.1995 Ex.A11 never reached the respondent and Ex.A12-acknowledgement card dated 05.06.1995 is not relating to the said letter. Ex.A11 letter dated 25.04.1995 was supposed to be sent to the respondent, who is also in Coimbatore. The appellants as well as the respondent are having their office in the city of Coimbatore and it is obvious that it cannot take a month for the letter to reach the respondent. These factors certainly create doubt and suspicion. It is also pertinent to note that on the left top corner of the letter dated 25.04.1995 i.e.,Ex.A11, it is mentioned as follows: "A.C./B.R.L.1045/95." But in the acknowledgement card-Ex.A12 the number is mentioned as "A.C./B.R.L/1581/95" There is a discrepancy in the alleged letter dated 25.04.1995 i.e. Ex.A.11 and the acknowledgement card Ex.A12. After considering the above, the trial Court came to a conclusion that the said letter dated 25.04.1995 was not served on the respondent and it also held that the said acknowledgement card is not related to the said letter dated 25.04.1995. PW1 is the Assistant Manager of the Oriental Insurance. In her oral evidence, she admitted that the appellant does not have the postal receipt for sending the alleged letter dated 25.04.1995 and further she admitted in her evidence that it would not take a month for the letter to reach the respondent as both the appellants as well as the respondent are in Coimbatore. In respect of the acknowledgement card dated 05.06.1995, she admits that the acknowledgement card does not contain the company seal of the respondent. DW1 Rajkumar is the Manager of the respondent company. In respect of the acknowledgement card dated 05.06.1995, she admits that the acknowledgement card does not contain the company seal of the respondent. DW1 Rajkumar is the Manager of the respondent company. In his evidence also it is stated that the above mentioned respondent never received such letter dated 25.04.1995 Ex.A11. From the above oral evidence also it is established that no letter dated 25.04.1995 was actually served on the respondent. The Apex Court in the case of P.Rama Rao Vs. P.Nirmala And Others Reported In (1997) I Supreme Court Cases 757, considered the scope of Section 10 of the Carriers Act, 1865 and held as follows: "4. Admittedly, notice was issued by the petitioner on 5-7-1983 after the expiry of six months’ time. A reading of Section 10 would make it clear that 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 of or injury to the goods has been given to him before the institution of the suit within six months of the time when the loss of or injury to the goods first came to the knowledge of the plaintiff. The admitted position is that P. Nirmala, the owner of the truck had an insurance policy with the 4th respondent-Oriental Fire and General Insurance Co. Ltd. Ultimately, the liability is sought to be fastened on the insurance company as insurer, for the liability of common carrier. As a result, notice has to be issued, when the damage was caused to the goods which is being carried due to an accident covered under the policy of insurance. So, a notice under Section 10 is required to be issued to the Insurance Company within six months from the date of the knowledge of the injury to or loss of the goods entrusted for carriage before filing the suit. In fact, admittedly, such a notice was issued on 5-7-1983, namely, after the expiry of six months from the date of the accident, namely, 9-7-1982. The appellant-petitioner stepped into the shoes of the carrier, i.e., P.Nirmala. Notice issued by the Indian Oil Corporation to the petitioner as well as common carrier and the Insurance Company would not be construed to be a notice under Section 10. The appellant-petitioner stepped into the shoes of the carrier, i.e., P.Nirmala. Notice issued by the Indian Oil Corporation to the petitioner as well as common carrier and the Insurance Company would not be construed to be a notice under Section 10. Under these circumstances, it must be held that the suit against the Insurance Company would not lie, though a suit may lie against the common carrier." From a reading of the above, it is clear that no suit shall be instituted against the common carrier for the loss of or injury to goods entrusted to the respondent for carriage, unless notice in writing for the loss of or injury to the goods has been given to him before institution of the suit. So it is a mandatory provision. Failure on the part of the appellant to serve the letter in writing amounts to violation of statutory notice contemplated under Section 10 of the Carriers Act, 1865. Therefore, we answer the above first question in favour of the respondent. 12. In respect of the second question, it is raised for the first time. The counsel for the appellants relied on Exs.A5 and A6 and also Exs.B1` and B2 and contended that the same should be construed as notice under Section 10 of the Carriers Act, 1865. Ex.A.5 joint valuation report dated 03.05.1995 would make it clear that there was a joint inspection at the factory premises of the second appellant in the presence of the consignors representative one Sudesh Sharma, the consignees representative one Arumugam and Narayanaswamy, representative from East West International Marketing Gopalkumar and the respondent representative R.Thangaraj. Exs.A6 and B1 are the letters written by the respondent company on 06.07.1995 to the second appellant as well as the respondents head office in Pune. The said letters are certificates of damage/shortage relating to details of the damage to machinery and