Madhya Pradesh Rajya Beej Avam Farm Vikas Nigam Vs. Shri Durga Transport Service, Banapura, District, Hoshangabad, M.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/500085
SubjectCommercial;Civil
CourtMadhya Pradesh High Court
Decided OnSep-25-1995
Case NumberFirst Appeal No. 204 of 1991
JudgeR.S. Garg, J.
Reported inAIR1996MP208; 1996(0)MPLJ497
ActsCarriers Act, 1865 - Sections 10
AppellantMadhya Pradesh Rajya Beej Avam Farm Vikas Nigam
RespondentShri Durga Transport Service, Banapura, District, Hoshangabad, M.P.
Appellant AdvocatePrashant Singh, Adv.
Respondent AdvocateP.D. Deoras, Adv.
DispositionAppeal allowed
Cases ReferredMadan & Co. v. Wazir Jaivir Chand
Excerpt:
- - the defendant also raised the defence under section 10 of the carriers act and alleged that a notice in writing was not given to him, therefore, the suit was bad.r.s. garg, j. 1. the appellant/plaintiff being aggrieved by the judgment and decree dated 5-7-1991 passed in civil suit no. 3-b of 1983 by the ii additional judge to the court of the district judge, hoshangabad, dismissing the plaintiff's suit, has preferred the present appeal. 2. the brief facts leading to the present appeal are that the plaintiff, which is an undertaking of the state of m. p. constituted under the provisions of the m. p. beej and farm vikas niganj adhiniyam, 1980 had given to defendant, for transportation, 160, quintals of wheat seeds worth rs.36,000/-from seoni malwa to jagdalpur vide bilty dated 11-11-1982. the seeds were loaded in the defendant's truck no. cpj 6463. the defendant did not deliver the goods at jagdalpur. therefore, the plaintiff personally informed one ramadhar of the defendant/ firm regarding non-delivery of the goods with a request that either the costs of the goods be paid or the receipt of the consignee be produced. various letters dated 22-12-1982, 6-1-1983, 20-1-1983 and 2-2-1983 were sent to the defendant and ultimately legal notice through the counsel was sent on 19-3-1983. the defendant, despite receipt of the letters and notice did not reply. therefore, the plaintiff filed the suit for recovery of costs of 100 quintals of wheat seeds rs. 36,000/-, rs. 2155/- advance paid for loading and unloading and rupees 2,855/- as interest at 18 per cent per annum.3. the defendant raised various disputes and submitted that the goods were not entrusted to him but in fact some clerk of the plaintiff came to him for obtaining a bilty, under pressure he gave the same. the defendant also raised the defence under section 10 of the carriers act and alleged that a notice in writing was not given to him, therefore, the suit was bad.4. the learned trial court framed various issues, received documentary evidence and recorded oral evidence of the parties and after hearing the parties came to the conclusion that-(i) the plaintiff had engaged the defendant/company for transportation of seeds, (ii) the goods were loaded in defendant's truck, a sum of rs.2,155/- was paid to the defendant as advance. (in) the defendant did not deliver the said consignment and also held that the plaintiff was entitled to a decree for rs. 41,000/- but lastly held that as the statutory notice under section 10 of the act was not given to the defendant, the suit was not tenable. the trial court dismissed the suit holding that the suit was not maintainable in absence of the statutory notice. hence this appeal by the plaintiff.5. shri singh learned counsel for the appellant contended that the word 'given' in section 10 of the act has to be read in conjunction with the preamble of the act. the word 'given' has to be interpreted as 'issue' as any other interpretation would be, illogical because in a given case the defendant by avoiding the service of the notice would never permit the plaintiff, to file the suit for recovery. it was submitted that service in a particular form or manner is riot necessary. the plaintiff is required to establish that notice was given to the defendant. shri deoras, on the other hand, submitted that the evidence available on record does not establish that a notice in writing for the loss or injury was given to the defendant before the institution of the suit and, therefore, the suit was rightly dismissed.6. the preamble of the act reads asunder:'whereas it is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability for loss of, or damage to such properly occasioned by the negligence or, criminal acts of themselves, their servants or agents.'it is clear from the preamble that the act was not passed only to limit the liability of the carriers, but also to declare the liability of the carrier. any contract or bargain which seeks to defeat the liability of the carrier as enacted by law would defeat the provisions of the act. section 10 of the act provides that unless notice in writing of the loss or injury has been given to the carriers before the institution of the suit and within 6 months of the time when the loss or injury first came to the knowledge of the plaintiff, no suit shall be instituted. as noted above, the carriers act does not only limit the liability of the carriers but also declares the liability of the carriers. section 10 provides a notice to the carriers so that false and frivolous claims are not lodged and to enable the carrier to examine the claims within reasonable time. reading the preamble with section 10, it is clear that some information in writing of the loss or injury has to be given to the carrier.7. the words 'serve', 'give' and 'send' are used as interchangeable words. the word 'issue' is also used in the same sense as 'served', their lordships of the supreme court in the : matter of banarasi debi v. i.t.o., air 1964 sc 1742, have held that the word 'issued' is used in the same sense as 'served'. in the instant case, it is proved beyond doubt that letters ex. p-2dated 21-1-1983, ex. p-3 dated 6-1-1983, ex. p-4, dated 2-2-83 and the legal notice ex. p-7 dated 19-3-1983 were issued to the defendant. it is also clear from the record that ex. p-7, legal notice, was not only issued but was even posted at the proper address of the defendant under postal receipt ex. p-8. in the matter of harihar banerji v. ramsahi, (1918) ilr 46 cal 458 : air 1918 pc 102, the privy council has held that 'if a letter properly directed is proved to have been put into the post office, it is presumed, that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed'. that presumption would apply with still greater force to letters which the sender has taken precaution to send under registered post. the supreme court in the matter of green view radio service v. laxmibai ramji, air 1990 sc 2156, has held that the question whether a denial by the addressee will rebut the presumption will depend on the facts and circumstances of each case. in the instant case, the documents exs. p-2, p-3 and p-4 were not only presented to the defendant addressee but copies of the same were sent from betul to bhopal. a refusal on the part of the addressee