IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A No.1 OF 2001 Between: M/s. A.T.O. India (Pvt.) Ltd., Calcutta, Having branch at Nizamabagh, Diwan Devdi, Hyderabad- 500 002. - - - Appellant/ Defendant. AND M/s. The Oriental Insurance Co. Ltd., Divisional Office – IV, Khairatabad, Hyderabad and another. - - - Respondents/ Plaintiffs. The Court made the following: THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A No.1 OF 2001 ORDER: The defendant in O.S. No.976 of 1993 is the Appellant herein. The suit was filed by the plaintiff for recovery of a sum of Rs.1,41,890- 7 2 paisa being the value of the goods and interest which were damaged during the transit. The allegations in the plaint goes to show that the first plaintiff is the insured and the second plaintiff is the insurer and on 29-06-1991, the consignment of Copper Wound Cast Rasin, Dry Type, Transformer from Calcutta to Lalpania, Giridh District, Bihar. A policy of insurance was taken with the first plaintiff by the second plaintiff. The defendant is the common carrier and the goods were booked at the owner’s risk. While the tools are under transit on 04-07- 1991 near Rambhaghat in Orissa due to rash and negligent driving of the lorry by its driver, the vehicle met with an accident and the goods were damaged. The second plaintiff suffered loss of Rs.1,52,015/- thereafter, the second plaintiff made a claim with the first plaintiff in accordance with Section 10 of the Carriers Act and independent survey was conducted by the surveyor. The first plaintiff has paid a sum of Rs.1,18,680/- to the second plaintiff and obtained a letter of subrogation from the second plaintiff and thereafter made a claim against the defendant for payment of the amount. In spite of demand the defendant did not pay the money and hence this suit. 2. The defendant filed a written statement admitting the undertaking of transport of the goods and the involvement of the vehicle in the accident. It was further pleaded that the suit is to be barred by time and the Court has no jurisdiction. It was further pleaded that the goods were booked at owners risk and the so called accident was not due to the fault of the driver of the lorry and it was an act of god. It was further pleaded that no notice under section 10 as contemplated under Carriers Act was given. The quantum of damages and the interest claimed is excessive and therefore the defendant pleaded for dismissal of the suit. 3. On the basis of the pleadings, the following issues were framed for trial : 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the suit claim is barred by time? 3) Whether this court has no territorial jurisdiction to try the suit? 4 ) Whether the plaintiffs are not entitled for the suit amount? 5) To what relief? 4. On behalf of the plaintiffs PW.1 was examined and marked Exs.A-1 to A-11. On behalf of the defendant, DW.1 was examined and no documents are marked. 5. After considering the evidence on record the learned I Senior Civil Judge, City Civil Court, Hyderabad, decreed the suit of the plaintiffs for a sum of Rs.1,41,890-72 with subsequent interest at the rate of 12% p.a. from the date of the suit till the date of its realization. 6. Aggrieved by the said decree the present Appeal is filed. 7. Now the points that arose for consideration are : 1) Whether the defendant is liable to pay the suit amount? 2) Whether the decree and judgment passed by the learned I Senior Civil Judge, City Civil Court, Hyderabad, is legal and sustainable? 8. Points Nos.1 and 2: Evidently the defendant-appellant is the common carrier and the liability of the appellant arises when once it is established that the vehicle was involved in the accident due to rash and negligent driving of the vehicle by its driver. If once proof of rashness and negligence by the driver of the vehicle is proved, then the contention of the incident being an act of god can not be considered. In this connection in order to substantiate the proof of the incident PW.1 was examined and surveyors report was also filed who has inspected the scene and also submitted the report added to that under Section 9 of the Carriers Act, there is no need to prove rashness or negligence on the part of the carrier when once entrustment of the goods is proved in view of the fact that the invoice Ex.A-1 and the consignment report Ex.A-2 clearly shows that the goods were booked with the appellant. Therefore, the appellant cannot deny the liability so far as the quantum of damages are concerned. In fact, the surveyors report and also the value of the goods booked clearly establish the quantum of loss that has been suffered by the second plaintiff. The fact that the first plaintiff has paid the amount to the second plaintiff covering the risk is also not disputed. The appellant also cannot contend that insurance policy was at owners risk under the Carriers Act the liability of the appellant is not proved and that there is no liability to the appellant. It is fairly considered that in view of the provisions under Carriers Act, the appellant cannot escape liability since the liability is absolute under the Act. Therefore, in view of the above circumstances none of the contentions raised by the appellant are tenable. The fact that the first plaintiff obtained subrogation letter under Ex.A-10 also entitles the first plaintiff to recover the amount. The learned counsel for the appellant contends granting of interest at 12% p.a. from the date of the suit till the date of realization granted by the lower Court is excessive any way under Section 34 of I.P.C. Generally the Court cannot grant interest beyond 6% from the date of decree unless it is a commercial transaction. The transportation of the goods and the contract of insurance of such goods cannot come within the definition of a commercial transaction to invoke the discretion as given under Section 34 of the C.P.C. Therefore taking into consideration the above fact, I feel the interests of Justice would be met if the interest is granted at 12% p.a. from the date of the suit till the date of decree and at 6% p.a. from the date of decree till the date of realization 9. It is contended by the learned counsel for the appellant that interest at the rate of 18% p.a. prior to the filing of the case was claimed and it was granted by the Court. Taking the above submission of the counsel for the appellant, I feel the Interests of Justice would be met if the interest is granted at 6% on the principal sum of Rs.1,18,680/- from the date of the suit till the date of realization. 10. With the above direction, the judgment of the lower Court is confirmed, Appeal is allowed in part while confirming the liability of the appellant for damages of the suit of the plaintiff for a sum of Rs.1,41,890-72 is decreed with further interest at 6% p.a. from the date of suit till the date of realization on the principal sum of Rs.1,18,680. Each party do bear their own costs. ________________________ , N.R.L. NAGESWARA RAO, J Date: 15-12-2010 DSH.