Whether carrier can seek rejection of plaint for non-serving the notice before filling suit against them?

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Mr. A booked a consignment with carrier. The carrier filed a suit against Mr. A for recovery of money. Mr. A filed a counter-claim for compensation on account of loss of business opportunity, loss of reputation and idle men & machine. The carrier filed Order 7 Rule 11(d) contending that counter-claim/ plaint is barred by section 16 of Carriage by Road act, 2007 which bars any suit or legal proceedings against carrier for loss or damage to the consignment unless prior notice been served before institution of suit or legal proceedings. The trial court allowed the Order 7 Rule 11 and rejected the counter claim. The Hon’ble High Court affirm the same. The Hon’ble Supreme Court held that[1]:

 

(I)             Section 16 is applicable only in respect of institution of a suit or legal proceeding against a common carrier for any loss of, or damage to, the consignment. The use of the word “Consignment” in the said provision is very material. 

 

(II)          It denotes that the suit and legal proceedings in connection with the loss or damage to the consignment alone are covered by it for which purpose, a notice is mandatory.

 

(III)       The said provision has no application in reference to loss of any other kind or the suit or legal proceedings instituted for recovery of damages in respect of loss of different nature.

 

(IV)       The provision of Section 16 of the new Act does not come into play vis-à-vis the condition of giving a notice in respect of claims for damages for the loss of reputation, business opportunity etc. as such claims are not in connection with the damage or loss to the consignment.

 


[1] Essemm Logistics v. Darcl Logistics Limited, 01/05/2023, SLP (C) No.24340 of 2019

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