would certainly amount to service. the copies were received at bhopal and the defendant wants this court to believe that none of the letters were presented to him. in my opinion, the denial in the written statement and court statement is a false statement made by the defendant.8. shri deoras submitted that there is no plea in the plaint that these letters were presented to the defendant, the plaint speaks that the letters were written to the defendant, therefore, the evidence of presentation cannot be relied upon. i am unable to accept this contention. a true reading of the plaint would lead to the inference that the letters were written and sent to the defendant. the word 'sent' or 'written' do not mean that the letters were posted. in effect personal presentation is the mode of sending and giving a letter. after all, evidence was not required to be pleaded. by pleadings the other party is informed of the facts and the allegations which he is required to countermand and reply suitably. the genuineness of exs. p-2, p-3 and p-4 cannot be doubted. even otherwise, there is no reason for departmental employees to manufacture or correct these letters. from the statement of p. w. 2, it is clear that ramadhar refused to accept the said letters when they were presented to him.9. in the ordinary course of nature, the letters are presumed to have been received by the addressee. ex. p-7 is the legal notice issued by g. k. shrivastava (p.w. 3), advocate. the despatch of the notice is amply proved by the postal receipt ex. p-8. the counsel for the defendant submitted that from the statement of g. k. shrivastava, it is clear that the defendant did not refuse the service, but when the letter was brought for service, the defendant was not available. it is clear that the notice ex. p-7 was properly despatched and was presented for service. if the defendant was not available, then no fault can be found with the plaintiff. if the word 'given' is interpreted in a very strict sense, meaning 'served', then the carrier by avoiding the service, would never permit the plaintiff to file a suit. the word 'given' used in section 10, in the context of the act, would only mean that the owner is required to send some written information to the carrier regarding loss and injury. when a notice is issued on the proper address, the sender may not be in a position to do anything beyond it. in the case on hand both the modes were adopted. personal service was refused and the registered letter returned unserved. i have no hesitation in holding that the plaintiff has proved the issuance of the notice and from the record it is also clear that a notice under section 10 was given to the defendant.10. section 10 does not provide for a particular form of notice. the word 'notice' according to me, would mean 'information'. according to section 10, the plaintiff is obliged to inform the carrier in writing that the owner has suffered some loss or injury. once it is proved that by some writing the carrier was informed of the loss or injury, then it is the information which is material and not the form. the carrier would not be allowed to play hide and seek nor would he be permitted to say that notice in a particular form was not given to him. if the facts floating on the surface prove that the plaintiff in the form of some writing informed the defendant about the loss or injury, then the requirements of section 10 are fulfilled.11. there is mention in the plaint that information in writing were given to the defendant and a legal notice was also sent. the said informations arc contained in exs. p-2, p-3, p-4 and p-7. the plaintiff has proved presentation of the said letters and despatch of registered letter. beyond that nothing could be done by the plaintiff nor is expected of him. exs. p-2, p-3 and p-4 make it cleat that oral requests were made to the defendant regarding non-delivery of the goods, therefore, the defendant had knowledge of the fact that the plaintiff was asking him either to supply the goods or pay the price. having full knowledge of loss and injury, he was trying to avoid the service of the notice and to achieve this motive false allegations have been made by him that he did not receive the letters or notice.12. the learned trial court was wrong in holding that the plaintiff could not prove the issuance and presentation of exs. p-2, p-3 and p-4. it is clear from the statement of mansukhlal soni (p.w. 1) that the said letters were presented to the defendant. the learned court below has given undue importance to non-production of the originals of exs. p-2, p-3 and p-4. what is required to be proved is whether letter/notice was presented or sent to the carrier or not. on face of the statement of pw 1, it cannot be held that the letters were not presented to the defendant. the learned court below was also wrong in holding that why on refusal of the defendant, panchanama was not prepared. a panchanama merely records a fact and the said fact in any case is required to be proved by the person preparing it. in this case, the fact is proved. the question is whether a particular witness is to be relied upon. in the instant case, there is nothing on record to disbelieve the testimony of pw 2, the learned court below was wrong in holding that the plaintiff could not prove compliance of section 10. the supreme court, in the matter of madan & co. v. wazir jaivir chand, air 1989 sc 630, held that the notice must be taken to be duly served even when the postman returned it with the endorsement 'left without address, returned to sender'. the supreme court further held that the word' served' may mean' sent by post' and the word 'receipt' as the 'tender' of the letter by the postal peon at the address mentioned in the letter.13. the word 'given', looking to the intention of the legislature, in my opinion, would only mean 'sent' any other interpretation would lead to illogical conclusions. the plaintiff could successfully prove that he has presented and sent the notice in writing to the defendant, informing him about the loss and injury suffered by him.14. the plaintiff has proved compliance of the requirement under section 10 of the act. the trial court was wrong in holding that the suit of the plaintiff was not tenable for want of statutory notice.15. so far as the question of quantum is concerned, the trial court, on the basis of the available evidence, has rightly held that the plaintiff has suffered the loss and is entitled to a degree for rs.41,000/-.16. for the reasons stated above, the appeal is allowed. the judgment and decree passed by the learned court below are set aside. the plaintiff's suit for recovery of rs. 41,000/- is hereby decreed. the plaintiff is held entitled to interest on the principal amount rs. 36,000/- at 9 per cent per annum from the date of the suit till realisation. the plaintiff would also be entitled to the costs of the suit and of this appeal from the defendant. a decree be drawn up accordingly.
Judgment:

