JUDGMENT
M.N. Roy, J.
1. This appeal is directed against the judgment and decree dated 27th Jan. 1975, passed in Money Suit No. 320 of 1971, by the learned Judge, 10th Bench, City Civil Court, Calcutta. By such determination, the suit for recovery of price of the goods, which were not duly delivered and damaged during transit, was decreed for a sum of Rs. 8,934.86p, with proportionate cost.
2. There were two invoices involved being Ext 47 dt. 27th Aug. 1968 and D49 dt. 29th Aug. 1968 on the basis whereof, the claim for the decree as mentioned above, was made. Admittedly, the plaintiff is the owner of a tea garden known as Narayanpur Tea Estate and on diverse dates, various consignments of tea in different chest were delivered to the defendant appellant, a common carrier, for carrying them from the said tea estate to Calcutta by road. The particulars of the consignment notes have been given in the plaint. As indicated earlier, the suit in question related to the invoices as mentioned above. It would appear from the pleadings that on 4th Sept 1968, the defendant appellant’s truck bearing No. WBK 3221, was loaded with the concerned chest and in transit, the said truck met with an accident on the way between Gayarkata and Birpara, as a result whereof, the consignments of tea suffered damages. Further particulars of the consignments which were so damaged have also been mentioned and there was survey and inspection made of those teas by the various tea brokers like M/s. J. Thomas & Co. Private Limited and M/s. W. S. Cresswell & Co. Private Limited. Both the said tea brokers issued short certificates and P.Ws. 1 and 2, their employees, had also proved those certificates.
3. The plaintiffs specific case was that because of the happening as mentioned above, they have suffered damages for a sum of Rs. 6,994.48 and Rs. 2,328.42 and such accident, involved in this case, had happened due to the negligence of the carrier,
4. The material allegations in the plaint have been denied and disputed. The defendants in their turn admitted the accident, but claimed that only 25 of the chest were broken and the contents of those chests were delivered to the plaintiff in 17 gunny bags and as a result thereof, the plaintiff did not really suffer any damage. While on those part of the written statement, a letter dt. 13th Sept. 1968 (Ext. 3), should be taken into consideration and must be kept in mind. By the said letter, the appellant has admitted the happening of the accident on 4th Sept. 1968 between Gayarkata and Birpara and as a result thereof, many tea chests were partly damaged and tea and containers scattered on the roadside. They have further given details and ultimately informed the plaintiff respondent that the contents of 25 chests in respect of the consignments were mixed up and they were kept protected in 17 gunny bags, which were lying in their godown in Calcutta. It would also appear from that letter, Ext. 3 that the defendants were asking to the plaintiff to advise them, were such damaged teas should be delivered. This, fact, even in spite of any other evidence, would establish or go to show that there was damage caused to the teas. Apart from the above, the defendants have further claimed that the certificate as issued was improper, as the same was done behind their back. They have also disputed some of the findings as arrived at in such survey. 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. Pain, appearing in support of the appeal, contended that notice under Section 10 of the Act was a mandatory one and in this case, such notice was not appropriately served. Section 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. Pain’s 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. Pain, on the basis of the observations in the case of River Steam Navigation Co. Ltd. v. Hazarimal Mullanmal, 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 Section 10 and Exts. 4 and 5, which the learned court below has considered, that such notice under Section 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 Section 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 Section 10 and that being the position, the submissions 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 Section 10 and the suit was instituted within the limit as prescribed.
5. Then, Mr. Pyne submitted that on merits also, the learned Judge was not justified in passing the decree, more particularly when, in term of the consignment note and because of Clause (4) of the terms and conditions, which is to the following effect, that the company shall not be liable for any loss or damage due to pilferage, theft, weather condition, strike, riot, disturbance, fire, explosions or accident provided, however, reasonable precautions are taken to provide against such contingencies. In this case, admittedly there was an accident and from the pleadings it would appear that the respondent has claimed that the defendant appellant was negligent in the matter of carrying the goods. Their witness P.W. 3 has stated that the damages and shortage were due to the negligence of the defendant. Such statement was not shaken in the cross-examination and on the other hand, defendant’s witness D.W. 1 has not led any evidence, establishing that they had carried the consignments with due care and caution and were not responsible for the concerned accident. This D.W. 1, was an employee of the defendant appellant and he was not present at the time of the accident or at the place where the same took place. Thus, the best evidence on the cause of the accident, could have been received, was either through the driver or the cleaner or the helper of the truck in question, but D.W. 1 on being asked, has categorically stated that the driver or cleaner of the truck in question would not depose in this case. By such, we feel that the best evidence in the matter has been withheld. Thus, according to our view the defendant appellants have not been able to establish their due care and caution in the matter of carrying the consignments in question.
6. Thereafter, Mr. Pyne submitted that the assessment of damage as made by the learned trial Judge, was not due and proper and by any imagination, he could have formed the opinion that ends of justice would be satisfied it a deduction of Rs. 388.24, i.e. 1/8th of the actual price be made on this account. At the time of discussion, Mr. Bhattacharya appearing for the plaintiff respondent stated that his client would have no objection if instead of Rs. 8,934.83, as decreed, the suit is decreed for a sum of Rs. 8,000 only. Such being the stand taken, which, we also feel to be reasonable, we accept such submissions.
7. The above being the position, we dispose of this appeal without any order as to costs and the judgment and decree is modified to the above extent.
8. We are informed that on 25th Nov. 1975, a sum of Rs. 10,125.13p had been deposited in the court below. We keep it on record that after taking into consideration the modification we have made, the learned court below will be entitled to refund the balance, if any, out of the said sum, to the defendant appellant.
Sukumar Chakravarty, J.
9. I agree.