R.S.A. No. 1522 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1522 of 2009 (O&M) Date of decision: 24.04.2009 Northern Carriers Pvt. Ltd. ....appellant versus The National Insurance Company Limited and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. A.S. Randhawa, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 29.11.2008 passed by the learned Courts below vide which the suit filed by the National Insurance Company Limited for recovery of damages stands decreed. The learned Courts below, on appreciation of evidence have recorded, a concurrent finding of fact, that the plaintiff/respondent is entitled to revover the amount of Rs.7,65,000/- i.e. principal amount and interest. The amount was claimed on the ground, that the plaintiff/respondent paid, the insured amount to the owner of the goods entrusted to defendant/appellant for carriage purposes. Due to welding carried out to repair tie-rod of the truck, goods, R.S.A. No. 1522 of 2009 (O&M) -2- which were highly inflammable, caught fire. Resultantly, whole of the goods were lost. The learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law: - "1. Whether the learned Courts below could decree the suit for recovery filed by the company, without proving negligence on the part of the defendant/appellant? 2. Whether the defendant/appellant, who did not have any direct contract with the owner of the goods, could be burdened with the liability?" In support of the first substantial question of law, the learned counsel for the appellant contends that the learned Courts below, erred in law in decreeing, the suit filed by the plaintiff/respondent, even though negligence on the part of defendant/appellant was not proved. It is also contended by the learned counsel for the appellant that it was a case of accidental fire for which no liability could be fixed upon defendant/appellant, especially when every care was taken to protect the goods. It is further the contention of the learned counsel for the appellant that admittedly the defendant/appellant did not have direct contract with the owner of the goods, which was, in fact, given to National India Transport Company, to whom notice was also sent. The substantial questions of law raised deserve to be answered against the appellant, as it is settled law that the liability of any carrier is absolute except in case of 'force majure'. In the present case, fire R.S.A. No. 1522 of 2009 (O&M) -3- occurred due to repair of tie-rod by welding, could not be said to be an act of God, but act of negligence on the part of the defendant/appellant. In absence of proof that the accident was result of force majure, the learned Courts below were justified in decreeing the suit. This view finds support by judgment of the Hon'ble Kerala High Court in South Eastern Carriers (P) Ltd. Vs. Oriental Fire and Gen. Ins. Co. Ltd., 2004(2) RCR (Civil) 754. The second substantial question of law raised also cannot be sustained in view of the finding recorded by the learned Courts below, that the stand taken by the defendant/appellant was not proved for want of production of invoices, i.e. basic document admissible in evidence. The findings have been recorded on appreciation of evidence, which are not open to challenge in regular second appeal. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge April 24, 2009 R.S.