R.S. Garg, J.

1. The appellant/plaintiff being aggrieved by the judgment and decree dated 5-7-1991 passed in Civil Suit No. 3-B of 1983 by the II Additional Judge to the Court of the District Judge, Hoshangabad, dismissing the plaintiff's suit, has preferred the present appeal.

2. The brief facts leading to the present appeal are that the plaintiff, which is an undertaking of the State of M. P. constituted under the provisions of the M. P. Beej and Farm Vikas Niganj Adhiniyam, 1980 had given to defendant, for transportation, 160, quintals of wheat seeds worth Rs.36,000/-from Seoni Malwa to jagdalpur vide bilty dated 11-11-1982. The seeds were loaded in the defendant's truck No. CPJ 6463. The defendant did not deliver the goods at Jagdalpur. Therefore, the plaintiff personally informed one Ramadhar of the defendant/ firm regarding non-delivery of the goods with a request that either the costs of the goods be paid or the receipt of the consignee be produced. Various letters dated 22-12-1982, 6-1-1983, 20-1-1983 and 2-2-1983 were sent to the defendant and ultimately legal notice through the counsel was sent on 19-3-1983. The defendant, despite receipt of the letters and notice did not reply. Therefore, the plaintiff filed the suit for recovery of costs of 100 quintals of wheat seeds Rs. 36,000/-, Rs. 2155/- advance paid for loading and unloading and Rupees 2,855/- as interest at 18 per cent per annum.

3. The defendant raised various disputes and submitted that the goods were not entrusted to him but in fact some clerk of the plaintiff came to him for obtaining a bilty, under pressure he gave the same. The defendant also raised the defence under Section 10 of the Carriers Act and alleged that a notice in writing was not given to him, therefore, the suit was bad.

4. The learned trial Court framed various issues, received documentary evidence and recorded oral evidence of the parties and after hearing the parties came to the conclusion that-

(i) The plaintiff had engaged the defendant/company for transportation of seeds,

(ii) the goods were loaded in defendant's truck, a sum of Rs.2,155/- was paid to the defendant as advance.

