IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 18th DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.85 of 1998 BETWEEN: Beena Roadlines Pvt. Limited, Hyderabad. … APPELLANT (S) And United India Insurance Company Limited and another … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.85 of 1998 JUDGMENT: Appellant, a transport company, is the defendant in O.S.No.912 of 1990 on the file of the Court of VI Additional Judge, City Civil Court, Hyderabad (trial Court). It filed this appeal questioning the judgment and decree dated 15.04.1998 by which the trial Court decreed the said suit against it for a sum of Rs.96,153/- granting future interest at 12% per annum from the date of the suit to the date of realization. 2. The admitted circumstances which led to the filing of the suit are these. The first plaintiff is M/s.United India Insurance Company Limited and the second plaintiff is the Indian Drugs and Pharmaceuticals Limited, Hyderabad. The defendant is a transport company with its registered office at Hyderabad. At the instance of the second plaintiff or on an order placed by it, the defendant loaded 24000 litres of denatured spirit on 25.10.1988 from a factory called M/s.K.C.P. Limited at Vuyyuru for unloading the same at the premises of the second plaintiff at Hyderabad. The defendant also gave a lorry receipt bearing No.123 dated 25.10.1988 acknowledging the loading of 24000 litres of denatured spirit to be supplied to the second plaintiff. The defendant provided an oil tanker ABT 1144 for transporting the above denatured spirit or consignment. The said entire consignment was insured with the first plaintiff against any loss or damage during the transit. 3. The above consignment was lost due to a fire accident near Kolluru on 27.10.1988 when the above tanker caught fire. Thereafter, the second plaintiff gave a legal notice dated 12.01.1989 to the defendant calling upon it to pay the loss but the defendant gave a reply dated 19.01.1989 repudiating the claim of the second plaintiff. The other details are not necessary. Subsequently, the first plaintiff i.e. the insurance company being the insurer of the consignment paid a sum of Rs.96,153/- to the second plaintiff towards the value of the consignment and obtained a letter of subrogation dated 28.03.1990 from the second plaintiff. 4. Thereafter the first plaintiff by a notice dated 15.05.1990 called upon the defendant to pay the above amount to it when the defendant did not pay the same. Hence, impleading the second plaintiff to the suit the first plaintiff brought the suit O.S.No.912 of 1990 for recovery of the above amount of Rs.96,153/- with future interest at 12% per annum from the date of the suit to the date of realization. The plea of the first plaintiff is that the defendant is a ‘carrier’ within the meaning of the Carriers Act, 1865 (for short Act), and that the accident occurred due to the negligence of its staff in transporting the consignment and therefore in the above circumstances as the first plaintiff paid a value of the consignment to the plaintiff and obtained the letter of subrogation the defendant as a carrier is liable to pay the amount of Rs.96,153/- to it as claimed by it. 5. The defendant admitted about the loading of the 24000 litres of denatured spirit in its tanker ABT 1144 and alsothe destruction of the consignment in a fire accident which occurred on 27.10.1988 at Kolluru on the way to Hyderabad in which the whole consignment was lost. The plea of the defendant is that it also lost its tanker in the said fire accident and though it took all the necessary care to transport the consignment in a safe manner. It denied that the fire accident occurred due to its negligence or carelessness and pleaded that the accident occurred in the circumstances beyond its control and therefore it was not answerable for the claim. It further pleaded that any survey got conducted by the plaintiffs is not binding on it and the value of the consignment is also far less than what is claimed by the plaintiffs. It further pleaded that it is not a ‘carrier’ within the meaning of the provisions of the Act and therefore in the above circumstances it is not answerable for the claim. 6. The trial Court framed the issues on the above pleadings. The details of the oral and documentary evidence let in by both sides in support of their respective cases are shown in detail in the appendix of evidence given at the foot of the trial Court’s judgment and therefore they are not repeated here. The trial Court after considering the said evidence has by its judgment and decree dated 15.04.1998 granted a decree for Rs.96,153/- along with interest claimed by the plaintiff against the defendant holding it responsible for the loss of consignment. 7. In this appeal, the learned counsel for the defendant raised two points. The first is that the defendant is not a ‘common carrier’ as defined in the Act and the trial Court did not consider this plea of the defendant. He further pointed out that the trial Court failed to notice that the driver of the tanker and the other staff of the defendant took all the care necessary to transport the consignment in a safe manner and despite the same the accident occurred and therefore it can be said to be an act of God and the defendant cannot be made liable for the same. The second point raised by him is that the plaintiff did not lead any evidence regarding the value of the consignment and the trial Court just granted the decree for the amount claimed by the plaintiffs and therefore it committed an error in this behalf also and consequently the judgment under appeal