IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 469 OF 2002 BETWEEN: S.G. Sambandan & Company …APPELLANT AND United India Insurance Company and two others …RESPONDENTS The Court made the following: HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 469 OF 2002 JUDGMENT: The second defendant in O.S.No. 68 of 1998 on the file of Additional Senior Civil Judge, Kurnool, is the appellant herein. 2. The suit was filed for recovery of Rs.2,55,250/- towards the loss of goods. 3. According to the case of the plaintiffs, the second plaintiff purchased 9.430 Metric Tonnes of RBD Palmolein loose oil valued at Rs.2,65,473.36 from ITC Agro Tech Limited, Port Area, Visakhapatnam on 23-08-1997. Thereafter, the said oil was entrusted to the 1st defendant to be transported by road from Visakhaptnam and delivered at Kurnool to the 2nd plaintiff, who is the owner and cosginee of the said consignment. The 1st defendant is an Association which carries on business as transporter and held itself out as being ready to carry goods for any person. The 1st defendant accepted the said consignment and issued lorry receipt (LR) No. 506, dated 23-08-1997 and despatched the said Palmolein Oil in lorry tanker No. AEV 6999 belonging to the 2nd defendant. The said consignment was insured with the 1st plaintiff for loss in transit under Policy No. 051100/21/26/11/10423/97, dated 10-07-1997. While the goods were under transit, on 24-08-1997 at about 5-30 P.M., after crossing Munneru River Bridge, the lorry met with an accident due to rash and negligent driving of the vehicle driven by its driver. Consequently, there was leakage of oil and water also mixed with oil and a quantity of 7599 Kgs was lost and mixture of oil and water weighing 1831 Kgs was recovered. The 1st defendant has issued a shortage certificate. The 2nd plaintiff claimed from the defendants to reimburse the loss, but the defendants denied. Then the 2nd plaintiff made a claim with the 1st plaintiff and a Surveyor was appointed and he assessed loss and the claim was settled for Rs.2,55,250/-. Accordingly, 1st plaintiff paid the money to the 2nd plaintiff and obtained the rights of subrogation. The 1st plaintiff claimed from the defendants and as the amount was not paid, the suit was filed. 4. The 2nd defendant filed a written statement contending that the suit is not maintainable and the Court at Visakhapatnam has no jurisdiction. There is no rashness or negligence on the part of the driver. The booking of the consignment in the lorry belonging to the 2nd defendant is admitted. The incident has happened due to the circumstances beyond the control of the driver, the damages claimed are disputed. The Survey Report and the right of subrogation are disputed. The suit claim is exorbitant and arbitrary, actual loss has to be proved, the defendant is therefore not liable for the claim. The 1st defendant remained exparte. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether this Court has no territorial jurisdiction to entertain the suit? 2) Whether there is privity of contract between the plaintiffs and 2nd defendant? 3) Whether the suit is not duly and validly constituted? 4) Whether the suit is bad for misjoinder of cause of action? 5) Whether the suit is bad for non issuance of statutory notice? 6) Whether the plaintiffs are entitled to recover the suit amount? 7) Whether the suit claim is exorbitant and arbitrary? 8) Whether the interest claimed is highly excessive and usurious? 9) To what relief? 6. On behalf of the plaintiffs PWs. 1 to 4 were examined and marked Exs.A-1 to A-27. On behalf of the defendant DW.1 was examined and marked Ex.B-1. 7. After considering the evidence on record, the learned Additional Senior Civil Judge, decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the appellant is not liable to pay the suit amount? 2) Whether the judgment and decree passed by the learned Additional Senior Civil Judge, Kurnool, is legal and sustainable? 9. POINTS: The undisputed facts are that the consignment for transportation of palmolein loose oil was entrusted in the vehicle of the 2nd defendant, who is the appellant herein, and the lorry tanker bearing No. AEV 6999 was involved in the accident. The fact that the goods are insured with the 1st plaintiff and the 1st plaintiff has paid the money to the 2nd plaintiff after the survey report also cannot be doubted. Ex.A- 4 the shortage certificate was given by the 1st defendant. The payment of the amount by the 1st plaintiff to the 2nd plaintiff is also not in serious dispute. Any way the evidence on record clearly establishes that the amount was paid. The Surveyor, who has assessed the loss and damages, was also examined as PW-4. 10. The contention of the appellant that under Ex.A-2 lorry receipt jurisdiction was made subject to Visakhapatnam Court only and the suit is not maintainable at Kurnool, is rejected by the lower Court on the ground that there is no signture of the consignor or consignee, and therefore, it is not binding. Learned counsel for the appellant could not show as to how the jurisdiction of the Court at Kurnool is excluded. 