(in) the defendant did not deliver the said consignment and also held that the plaintiff was entitled to a decree for Rs. 41,000/- but lastly held that as the statutory notice under Section 10 of the Act was not given to the defendant, the suit was not tenable.

The trial Court dismissed the suit holding that the suit was not maintainable in absence of the statutory notice. Hence this appeal by the plaintiff.

5. Shri Singh learned counsel for the appellant contended that the word 'given' in Section 10 of the Act has to be read in conjunction with the preamble of the Act. The word 'given' has to be interpreted as 'issue' as any other interpretation would be, illogical because in a given case the defendant by avoiding the service of the notice would never permit the plaintiff, to file the suit for recovery. It was submitted that service in a particular form or manner is riot necessary. The plaintiff is required to establish that notice was given to the defendant. Shri Deoras, on the other hand, submitted that the evidence available on record does not establish that a notice in writing for the loss or injury was given to the defendant before the institution of the suit and, therefore, the suit was rightly dismissed.

6. The preamble of the Act reads asunder:

'Whereas it is expedient not only to enable common carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability for loss of, or damage to such properly occasioned by the negligence or, criminal acts of themselves, their servants or agents.'

It is clear from the preamble that the Act was not passed only to limit the liability of the carriers, but also to declare the liability of the carrier. Any contract or bargain which seeks to defeat the liability of the carrier as enacted by law would defeat the provisions of the Act. Section 10 of the Act provides that unless notice in writing of the loss or injury has been given to the carriers before the institution of the suit and within 6 months of the time when the loss or injury first came to the knowledge of the plaintiff, no suit shall be instituted. As noted above, the Carriers Act does not only limit the liability of the carriers but also declares the liability of the carriers. Section 10 provides a notice to the carriers so that false and frivolous claims are not lodged and to enable the carrier to examine the claims within reasonable time. Reading the preamble with Section 10, it is clear that some information in writing of the loss or injury has to be given to the carrier.

7. The words 'serve', 'give' and 'send' are used as interchangeable words. The word 'issue' is also used in the same sense as 'served', Their Lordships of the Supreme Court in the : matter of Banarasi Debi v. I.T.O., AIR 1964 SC 1742, have held that the word 'issued' is used in the same sense as 'served'. In the instant case, it is proved beyond doubt that letters Ex. P-2dated 21-1-1983, Ex. P-3 dated 6-1-1983, Ex. P-4, dated 2-2-83 and the legal notice Ex. P-7 dated 19-3-1983 were issued to the defendant. It is also clear from the record that Ex. P-7, legal notice, was not only issued but Was even posted at the proper address of the defendant under postal receipt Ex. P-8. In the matter Of Harihar Banerji v. Ramsahi, (1918) ILR 46 Cal 458 : AIR 1918 PC 102, the Privy Council has held that 'if a letter properly directed is proved to have been put into the post office, it is presumed, that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed'. That presumption would apply with still greater force to letters which the sender has taken precaution to send under registered post. The Supreme Court in the matter of Green View Radio Service v. Laxmibai Ramji, AIR 1990 SC 2156, has held that the question whether a denial by the addressee will rebut the presumption will depend on the facts and circumstances of each case. In the instant case, the documents Exs. P-2, P-3 and P-4 were not only presented to the defendant addressee but copies of the same were sent from Betul to Bhopal. A refusal on the part of the addressee would certainly amount to service. The copies were received at Bhopal and the defendant wants this Court to believe that none of the letters were presented to him. In my opinion, the denial in the written statement and Court statement is a false statement made by the defendant.

8. Shri Deoras submitted that there is no plea in the plaint that these letters were presented to the defendant, the plaint speaks that the letters were written to the defendant, therefore, the evidence of presentation cannot be relied upon. I am unable to accept this contention. A true reading of the plaint would lead to the inference that the letters were written and sent to the defendant. The word 'sent' or 'written' do not mean that the letters were posted. In effect personal presentation is the mode of sending and giving a letter. After all, evidence was not required to be pleaded. By pleadings the other party is informed of the facts and the allegations which he is required to countermand and reply suitably. the genuineness of Exs. P-2, P-3 and P-4 cannot be doubted. Even otherwise, there is no reason for departmental employees to manufacture or correct these letters. From the statement of P. W. 2, it is clear that Ramadhar refused to accept the said letters when they were presented to him.

