IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 AS.No. 332 of 2002() ------------------------- OS.254/1995 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): PLAINTIFF: -------------------------------- T.C. ISAC, S/O. M.C. CHAKKO, R.C.NO.11/403, DEVASWAM BOARD JUNCTION, KAVIDIYAR POST, TRIVANDRUM-3, OWNER KAIRALY TRANSPORT CO., ANAMALA ROAD, HILLS TURIST HOME, CHALAKUDY, REP. BY POWER OF ATTORNEY HOLDER ALBERT, S/O. KAITHAVALAPPIL VARGHESE, PARIYARAM, MUKUNDAPURAM. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): DEFENDENTS: ------------------------------------- 1. JOHNY, S/O. KOOTHOTTUNGAKKARAN AUGUSTRY EAST CHALAKUDY VILLAGE DESOM, MUKUNDAPURAM TALUK, TRISSUR DISTRICT. 2. VENUGOPAL A. THOMAS, S/O. KANNAN, KUNNAPPATHERUVU, CHINDOOR DISTRICT, ANDHRAPRADESH. R1 BY ADV. SRI.SATHISH NINAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 4166/2002 IN A.S. NO. 332/2002 DISMISSED 20/12/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. ........................................... A.S.NO.332 OF 2002 ............................................. Dated this the 20th day of December, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakuda in O.S.No.254/1995. The suit is one for damages. 2. Plaintiff is the owner of Kairali Transporting Company, who had contracted to transport oil from the refineries situated at Madras to M/s.Carbon and Chemicals India Ltd at Karimugal in Kochi. 1st defendant is the lorry owner who usually transports oil for and on behalf of the plaintiff to the above factory. On 3.10.1994, the 1st defendant took oil in his tanker lorry and, according to the plaintiff, misrepresenting as if an accident had taken place, the 1st defendant had misappropriated the oil and thereby had made the plaintiff liable to suffer an amount of ` 74,570.60 which had been deducted by M/s. Carbon and Chemicals India Ltd. He had also suffered a damage of ` 19,000/= and therefore with interest, he had claimed these amounts. : 2 : A.S.NO.332 OF 2002 3. The defendants in the written statement would contend that the case is not as stated by the plaintiff, but while proceeding, an inevitable accident on account of the heavy rain took place and really it was an Act of God and therefore the driver of the lorry, who is the second defendant, is not liable and so the defendants are not liable for damages. 4. In the trial court, issues were raised and the trial court had dismissed the suit on the ground that the accident had occurred by the act of nature and therefore liability to compensate the loss cannot be fastened on the defendants as there was no negligence on the part of the defendants. It is against that decision, the plaintiff has come up in appeal. 5. Heard the young counsel appearing for the appellant as well as the respondents. The subject matter of the case is with respect to damages caused on account of non delivery of the oil which was being transported by the first defendant at the behest of the plaintiff. The plaintiff would contend that the case of accident set up by the defendants is false and really there had been : 3 : A.S.NO.332 OF 2002 misappropriation. On the other hand, the defendants would contend that there was a heavy rain on that day and it has become an inevitable accident on account of the Act of God and therefore the plaintiff is not entitled to any compensation. 6. The learned Subordinate Judge has not really followed the provisions of the Carriers Act for rendering a decision of this nature. Under Section 9 of the Carriers Act, 1865, in any suit filed against a common carrier for the loss, damage or non delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non delivery was owing to the negligence or criminal act of the carrier, his servants or agents. So Section 9 casts an imperative liability on the transporting company and the question of negligence of criminal act is not a matter to be proved by the plaintiff in such cases. Unfortunately in the case before me, the court has toiled more on the question whether there was misappropriation or cause of the vehicle for turning down and ultimately held that negligence is not proved. I am afraid that such an approach is totally erroneous. : 4 : A.S.NO.332 OF 2002 Irrespective of the question whether it is on account of a criminal act or negligence, the carrier is liable to pay compensation to the person who had sustained the loss. The case attempted to be set up by the defendants is that of an Act of God or an inevitable accident. In the written statement it is contended that on account of the rain and slippery condition of the road, the lorry overturned and therefore it was an inevitable accident or an accident that took place of the Act of the God. 7. The learned counsel for the appellant had brought to my notice a decision of this Court reported in Pullur Periya Panchayat v. Karthiyayini (1997 (1) KLT 144). It was decided in that case that mere ravages of weather or monsoon may not by itself amount to “Act of God” unless the fury is of such a degree or dimension that no human foresight can provide against and of which human prudence is not bound to recognize the possibility”. So mere raining or slippery condition of the road, will not amount to an Act of God or an inevitable accident. 8. In a State like Kerala, there will be rainy season : 5 : A.S.NO.332 OF 2002 and bad roads. When it is rainy season and the driver is in control of the vehicle, the driver should understand that if the vehicle is driven at a higher speed or is driven carelessly and the break is suddenly applied and it may result in overturning of the lorry. Therefore unless the driver takes such a precaution, it has to be stated that the driver is responsible for the accident. Similarly the owner, who is vicariously liable for the act of the driver, has to instruct his driver to drive the vehicle carefully without causing damage to the property of the third person. Therefore mere raining cannot be a ground to hold that the accident was an inevitable one or was on account of the Act of God. Since it is not established in this case, I have to hold that the defendants have not discharged his burden under Section 9 of the Carriers Act and therefore they are liable. 9. The next question would be regarding the quantum. Ext.A9 is a document whereby it can be seen that M/s. Carbon and Chemicals India Ltd had deducted a sum of ` 74570.60 towards the landed cost of the material : 6 : A.S.NO.332 OF 2002 short received or in other words, the plaintiff's company was made liable to pay the cost of the material and that has been deducted from the amount due to the company from other transactions as well. So Ext.A9 will prove that the company has sustained a loss of ` 74,570.60 on account of the non delivery of the goods by the defendants. 10. The next question is that the plaintiff has claimed a damage of ` 19,000/=. Materials are not forthcoming to establish that factor. The amount that was recovered from the plaintiff is only the amount shown in Ext.A9. There cannot be any further loss for the plaintiff on account of the non delivery. Therefore, I hold that the plaintiff is only entitled to the amount shown in Ext.A9 that is ` 74,570.60 which I round as ` 74,570/=. Since this had occasioned on account of the conduct of the defendants, the first defendant being the owner is liable to pay the same. 11. In the result, the appeal is allowed and judgment and decree of the trial court are set aside and a decree is passed as follows: The plaintiff is given a decree for realisation of an : 7 : A.S.NO.332 OF 2002 amount of ` 74,570/= with 9% interest on the said sum from 4.10.1994 till the date of decree and at the rate of 6% on the sum of ` 74,570/= from the date of decree till realisation from the first defendant with proportionate costs. Considering the facts and circumstances of the case, parties are directed to bear their respective costs in the appeal. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.332 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.332 OF 2002 ............................................. 20th day of December, 2010. J U D G M E N T