has to be set aside. The learned counsel for the plaintiffs on the other hand repelled both the above contentions of the defendant’s counsel and argued that going by the lorry receipt and the other evidence which was considered by the trial Court there is no ground to disturb its judgment. Thus the following points arise for determination in this appeal. (1) Whether the defendant is not a common carrier within the meaning of the Act and whether it took the care expected of a diligent person to transport the consignment and whether in any event it is not liable for the loss in view of the terms of Ex.B.1 tender document? (2) Whether the plaintiffs have been able to establish the exact value of the consignment which was lost and if not whether their claim can be upheld. (3) Whether the plaintiffs are entitled to 12% interest? (4) To what relief? Point No.1: 8. It may be noted that on the date of the fire accident i.e. 27.10.1988 in which the consignment was lost, the Carriers Act, 1865 was in force. It was subsequently repealed by the Carriage By Road Act, 2007, which came into force on 29.09.2007. Thus the suit claim has to be adjudicated under the Act. The question whether the defendant is a ‘common carrier’ or not has to be determined with reference to its definition under the Act. Section 2(a) of the Act defines the expression ‘common carrier’. According to it, ‘common carrier’ means a person, other than the Government, engaged in the business of transporting property under multi-model transport document or of transporting for hire property from place to place by land or inland navigation for all persons indiscriminately. 9. In the present case, the defendant’s plea is that it is not doing the business of transporting goods for all persons indiscriminately from one place to another. D.W.1, Vinod Kumar Gupta, who is the Executive Director of the defendant company stated so in his evidence. He however admitted that the defendant has been carrying on transport business. Normally, this expression ‘doing transport business’ would indicate that the defendant is in transport business and he is transporting the goods of everybody who approaches it for hire or reward. The defendant did not lead any evidence to show that it has been transporting the goods of certain persons selectively and it was not transporting the goods of all persons indiscriminately. The burden of proving the above aspect lies upon the defendant and it has not been able to discharge that burden. Hence, it is held that the defendant is a ‘common carrier’ within the meaning of the Act. 10. Once the defendant is held to be a ‘common carrier’ within the meaning of the Act, its liability is governed by Sections 8 and 9 of the Act. Section 8 says that every common carrier shall be liable to the owner for loss of or damage to any property entrusted to it where such loss or damage has arisen from the criminal act of the carrier or of any of his agents or servants or where such loss or damage has arisen from the negligence of the carrier or of any of his agents or servants. Further Section 9 says that in any suit brought against a common carrier for the loss/damage or non- delivery of goods entrusted to him or it, it shall not be necessary to the plaintiff to prove that such loss or damage occurred due to the negligence or criminal act of the carrier or his or its servants or agents. Thus, Sections 8 and 9 govern the liability of the common carrier. 11. Asserting that the defendant was not negligent, D.W.1 in his evidence stated that the driver of the tanker has taken all necessary cautions to avoid the accident and he also stated that the condition of the road at the place of fire accident on the route from Vuyyuru to Hyderabad was bad and that road condition was also responsible for the accident. The defendant however failed to examine the driver of the tanker to show what precautions he took to avoid the accident and also to speak about the road condition which was also responsible for the accident as pleaded by the defendant. It may be noted that in the written statement in para-3 thereof it is stated that when the tanker was crossing a bridge on the way there was a leakage in the tank and it was also found by the driver that the main pipe of the tanker was damaged and the driver and other employees tried their level best to plug the leakage but could not succeed their best efforts. 12. It should be noted that the consignment in question is admittedly 24000 litres of denatured spirit and it cannot be said to be a substance which is not inflammable. The averments in the written statement show that there was a leakage in the tank in the main pipe of the tanker was also damaged but the defendant pleaded that this was due to bad road condition. No expert evidence was let in by the defendant to show that the tanker in question was otherwise fit for transporting the denatured spirit and that it developed the above defects because of the bad road condition. Even otherwise the driver of the tanker ought to have taken a road which was safe for the consignment. In the above circumstances and in the absence of any evidence from the side of the defendant to prove its plea, the very averments in the written statement would show that the tanker was defective and the defendant negligently used such a tanker for transporting the consignment. Its further failure to examine the tanker’s driver would also become a strong ground for rejecting its plea that it was not negligent and the accident occurred due to an act of the God. 13. Then turning to its plea based on Ex.B.1. This Ex.B.1 is a tender schedule for transportation of denatured spirit from various distilleries located in our State for the year 1988-89 to the second plaintiff. Condition No.11 of this Ex.B.1 says that in the case of an accident, theft etc., during transit the carrier should lodge the FIR with the nearest police station and inform the local representative of the first plaintiff insurance company and arrange spot survey and that information relating to accident should be furnished to the second plaintiff telegraphically within 24 hours. It also reads that full details have to be furnished to the second plaintiff to prefer claim with the first plaintiff. It then reads that if the carrier fails to comply with the above requirements it will be made totally responsible for the loss and the second plaintiff will not be liable for any damage to the vehicle. 