9. In the ordinary course of nature, the letters are presumed to have been received by the addressee. Ex. P-7 is the legal notice issued by G. K. Shrivastava (P.W. 3), Advocate. The despatch of the notice is amply proved by the postal receipt Ex. P-8. The counsel for the defendant submitted that from the statement of G. K. Shrivastava, it is clear that the defendant did not refuse the service, but when the letter was brought for service, the defendant was not available. It is clear that the notice Ex. P-7 was properly despatched and was presented for service. If the defendant was not available, then no fault can be found with the plaintiff. If the word 'given' is interpreted in a very strict sense, meaning 'served', then the carrier by avoiding the service, would never permit the plaintiff to file a suit. The word 'given' used in Section 10, in the context of the Act, would only mean that the owner is required to send some written information to the carrier regarding loss and injury. When a notice is issued on the proper address, the sender may not be in a position to do anything beyond it. In the case on hand both the modes were adopted. Personal service was refused and the registered letter returned unserved. I have no hesitation in holding that the plaintiff has proved the issuance of the notice and from the record it is also clear that a notice under Section 10 was given to the defendant.

10. Section 10 does not provide for a particular form of notice. The word 'notice' according to me, would mean 'information'. According to Section 10, the plaintiff is obliged to inform the carrier in writing that the owner has suffered some loss or injury. Once it is proved that by some writing the carrier was informed of the loss or injury, then it is the information which is material and not the form. The carrier would not be allowed to play hide and seek nor would he be permitted to say that notice in a particular form was not given to him. If the facts floating on the surface prove that the plaintiff in the form of some writing informed the defendant about the loss or injury, then the requirements of Section 10 are fulfilled.

11. There is mention in the plaint that information in writing were given to the defendant and a legal notice was also sent. The said informations arc contained in Exs. P-2, P-3, P-4 and P-7. The plaintiff has proved presentation of the said letters and despatch of registered letter. Beyond that nothing could be done by the plaintiff nor is expected of him. Exs. P-2, P-3 and P-4 make it cleat that oral requests were made to the defendant regarding non-delivery of the goods, therefore, the defendant had knowledge of the fact that the plaintiff was asking him either to supply the goods or pay the price. Having full knowledge of loss and injury, he was trying to avoid the service of the notice and to achieve this motive false allegations have been made by him that he did not receive the letters or notice.

12. The learned trial Court was wrong in holding that the plaintiff could not prove the issuance and presentation of Exs. P-2, P-3 and P-4. It is clear from the statement of Mansukhlal Soni (P.W. 1) that the said letters were presented to the defendant. The learned Court below has given undue importance to non-production of the originals of Exs. P-2, P-3 and P-4. What is required to be proved is whether letter/notice was presented or sent to the carrier or not. On face of the statement of PW 1, it cannot be held that the letters were not presented to the defendant. The learned Court below was also wrong in holding that why on refusal of the defendant, Panchanama was not prepared. A Panchanama merely records a fact and the said fact in any case is required to be proved by the person preparing it. In this case, the fact is proved. The question is whether a particular witness is to be relied upon. In the instant case, there is nothing on record to disbelieve the testimony of PW 2, The learned Court below was wrong in holding that the plaintiff could not prove compliance of Section 10. The Supreme Court, in the matter of Madan & Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, held that the notice must be taken to be duly served even when the postman returned it with the endorsement 'left without address, returned to sender'. The Supreme Court further held that the word' served' may mean' sent by post' and the word 'receipt' as the 'tender' of the letter by the postal peon at the address mentioned in the letter.

13. The word 'given', looking to the intention of the legislature, in my opinion, would only mean 'sent' any other interpretation would lead to illogical conclusions. The plaintiff could successfully prove that he has presented and sent the notice in writing to the defendant, informing him about the loss and injury suffered by him.

14. The plaintiff has proved compliance of the requirement under Section 10 of the Act. The trial Court was wrong in holding that the suit of the plaintiff was not tenable for want of statutory notice.

15. So far as the question of quantum is concerned, the trial Court, on the basis of the available evidence, has rightly held that the plaintiff has suffered the loss and is entitled to a degree for Rs.41,000/-.

16. For the reasons stated above, the appeal is allowed. The judgment and decree passed by the learned Court below are set aside. The plaintiff's suit for recovery of Rs. 41,000/- is hereby decreed. The plaintiff is held entitled to interest on the principal amount Rs. 36,000/- at 9 per cent per annum from the date of the suit till realisation. The plaintiff would also be entitled to the costs of the suit and of this appeal from the defendant. A decree be drawn up accordingly.