In the said suit, the first defendant – the appellant herein entered appearance and filed its written statement with counter-claim of Rs.13,04,00,000/- with interest at the rate of 24% on the said amount till its realization.
The Carriers Act, 1865 vide Section 10 provided that no suit shall be instituted against the common carrier for the loss of, or injury to, goods including containers, pallets or similar articles of transport entrusted for carriage, unless a notice in writing for such loss of injury is given before the institution of the suit within six months of the loss coming to the knowledge of the plaintiff.
The above Section 10 of the Carriers Act, 1865 bars the institution of a suit only against a common carrier for the loss of, or injury to, goods entrusted to the common carriage for the purposes of carriage without giving a notice in writing of the alleged loss within six months of the loss or injury first coming to the knowledge of the plaintiff.
It also lays down that no suit or legal proceedings shall be instituted against a common carrier for any loss of, or damage to, a consignment unless a notice in writing of such loss to the consignment has been served upon the carrier before the institution of the suit or the legal proceedings within six months from the date of booking of the consignment by the consignor.
In other words, both the aforesaid provisions though Section 10 of the Carriers Act stands repealed and ceased to in force, provides for a notice before instituting any suit/legal proceedings against a common carrier for any loss or damage to the consignment.
It is in view of the aforesaid facts and circumstances, the plaintiff-first respondent pressed for rejection of the counter- claim set up by the appellant- first defendant under Order VII Rule 11 CPC as it was preferred without issuing the mandatory notice as contemplated mistakenly by Section 10 of the Carriers Act, 1865 but in fact by Section 16 of the new Act.
A reading of the counter-claim clearly reveals that the damages claimed are in respect of loss set up by the appellant-first defendant in connection with the loss of business opportunity, loss of reputation and loss on account of idling of men, machine and overheads.
In view of the aforesaid facts and circumstances, we are of the opinion that no notice under Section 16 of the new Act was necessary for instituting any suit or legal proceedings much less counter-claim against the common carrier for recovering the loss other than the loss of or damage to the consignment and, therefore, the courts below manifestly erred in rejecting the counter-claim under Order VII Rule 11 CPC as barred by Section 16 of the new Act.
There will be no orders as to costs.
Case Title: ESSEMM LOGISTICS Vs. DARCL LOGISTICS LIMITED (2023 INSC 471)
Case Number: C.A. No.-003229-003229 / 2023
