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 CITY CIVIL COURT APPEAL No. 11 OF 2001 BETWEEN: M/s Menlyn Transport Pvt. Ltd., …APPELLANT AND National Insurance Company Limited and another …RESPONDENTS The Court made the following: HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL No. 11 OF 2001 JUDGMENT: The defendant in O.S.No. 1142 of 1992 on the file of 4th Senior Civil Judge, City Civil Court, Hyderabad, is the appellant herein. 2. The allegations in the plaint go to show that the consignment of phenol (chemical) was entrusted to the defendant on 27-05-1991 by he 2nd plaintiff, for transport from Mangalore to Hyderabad. The goods were insured with the 1st plaintiff. The goods were transported in the vehicle of the defendant. While the consignment was under transport, on 30-05-1991 at about 5-30 P.M., the truck met with an accident at a distance of 3 or 4 Kms from Jadcherla and the property was lost to a quantity of 9400 Kgs as against the consignment of 12620 Kgs. Thereafter, the loss was assessed and the 2nd plaintiff claimed the money from the 1st plaintiff and the 1st plaintiff has paid the amount. Thereafter under the right of subrogation, the 1st plaintiff has claimed money from the defendant. The defendant did not pay the amount. Hence the suit. 3. The defendant filed a written statement denying the liability and also denying the accident, the jurisdiction of the Court and the limitation were also canvassed. The right of the 1st plaintiff to institute the suit was also disputed. The claim for damages is excessive. The defendant is only a private carrier and there is no negligence and consequently, when the incident was due to the act of God, no liability can be fixed. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether plaintiff is entitled to the suit claim and interest as prayed for? 2) Whether this Court has no territorial jurisdiction to entertain the suit? 3) To what relief? 6. On behalf of the plaintiffs PWs. 1 to 3 were examined and marked Exs.A-1 to A-16. On behalf of the defendant DW.1 was examined and marked Exs.B-1 to B-7. 7. After considering the evidence on record, the learned IV Senior Civil Judge, City Civil Court, Hyderabad, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the damages claimed by the plaintiffs are true? 2) Whether the defendant is liable to pay the suit amount? 3) Whether the judgment and decree passed by the learned IV Senior Civil Judge, City Civil Court, Hyderabad, is legal and sustainable? 9. POINTS: The learned counsel for the appellant reiterating the several contentions before the lower Court pleaded that the appellant is only a private carrier and not a common carrier and therefore, the provisions of the Carriers Act do not apply (for short, “the Act”). It was also pleaded that there was no rashness or negligence on the part of the driver and consequently there is no liability on the defendant. It was further pleaded that the proof of damages is not proved and hence, the claim of the 1st plaintiff is not enforceable. 10. The fact that the appellant is the owner of the lorry that was engaged for transporting the Phenol is not in dispute. The fact that the vehicle was involved in an accident and the goods were lost is also not in dispute. The contention of the appellant is that the incident was due to the act of God. Evidently, the evidence of DW-1 clearly goes to show that the vehicle was met with an accident, a panchanama was conducted at the scene of offence under Ex.A-2 and it shows the involvement of the vehicle, which was booked for consignment and belonging to the defendant. 11. The defendant has not examined the driver of the lorry to show that there was no rashness or negligence on his part and that it was only an act God. So far as the contention that the appellant is not a common carrier is concerned, no documents are filed on behalf of the appellant to show that he was only a private carrier. It is not his plea that under any personal obligation, the goods were transported. In fact, the invoice clearly goes to show that the vehicle was booked under Ex.A-3. The definition of common carrier is as follows: 2. Interpretation clause:- In this Act, unless there be something repugnant in the subject or context,- “common carrier” denotes a person, other than the Government, engaged in the business of [transporting property under multinodal transport document or of] transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately; “person” includes any association or body of persons, whether incorporated or not. 12. Therefore, when once the appellant is a common carrier, the proof of rashness or negligence is not necessary under Section 9 of the Act. Learned counsel for the appellant contends that there is no proof of damages and the surveyor was not examined. Evidently, a surveyor was appointed and he has given the assessment of the damages. The insurance company has got assessed the loss. The lower Court also rejected the claim on the basis of Ex.B-1 about the non-liability as a private carrier since the said letter was long after the incident. It was also noticed by the lower Court that no such plea was taken in the written statement. 13. So far as the jurisdiction issue is concerned, the lower Court found that Ex.B-2 relates to the conferring of the jurisdiction at Hyderabad. In Ex.A-1, there is no specific mention about excluding the jurisdiction of other Courts. Evidently, Ex.A-1 is printed proforma and there is no material to show that the parties have consciously agreed to host the jurisdiction. 14. The learned counsel for the respondent contended that there is no need to examine the surveyor and he relied on a decision reported in M/s. Economic Roadways Corpn., Hyd., Vs. National Insurance Co., Hyd., & Anr.,[1] 15. He also relied upon the following decisions to substantiate his contentions about the liability of the defendant: 1) Kerala Transport Co. Vs. Kunnath Textiles[2] 2) Prakash Road Lines (P) Ltd. And another Vs. H.M.T. Bearing Ltd [3]. 3) Thiruppathi Venkatachalapathy Lorry Service Vs. The New India Assurance Co., Ltd., and others[4] 4) M/s. Globe Transport Corporation, Bangalore Vs. National Insurance Company Ltd., office at Bank Street Hyd., and another[5] 16. From the above decisions, it is clear that the defendant being a common carrier cannot avoid the liability. The proof of damages is proved by the fact that the 1st plaintiff has paid money to the 2nd plaintiff and that amount has to be paid by the defendant. The lower Court has given sufficient reasons and I do not find any reason to come to a different conclusion. There are no merits in the appeal. 17. In the result, the appeal is dismissed. There shall be no order as to costs. Date: 18-02-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL No. 11 OF 2001 18th February, 2011 INL [1] 2002(1) L.S. 128 (D.B.) [2] 1984 A.C.J. 440 [3] 2001 ACJ 40 [4] (D.B.) II (1988) ACC 102 [5] 1989(1) ALT 373