THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1348 OF 2010 Dated:15.07.2011 Between: G.Venkata Rao .. Appellant And M/s.National Insurance Company Limited, a Corporate body constituted under the General Insurance Corporation of India, having its Head Office at Calcutta and Divisional Office and Branch Offices among others places at Kakinada, represented by its Divisional Manager, Kakinada and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1348 OF 2010 JUDGMENT: The appellant is the first defendant in O.S.No.242 of 1999. The suit was instituted by respondents 1 and 2 herein (hereafter called, ‘plaintiffs 1 and 2’) against the appellant (hereafter called, ‘first defendant’) and respondents 3 and 4 for recovery of a sum of Rs.77,389/-, being the damages caused to the A.C.Sheets carried by the first defendant’s goods vehicle from Yanam to Ongole. The suit was decreed in favour of the first plaintiff and against the defendants. Being aggrieved, the first defendant alone filed appeal, being A.S.No.157 of 2009, on the file of the Court of the II Additional Senior Civil Judge, Kakinada. The same was dismissed on 23.08.2010, aggrieved by which, the present Second Appeal is filed. The plaintiffs’ case, in a nutshell, is that the second plaintiff booked consignment of A.C.Sheets to consignee at Ongole. The first defendant is a lorry supplier and transport contractor having its office at Kakinada, carrying goods to various places under proper invoices. Due to negligence of the second defendant – driver, the vehicle met with an accident on 02.12.1995. The first defendant issued consignment note in favour of the second plaintiff, based on which, the second plaintiff claimed damages from insurer – the first plaintiff. It was settled for Rs.77,389/- by way of a cheque. Thereupon, the second plaintiff executed a letter of subrogation in favour of the first plaintiff, which issued notice under Section 10 of the Carriers Act, 1865 (for brevity, the Act) to the defendants and since the first defendant denied the liability, the plaintiffs filed the suit. The first defendant opposed the suit alleging that he is a transport contractor; that he is not a carrier and that he is not liable to pay the said amount. The trial Court framed appropriate issues. On behalf of plaintiffs, PWs.1 to 3 were examined and Exs.A1 to A13 were marked. The first defendant examined himself as DW.1 and marked Ex.B1. After considering the evidence, the trial Court rejected the defence of the first defendant and decreed the suit in favour of the first plaintiff. Being aggrieved, the first defendant unsuccessfully filed the appeal before the first appellate Court and the first appellate Court confirmed the same. In this Second Appeal, learned counsel for the appellant would contend that the judgment of the lower Court is perverse and based on surmises and conjecture. Further, the evidence was not properly appreciated and there is no proper notice under Section 10 of the Act. The counsel would also submit that the first defendant is only a broker arranging goods vehicles for the purpose of transport and therefore he does not come within the meaning of carrier under the Act. After receiving the claim of the second plaintiff, the first plaintiff settled the matter by paying an amount of Rs.77,389/-. After obtaining letter of subrogation - Ex.A10, the first plaintiff issued Ex.A5 - notice under Section 10 of the Act. Immediately, they issued registered notice on 27.05.1996 – Ex.A11 to the first defendant. He did not choose to reply for the same. Yet again, the first plaintiff issued notice on 23.08.1996 – Ex.A12 to the first defendant. Even this time, the first defendant did not demur. It is only after filing of the suit, he set up a plea that he being a transport broker, neither he can be treated as a carrier nor he is liable to pay the amount. As found by the trial Court as well as the first appellate Court, he admitted that he is a lorry supplier and transport contractor and maintains an office. He further admitted that he is a person, who supplied the vehicle bearing No.ABC 7479. This evidence certainly improbablises the theory set up by the first defendant. Whether the first defendant is liable to pay the damages suffered by the consignee and his subrogee for the lost goods, is a question of fact. The Second Appeal is misconceived and is, accordingly, dismissed. There shall be no order as to costs. _______________ (V.V.S. RAO, J) 15.07.2011 KH