IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CCCA.NO. 38 OF 1995. Between: M/s. The United India Insurance Company Ltd.. Represented by its Divisional manager Divisional Office No.IV, Tilak Road, Hyderabad & Anr. … Appellants-Plaintiffs V/s. M/s. The South Central Roadways, Fleet Owners & Transport Contractors, 15-8-451/C, Feelkhana, Hyderabad. … Respondent-Defendant Counsel for the Appellants : Sri K.L.N. Rao & Sri V. Srinivasa Rao Counsel for the Respondent : None appeared THE HONOURABLE SRI JUSTICE R. KANTHA RAO CCCA.NO. 38 OF 1995 JUDGMENT : This appeal is directed against the judgment and decree dated 07-10-1994 passed in OS.No. 728 of 1996 by the IV-Additional Judge, City Civil Court, Hyderabad. 2. The appellant filed the suit for recovery of a sum of Rs.61,805-00 together with interest and costs. 3. For the sake of convenience, the parties may be referred to as plaintiff and defendant. 4. According to the plaintiff, the first plaintiff had issued a marine open Policy bearing No. 50400/63/1/136/84 covering the risk in respect of a consignment sent by the second plaintiff-consignor to the M/s. Pioneer Seeds Company Limited, Mohapur, Samasthipur, State of Bihar. The said consignment consists of 158 bags of Pioneer brand maize seeds. The consignment was entrusted to the defendant carriers for safe carriage by road to be delivered to M/s. Pioneer Seeds Company Limited, Samasthipur, Bihar. 5. It is the version of the plaintiffs that while the goods were transported by the defendant, the vehicle transporting the goods was burnt on 01-11-1984 near Khamma and the incident occurred on account of negligence and reckless handling of the vehicle on the part of the employees of the defendant-carriers. The entire consignment of seeds was burnt in the said incident. The second plaintiff thereafter issued a registered notice claiming reimbursement of the value of goods on 09-11-1984 and the defendant having received the same repudiated the claim of the second plaintiff as untenable through their letter dated 11-12-1984. However, in the simultaneous claim preferred by the second plaintiff against the first plaintiff, the claim was settled by the first plaintiff by paying a sum of Rs.61,805/- since the consignment was covered by a marine open policy and obtained a letter of subrogation and special power of attorney in favour of the second plaintiff. Thus, the first plaintiff alone stands subrogated to the rights and remedies of the second plaintiff against the defendant carriers. 6. The suit was resisted by the defendant on the ground that the incident in which the vehicle transporting the goods was burnt was not due to negligence or recklessness of the employees of the defendant but the same was set on fire by the mob during violence erupted after the assassination of late Smt. Indira Gandhi, the then Prime Minister of India on 31-10-1984. Thus, contending that the goods were not burnt on account of the fault of the defendant’s employees, the defendant prayed to dismiss the suit with costs. 7. Basing on the rival contentions, the following issues were settled by the trial court : (1) Whether the plaintiffs are entitled for Rs.61,805/- with interest at 18% per annum as prayed for ? (2) To what relief ? 8. Before the learned trial court, PW-1 was examined on behalf of the plaintiff and Exs. A-1 to A-11 were marked. Whereas DW-1 was examined and no document was marked on behalf of the defendant. 9. The learned trial Court on consideration of the entire evidence on record and having regard to the facts and circumstances, answered both the issues in favour of the defendant and dismissed the suit without costs. 10. Assailing the judgment and decree, the plaintiffs preferred the present CCCA. 11. Now the point for determination in this appeal is whether the findings of the learned trial Court that since the loss to the goods was not due to any recklessness or negligent act of the employees of the defendant but due to sheer act of god and therefore, the defendant is not liable to pay the said amount i.e., the value of the consignment to the plaintiffs can be sustained. 12. The trial court dismissed the suit on the premise that the plaintiffs are not able to prove any negligence on the part of the defendant basing the evidence of DW-1 and considering the fact that violence broke out after the assassination of the-then Prime Minister of India, Smt. Indira Gandhi, and viewing that the vehicle carrying the goods might have been set on fire by the rioters. 13. The learned counsel appearing for the appellants relied upon a decision in ECONOMIC TRANSPORT ORGANISATION V/s. CHARAN SPINNING MILLS (P) LIMITED AND ANR [1], wherein the Hon’ble Supreme Court referring to Section 9 of the Carriers Act held that having regard to the presumption regarding the negligence under section 9 of the Carriers Act, it was not necessary for the complainants to prove further that the loss/damage was due to the negligence of the appellant or its driver. The presumption regarding negligence was not rebutted. Therefore, District Forum was justified in allowing the complaint brought by the respondent No.4 representing by the insurer to recover the amount of loss. 14. The learned counsel also relied upon a decision in PRAKASH ROAD LINES (P) LTD. AND ANR. V/s. H.M.T. BEARING LIMITED [2], wherein the Division Bench of this High Court referring to Section 9 of the Carriers Act held that when the goods entrusted to the carrier for transportation were damaged in fire in the godown of the carrier the consignor is entitled to recover the loss or damage that occurred due to the non-delivery of goods entrusted to him to the carrier and he need not establish that loss or damage or non-delivery occurred due to negligence on the part of the carrier, his servants or agents. 15. If we apply the ratio laid down in the above referred judgments to the facts of the present case, the appellants are not required to prove any negligence on the part of the driver or agents of the defendant. There is a presumption in favour of the appellants that the loss occurred was due to the negligence of the defendant. Further more, the defendant in this case did not adduce any evidence to show that the incident wherein the vehicle carrying consignment was burnt by the mob after the assassination of Smt.Indira Gandhi, the then Prime Minister. The Court only had taken into consideration the date on which the assassination of late Prime Minister, Smt. Indira Gandhi was done and the date allegedly on which the vehicle carrying the goods was burnt and gave a finding that it might be due to the violence caused subsequent to the assassination of Smt. Indira Gandhi. But there is no positive evidence showing either direct or circumstantial that the incident is an act of vismajor. 16. In view of the settled legal position, the appellants are not required to prove any negligence on the part of the defendant carrier and owing to failure on the part of the defendant to rebut the presumption, the appellants must succeed and the learned trial Court ought to have allowed the suit. 17. For the reasons afore-mentioned, the judgment and decree passed by the trial Court is set aside and the suit filed by the appellants is decreed as prayed for. The appeal is therefore, allowed and there shall be no order as to costs. JUSTICE R. KANTHA RAO. 02-11-2010 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO CCCA.No. 38 of 1995 Circulation No.43 Date:02-11-2010 I s L Computer No.43 [1] ) 2010 ACJ-2288 [2] ) 2001 ACJ-40