THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.548 OF 1992 JUDGMENT:- The defendants in O.S.No.87 of 1988 on the file of the Court of Subordinate Judge, Nizamabad are the appellants herein. The suit one was filed for recovery of Rs.7,71,898-26 paise being the value of the goods that were lost in a transit. The allegations in the plaint go to show that the first plaintiff is the proprietary firm and has got ten (10) Lorries and a common carrier. The first plaintiff has insured with the defendants for accident policy worth Rs.7 lakhs valid up to 07-05- 1988. The vehicle bearing No.ATJ 8717 belongs to the first plaintiff which was insured with the defendants. It was further averred in paras 7 to 9 of the plaint as under:- 7) That on 04-07-1987 the plaintiff loaded the finished beedies (940 bags) at Nizamabad in the above paid vehicles from M/s.Patel & Sons for Ganesh traders as per the Bills and proceeded to Kilianwali of Haryana State. The Bills of loading and the permit are filed herewith. 8) That unfortunately on 8-7-1988 the said vehicle (lorry No.ATJ.8717) of the plaintiff along with the above loaded goods was burnt by some unknown excited mob indiscriminately near “Hissar Cantonment” in the Haryana State in the result, the entire lorry along with the above loaded goods (beedies) was completely burnt on the spot. The said incident was reported to the concerned police and all the legal procedure were completed. After the said incident, the plaintiff informed the same to the defendants on 10-07-1987 through a letter the office copy of which is filed herewith. 9) That the plaintiff received a letter dated.11-07-1987 from M/s.Ganesh Traders along with the claim details in which he also mentioned about the incident and demanded for return of the value of his goods (beedies) which was burnt in the fire accident, as stated above which were being carried in the plaintiff vehicle (Lorry No.ATJ 8717). As per the demand letter of M/s.Ganesh Traders, the value of the said loaded goods is Rs.6,09,916-60 paise plus Rs.12,582-00 towards transporting charges; total comes to Rs.6,22,498-60 paise. The said letter including estimates are filed. It was further averred that on 04-08-1987 the first plaintiff informed the defendants the above claim. In spite of repeated demands by the first plaintiff to meet the repayment to the consignee, the defendants have evaded to pay the amount and hence the suit. The defendants filed a written statement admitting the insurance of the vehicle. The plaintiff has put to strict proof of the allegations made in the plaint. There is no cause of action to file the suit. The lost was due to the acts beyond the control of the carrier and its driver. The circumstance under which the loss was caused excludes the liability of the defendants. The owner of the goods has not served any notice under Section 10 of the Carriers Act,1865 and therefore the suit is not maintainable. The allegations that on 11-07-1987 the consignee M/s.Ganesh Traders issued a claim to the defendants is denied. The defendants are therefore not liable to pay the compensation. Subsequently, original consignee M/s.Ganesh Traders and its partner came on record as plaintiffs 2 to 9. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the plaintiff as a carrier has got liability to pay compensation to owners of the goods and as such defendants are not liable? 2. Whether transaction charges are cleared by insurance? 3. Whether suit is barred by limitation? 4. Whether this court has jurisdiction? 5. Whether the plaintiff is entitled for interest? 6. To what relief the parties are entitled to? On behalf of the plaintiffs, PWs.1 to 3 were examined and marked Exs.A-1 to A-28. On behalf of the defendants DW.1 is examined and no documents got marked. After considering the material on record, the learned Senior Civil Judge decreed the suit of the plaintiffs and aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the appellants are not liable to pay the suit amount? 2. Whether the claim of the plaintiffs is true? POINTS:- So far as the fact of insurance of the vehicle with the appellants is concerned, there is no dispute. The fact that the lorry carrying the goods belongs to the second plaintiff and others were burnt and the goods were damaged is also not in dispute except the cause of the said accident. It is also admitted that the first plaintiff has received the value of the loss suffered due to burnt of the lorry. The learned counsel for the appellants contends that the first plaintiff has not paid the amount to the consignee M/s.Ganesh Traders and without paying the amount, insisting on the appellants to pay the money for payment of the same to the consignee is not valid. It was also further pleaded that there is no notice as contemplated under Section 10 of the Act and the interest granted @ 12% is not proper. The evidence of DW.1 clearly goes to show that a valid policy of insurance Ex.A-25 was issued on 07-05-1987 and it covers the risk for riots and strikes and an additional premium was also collected. The evidence on record clearly goes to show that the driver has taken the vehicle in spite of repeated warnings of riots in part of Hissar District where the goods were meant for transport and consequently the lorry was burnt and the property was lost. It is also not in dispute that after the incident, the first plaintiff received the claim from the consignee under Ex.A-3 and the same was forwarded by the defendants under Ex.A-26. In fact, on 04-08-1987 the claim was made by the owner of the truck under Ex.A-23 with regard to loss and the amount. A copy of it was also marked to the second defendant. In Ex.A-28 letter dated 31-12-1987 the defendants have informed the first plaintiff that they are receipt of the claim along with the letter submitted by the second plaintiff and further informed that the claim had already been processed and the papers were forwarded to the Hyderabad. This letter was addressed by the Nizamabad branch. Therefore, this document, Ex.A-28, clearly disclose that the appellants have received the notice of the claim and they promised to settle the claim. Therefore, in view of Ex.A-28, it is not open to the appellants that the provisions under Section 10 of the Act have not been complied with by the plaintiffs. The evidence of DW.1 goes to show that a Surveyor was appointed and the entire consignment of 940 bags of beedies were burnt. Exs.A-2 to A-17 clearly goes to show the value of the property. Evidently, the defendants have not paid the amount in spite of its liability and therefore in view of the above circumstances the contention of the appellants that they are not liable to pay the amount cannot be accepted and the lower court has rightly fixed the liability. So far as the interest is concerned, evidently it is a commercial transaction and the appellants have not paid the amount in spite of promise under Ex.A-28 and on the other hand denied the liability. Therefore, in view of the above circumstances, the judgment and decree passed by the lower court does not call for any interference and accordingly the appeal suit is liable to be dismissed. The points are therefore answered. In the result the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 15-09-2011 TSNR