11. It is sought to be contended by the counsel for the appellant, the transport contractor is the 1st defendant and the vehicle was engaed by him and therefore, if any claim is to be there, it shall be against the 1st defendant. This contention of the counsel for the appellant also cannot be accepted for the reason the goods were damaged when the vehicle belonging to the appellant was in use and the driver was appointed by the appellant only. Evidently, the 1st defendant has no control over the driver or the lorry belonging to the appellant. Therefore, when the liability arises due to the accident, it is the owner, who has vicariously liable. So far as notice under Section 10 of the Carriers Act (for short, “the Act”), is concerned, the incident happened on 24-08-1997 and Ex.A-5 legal notice was issued to defendants 1 and 2 on 27-09-1997 and the appellant has given reply on 27-10-1997 under Ex.A-14 and therefore, it cannot be said that the suit is not maintainable. 12. The thrust of the counsel for the appellant is concerned, the goods were booked at owner’s risk and since there is no proof of rashness or negligence on the part of the lorry, there cannot be any liability for the appellant. According to him, the driver of the lorry was prosecuted and he was acquitted by the Court as can be seen from Ex.B-1 and also the evidence of DW-1, therefore, in view of the acquittal, it can be concluded that there is no rashness or negligence on the part of the driver of the lorry. I do not find any substance in the contention. It is settled law that an acquittal in criminal case will not absolve the libility for a civil wrong and compensation in a civil suit. As can be seen from Ex.B-1, all the material witnesses have turned hostile and the Investigating Officer did not appear and as such, the accused was acquitted. So far as the nature of the incident is concerned, the evidence of DW-1, who is the driver of the lorry is to be considered. According to him, after he crossed Khammam Town, the lorry met with an accident near Jalgampet. At the time of accident, he was driving the vehicle at a speed of 15 to 20 Kms only. After he crossed a small bridge over a channel while negotiating a curve, he lost control of the steering and when he applied the brake the lorry fell on the left side into the canal. At that time, the cleaner of the lorry was sitting by his side. The cleaner jumped out of the lorry, and the lorry fell over the cleaner and he died on the spot. The accident was not due to his fault, and it was beyond his control. 13. Learned counsel for the appellant contends that the speed of the vehicle was only 15 to 20 Kms and therefore, it is not a case of rashness or negligence. Evidently, in considering the cases of rashness or negligence, speed alone is not the criteria. It was said to be a raining time and night time. The driver of the vehicle was taking a curve after crossing the bridge. Then after rain, he should expect that the margins will not be clear and the vehicle is likely to hit and the very fact that while negotiating the curve, the vehicle was turtle and fell aside itself speaks about the failure of driver and the lack of care on his part. Therefore, the manner in which the incident has happened clearly goes to show that it was due to the fault of the DW-1 alone. It is not an act of God, which was sought to be canvassed. Therefore, the main negligence is attributable to the driver of the lorry, the owner cannot escape the consequences of the damage of the goods. 14. Learned counsel for the appellant contended that the vehicle was hired by the 1st defendant and therefore, there is no liability. He relied on a decision reported in Rajasthan State Road Transport Corporation Vs. Kailash Nath Kothari and others etc.,[1]. Evidently, in this case, none of the defendants have gone into box and no contract was proved about the liability between defendants 1 and 2, as such, the said contention cannot be accepted. He also relied on a decision reported in Milap Carriers Vs. National Insurance Co., Ltd. And another[2], wherein it was held that if the loss is beyond the control of the common carrier, there is no liability. The above judgment has no application to the facts of the case. 15. In a decision reported in Hindustan Corporation (Hyderabad) Pvt. Ltd., rep. by its Director Vs. United India Fire and General Insurance Co. Ltd., rep. By its Senior Divisional Manager and Anr.[3], where-under, it was held that a common carrier cannot contract out of its liability for damages caused due to negligence of the carrier by carrying the goods at owners risk. 16. Therefore, for all the above reasons, I have no hesitation holding that the damages were caused due to the rash and negligent driving of the vehicle by the driver of the appellant and consequently, the appellant alone is liable to pay compensation. Accordingly, points are answered. 17. In the result, appeal is dismissed with costs. Date: 18-02-2011. ________________________ N.R.L.NAGESWARA RAO, J INL [1] AIR 1997 SUPREME COURT 3444 [2] 1995 ACJ 745 [3] 1996(2) ALD1128 (D.B.)