RSA No. 3580 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos. 11005-C and 11007-C of 2009 and RSA No. 3580 of 2009 (O&M) Date of Decision: October 08, 2009 Tulsi Transport Khemgaon ......Appellant Versus National Insurance Company and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Hari Om Attri, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM No. 11005-C of 2009 For the reasons recorded in the application, the deficiency of Court fee in filing the present appeal is made good. CM stands disposed of. CM No.11007-C of 2009 For the reasons recorded in the application, the delay of 102 days in filing the present appeal is condoned. CM stands disposed of. RSA No. 3580 of 2009 (O&M) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents for recovery of RSA No. 3580 of 2009 (O&M) 2 Rs. 51,183/- along with interest at the rate of 24% from the date of institution of suit till realisation. The appellant is a common carrier which had been contracted to transport cotton bales from Maharashtra to Hansi. On the way there was a fire and the consignment was damaged. The respondents being the insurer paid the amount to the consignee and thereafter instituted the instant suit which, as mentioned above, has been decreed by both the Courts. The following questions have been proposed:- a) Whether the learned courts below have completely overlooked and ignored the provisions of Section 8 and 10 of the Carrier's Act while decreeing the suit? b) Whether any decree could be passed in favour of the respondent plaintiff in the absence of any pleading or proof/evidence regarding negligence of carrier/appellant defendant? c) Whether any interest could be awarded over and above 6% per annum in violation to Section 34 of the Civil Procedure Code in the absence of any agreement contrary to Section 34? d) Whether the learned Courts below have overlooked the law and judgment cited by the appellant defendant and passed the impugned judgment and decree in a haste? In my opinion all the questions proposed have to be held against the appellant. The Courts below have rightly held that it was the duty of the carrier to prove that the damage caused to the goods was not as a result of any negligence on its part. No evidence was led by the appellant in this regard. Learned counsel also attacked the imposition of interest at the rate of 24% on the ground that under Section 34 of the C.P.C. interest could not be awarded beyond 6% after the date of decree. The proviso to RSA No. 3580 of 2009 (O&M) 3 Section 34 of the C.P.C. is in the following terms:- “ S. 34 xxx xxx xxx xxx xxx xxx Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction , the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate of interest or where there is no contractual rate, the rate at which monies are lent or advanced by nationalised banks in relation to the commercial transaction.” Learned counsel is not in a position to deny that the suit for recovery arose out of a commercial transaction. In these circumstances the award of interest at the rate of 24% (simple) cannot be termed to be illegal. Consequently this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 08, 2009 sunita