1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 760 OF 2005 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. A.H.Kasliwal, Advocate for the appellant. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 16/11/2010 PER COURT : 1. This is defendant no. 1’s Second Appeal. 2. The Suit filed by present respondent no. 1/original plaintiff was partly decreed by the Trial Court to the extent of Rs. 35,685/- . By the said decree, the original defendant nos. 1 and 2 i.e. present appellants and respondent no. 3 were jointly and severally made liable to pay the said amount to the plaintiff. Defendant no. 1 filed Appeal before the District Court. The District Court dismissed the Appeal and confirmed the Judgment and Decree passed by the Trial Court. 3. Mr. Kasliwal, the learned counsel for the appellant submits that the present appellant could not have been made liable to pay the said amount 2 in view of the fact that there was no contract between the present appellant and the original plaintiff. Just because the appellant was the owner of the vehicle, he has been made liable. Mr. Kasliwal, the learned counsel further submits that even taking the bare facts as they are, does not prove that the fodder caught fire due to the ignition of the truck. He submits that even the Officer from the R.T.O. office has been examined, who has proved the fitness certificate of the truck. In such circumstances, no spark could have been emitted from the said truck for the fodder to catch fire because of the emission of the spark from the truck. Mr. Kasliwal also submits that in any case, the appellant would be entitled for set off of the amount of transportation. 5. With the assistance of the learned counsel, I have gone through the Judgments delivered by the Courts. Both the Courts have come to the conclusion on assessing and evaluating the evidence on record that the driver of the truck raised the accelerator of the Truck excessively, as the fodder was lying every where, because of which the spark emitted. As the fodder was dry, it caught fire. The same was due to the rash and negligent act of defendant no. 2, who was the driver of the truck. Even if it is assumed that the plaintiff does not prove the contract between the defendant no. 1 and the plaintiff, still as it is held by both the Courts that fodder caught fire because of the rash and negligent act of defendant no.2, who is the 3 driver of the vehicle, the owner would be vicariously held liable. The appellant would have been entitled for the legal set off, had he claimed the same in the Written Statement. There was no set off claimed in a manner required by the Code of Civil Procedure nor any grievance was put. It was not the case of equitable set off but legal set off. 6. In light of the same, no error is found in the Judgments passed by the Courts below. The Second Appeal being sans merit, is dismissed, however with no order as to costs. 7. In view of dismissal of Second Appeal, Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 760.05