14. The defendant’s version is that soon after the accident it informed the same to the nearest police station and also the second plaintiff as well as the first plaintiff’s representative and therefore it cannot be made liable for the claim. There is no force in this contention. As already seen supra the leakage in the tanker and its defective main pipe would show that the defendant acted negligently. Further the above condition No.11 in Ex.B.1 only enjoins the carrier to give police report about the accident and information to the second plaintiff and the first plaintiff only to enable them to pursue their remedies. The more important term in condition No.11 is that the carrier cannot make any claim against the first plaintiff for damage to the vehicle on any ground. This provision is made in order to avoid the second plaintiff’s liability to the carrier on an allegation that the second plaintiff suppressed information about the nature or quality of the consignment. Hence Ex.B.1 cannot come to the rescue of the defendant. 15. In HINDUSTAN CORPN. (P) LTD. vs. U.I.F.G. INSURANCE CO. LTD.[1] relied upon by the learned counsel for the plaintiff it is laid down, after considering Sections 6 and 8 of the Act that a carrier cannot contract out of its liability for damages caused due to its negligence. In this case, it is already noticed supra that there was negligence on the carrier/defendant in using a defective tanker and also its failure to examine the driver and its other servants to show that there was no negligence on its part. Hence, the above condition in Ex.B.1 in any event cannot help the defendant. Accordingly, for the aforesaid reasons this point is decided against the defendant. Point No.2: 16. Then coming to this point, it is true that the plaintiff did not obtain any receipt from the consignor i.e. M/s.K.C.P. Limited about the value of the 24000 litres of denatured spirit except mentioning in the plaint that the value of the consignment is Rs.96,153/-. No document is also filed by the plaintiffs to show the value of the consignment was estimated at Rs.96,153/- following a survey after the accident. It may however be noted that D.W.1 the Executive Director of the defendant company in his chief-examination itself admitted that the value of the consignment would be more than Rs.50,000/-. 17. It may then be noted that the plaintiffs filed a copy of the lorry receipt dated 25.10.1988 and it is marked as Ex.A.8. D.W.1 admitted that Ex.A.8 is the lorry receipt issued by it and this Ex.A.8 was issued by the defendant after loading the consignment in its tanker the number of which is also given in it. This Ex.A.8 is a photostat copy of the original lorry receipt and the matter written in it is not clear. However, a perusal of Ex.A.8 shows that the value of the denatured spirit i.e. the consignment in question is shown as Rs.84,162.08 ps. The plaintiffs have not made it clear as to on what basis they valued the consignment at Rs.96,153/- and P.W.1 did not explain it in his evidence also. In the circumstances the value of the consignment lost is fixed at Rs.84,162.08 ps on the basis of Ex.A.8 lorry receipt copy which is filed by the plaintiffs themselves. Therefore, the defendant, it follows, would be liable only for this amount. 18. In the above decision relied upon by the plaintiffs’ counsel it is also laid down that an insurer who satisfies the claim of the owner of the goods and gets subrogated to the said claim can sue the common carrier and recover that amount vide Section 135 of the Transfer of Property Act. There was no dispute between the parties on this aspect. Hence, it follows that the defendant would be liable to plaintiffs especially the first plaintiff for the amount of Rs.84,162.08 ps only for the loss of the consignment i.e. 24000 litres of denatured spirit. This point is also accordingly decided against the defendant. Point No.3: 19. Regarding interest the trial Court granted 12% simple interest per annum on the amount decreed by it from the date of the suit to the date of realization. This rate of interest and the period for which it is granted are considered reasonable. In the grounds of appeal nothing is specifically mentioned as to how the rate of interest granted by the trial Court and also the period for which it is granted are unreasonable or illegal. Hence, the finding on the question of interest given by the trial Court is confirmed. Point No.4: 20. In the result, this appeal is partly allowed with proportionate costs and the liability of the defendant is fixed only at Rs.84,162.08 ps and the decree of the trial Court is accordingly modified with subsequent interest only on the said amount as granted by the trial Court. ______________________ N. RAVI SHANKAR, J 18th January, 2011. CVRK [1] 1996 (2) ALD 1128 (D.B.)