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Himachal Pradesh High Court · body

2011 DIGILAW 1244 (HP)

Om Parkash Chauhan v. K. A. F. Company

2011-03-14

DEV DARSHAN SUD

body2011
JUDGMENT Dev Darshan Sud, J The plaintiff-appellant is aggrieved by the judgment of the two Courts below dismissing his claim for recovery a sum of ` 49,000/- as damages. It is undisputed before me that initially the suit was instituted against respondent-defendant No. 1 M/s K.A.F. Company (India), G.T. Road, Karnal and later defendant No. 2 was added as a party, on an application instituted by the plaintiff under Order 1 Rule 10 of the Code of Civil Procedure. 2. On the material on record and settled issues, the learned trial Court dismissed the suit of the plaintiff on the ground that the plaintiff though was entitled to the suit amount but held on the crucial issue against the plaintiff that no notice under Section 10 of the Carriers Act, 1865 has been served on the defendant. 3. The plaintiff appealed before the learned Appellate Court and the defendant filed cross objections. The learned Appellate Court upheld the findings of the learned trial Court to the extent that suit was not competent under Section 10 of the Carriers Act and allowed the cross objections instituted by the defendant-respondent. 4. The plaintiff is now in second appeal. The appeal was admitted on three substantial questions of law: Question No. 1 5. Section 10 of the Act provides: “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.” Adverting to this issue, the learned Appellate Court affirms the findings of the learned trial Court holding that no notice was issued from the date of loss. The cause pleaded in the plaint was that cause of action accrued to the plaintiff on 9.10.1991 and that notice should have been issued within a period of six months from that date. However the finding is that notice was issued to the defendant after more than two years i.e. on 2.8.1994. This is an established fact. 6. Learned counsel appearing for the appellant vehemently urges that six months is to be counted from the date of knowledge of the plaintiff and not from the date of loss. However the finding is that notice was issued to the defendant after more than two years i.e. on 2.8.1994. This is an established fact. 6. Learned counsel appearing for the appellant vehemently urges that six months is to be counted from the date of knowledge of the plaintiff and not from the date of loss. He submits that it was the duty of the Carrier to be informed about the loss and it is that particular point of time from which period of limitation would commence. I am unable to accept this submission, as in view of Section 10 of the Act, the plaintiff had to issue the notice to the defendant within six months, neither he has issued notice from the date of knowledge nor he has explained under what circumstances he had slept for three years. I also find that the case law on which the learned Courts below placed reliance squarely applies to this fact. Question No.2. 7. On the second question as to whether the trial Court has rightly exercised its discretion in terms of Section 21 of the Limitation Act, the learned counsel submits that the learned Court below was not correct in holding that the addition of defendant No. 2 under Order 1 Rule 10 of the CPC, is barred by limitation. Learned counsel submits that the appellant was entitled to the benefit of Section 21 of the Act which provides that where the Courts are satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. I do not find that such exercise on facts has been undertaken by the plaintiff before the Courts below by leading evidence to establish a bonafide mistake. In these circumstances, merely invoking the proviso is not sufficient unless factual foundation is laid down. Therefore, this question is answered against the plaintiff. Question No.3 8. On the third question as to whether suit should be decreed against defendant No.2, it is urged that since defendant No. 2 was exparte before the Courts below and the suit having been uncontested at least a notice should have been issued. That would have been but the natural consequences. Question No.3 8. On the third question as to whether suit should be decreed against defendant No.2, it is urged that since defendant No. 2 was exparte before the Courts below and the suit having been uncontested at least a notice should have been issued. That would have been but the natural consequences. What I find from the record is that the provisions of Section 10 of the Act would be a bar to the plaintiff to recover the suit amount from this defendant also. This appeal is accordingly dismissed. There shall be no order as to costs.