accessories. Ex.B2 is the letter dated 04.01.1996 by the respondent to its Regional Office, Madras which it also contains the details regarding the consignment as well as the damage to the machinery. According to the appellant, the respondent had the knowledge of notice of damage and shortage of machinery. So it should be construed as notice under Section 10 of the Carriers Act, 1865 and also relied on the judgment of Calcutta High Court in the case of Balurghat Transport And Company Vs. According to the appellant, the respondent had the knowledge of notice of damage and shortage of machinery. So it should be construed as notice under Section 10 of the Carriers Act, 1865 and also relied on the judgment of Calcutta High Court in the case of Balurghat Transport And Company Vs. The Luxmi Tea Company Limited Reported In Air 1987 Calcutta 370. The above said judgment considered the scope of Section 10 of the Carriers Act, 1865 and in para 4 it has been held as follows: "....Various issues were framed for determination and issue No.6, which was to the effect "Has the defendant been served with notice under Section 10 of the Carriers Act? If so, is the said notice legal, valid and sufficient in law?" was the real and main issue to be decided. We have made reference to that issue, because Mr.Pyne, appearing in support of the appeal, contended that notice under S.10 of the Act was a mandatory one and in this case, such notice was not appropriately served. S.10 of the Carriers Act, 1865 lays down that "no suit shall be instituted against any carrier for the loss and injury to the goods entrusted to him for carriage, unless notice in writing of the loss and injury have been given to him before the institution of the suit and within six months time when the loss or injury came to the knowledge of the consignor". It was Mr.Pynes specific submission that the said issue No.6, although duly raised, was not properly decided by the learned Court below and in fact, the learned Court below had just bypassed the said issue. It was contended by Mr.Pyne, on the basis of the observations in the case of River Steam Navigation Co. Ltd. Vs. M/s Hazarimal Multanmal, 27 Cal LJ 294 : (AIR 1918 Cal 896) where it has been observed that notice under Section 10 of the Carriers Act must be given and it is not enough that the carrier had knowledge aliunde of the loss, that since there was no such appropriate notice given under S.10 and Exts.4 and 5, which the learned Court below has considered, that such notice under S.10 would not stand the tests as laid down in the case, as mentioned above and as such the suit should not have been entertained or decreed. After reading and construing the said S.10, as mentioned above, we find that the concerned Exts.4 and 5, as referred to by the learned Court below, can be considered and construed as notice under S.10 and that being the position, the submission of Mr.Pyne, in our view would be of no avail or of any assistance. Exts.4 and 5 series, on the basis of their language in our view, can be construed as notice under S.10 and the suit was instituted within the limit as prescribed." In the above judgment, the Calcutta Court relied on Exs.4 and 5 and held that the same was construed as notice under Section 10 of the Carriers Act, 1865. After going through the judgment, we are unable to find out as to what is the nature and the content of the said exhibits. The counsel for the appellants is also unable to clarify the same. Therefore it is not helpful to the appellant. 13. Section 10 is mandatory provision and it imposes three conditions. It is plain, clear and unambiguous. A suit cannot be filed without satisfying the conditions. There should be actual notice in writing of the loss or injury and also the same should be given to him before the institution of the suit. Implied constructive notice, deeming and fictional service of notice would certainly not assist the appellants. Principle and intent to the statute is that there should be actual notice in writing and to be given to the defendant. There is no form prescribed for sending the notice under Section 10 of the Act. So it should be a conscious act by the appellants. Other factors like knowledge of notice of loss and participation in the joint inspection and assessing the damage and giving certificate of damage would not satisfy that conditions given in the provisions of the Act and the same can never be construed as a notice under Section 10 of the Act. When there is no actual service of notice to the respondent, the appellants/plaintiffs cannot institute a suit. Therefore Exs.A5, A6, B1 and B2 can never be construed as a notice under Section 10 of the Act. The other case laws relied on by the counsel for the appellants are factually different from the present case. Therefore, we are not dealing the same one by one. Therefore Exs.A5, A6, B1 and B2 can never be construed as a notice under Section 10 of the Act. The other case laws relied on by the counsel for the appellants are factually different from the present case. Therefore, we are not dealing the same one by one. Therefore, we answer the second question also in favour of the respondent. Under these circumstances, we do not find any error or illegality in the order passed by the trial Court so as to warrant interference. The findings given by the trial Court are based on valid materials and evidence. It is in accordance with law. Accordingly, the appeal is liable to be dismissed and the same is dismissed and the judgment and decree passed by the trial Court is confirmed. No costs.