HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL Nos.1019 OF 1999 & 1021 of 1999 Dated 2-2-2011 SECOND APPEAL No.1019 OF 1999 Between: Navata Road Transport, Canal Road Eluru, represented by its Manager. …Appellant. And: United India Insurance Company Limited, Divisional Office 11, 1-7-241/10, Second Floor, Sarojini Devi Road, represented by its Assistant Divisional Manager and another. …Respondents. SECOND APPEAL No.1021 OF 1999 Between: Navata Road Transport, Kukatpalli, Ranga Reddy District, represented by its Manager. …Appellant. And: United India Insurance Company Limited, Divisional Office, 11, 1-7-241/10, Second Floor, Sarojini Devi Road, represented by its Assistant Divisional Manager and another. …Respondents. HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL Nos.1019 OF 1999 & 1021 of 1999 JUDGMENT: These two Second Appeals arise out of the decree and judgments in A.S.Nos.56 of 1998 and 57 of 1998 passed by the learned Principal District Judge, Ranga Reddy District at Saroornagar, Hyderabad confirming the decree and judgments in O.S.No.307 of 1994 and 308 of 1994 passed by the Principal Junior Civil Judge, Hyderabad, West and South, Ranga Reddy District at Saroor Nagar. I have heard both the learned counsel. Since the points to be determined in both the second appeals are one and the same and between the same parties, they are being disposed of by a common Judgment. Parties will hereinafter be referred to as plaintiff and defendant for the sake of convenience. These two appeals have been preferred by the defendant who was unsuccessful before the Courts below. According to the version of the plaintiff in O.S.No.307 of 1994, the defendant is a common carrier carrying goods from place to place on hire and the 2nd plaintiff entrusted consignment of 200 cases i.e., 10 x 1 Litre 100 cases, 2 x 5 Litres 100 cases of Hildan 35 EC pesticide to the defendant at Hyderabad for safe custody and carriage to Bachupalli. Consignment was entrusted after it was packed safely, securely and in good condition. The consignment was insured by the 2nd plaintiff under a valid policy and the consignment was booked on 29-6-1993 and it was delivered on 12-7-1993. At the time of delivery, it was found that 30 tins of 5 Litre capacity and 30 tins of 1 Litre capacity of Hildan 35 EC pesticide were leaking and were in damaged condition. According to the plaintiff, the said leakage of loss was caused due to carelessness and negligence on the part of the defendant. The first plaintiff appointed a surveyor, total value of the loss in transit of Hildan 35 EC as per surveyor report is Rs.18,480 and a sum of Rs.1,094/- was paid to the surveyor towards his fee and expenses.. Thereafter, the plaintiff filed the suit for recovery of amount of R.19,574/-. According to the version of the plaintiff in O.S.No.308 of 1994, the defendant is a common carrier carrying goods from place to place on hire and the 2nd plaintiff entrusted consignment of 120 cases of Hildan 35 EC pesticides under invoice No.1086 dated 15-1-1993 at Kupatpally for safe custody and carriage. Consignment was entrusted after it was packed safely, securely and in good condition. The consignment was insured by the 2nd plaintiff under a valid policy and it was delivered on 19-1-1993 at Eluru. At the time of delivery, it was found by the 2nd plaintiff that 5 drums of Hildan 35 EC pesticide were leaking and were in damaged condition. According to the plaintiff, the said leakage of loss was caused due to carelessness and negligence on the part of the defendant. A survey was conducted by an independent surveyor and damage was estimated at Rs.11,270/-. The second plaintiff preferred a claim with the defendant through a registered notice dated 26-3-1993. The second plaintiff paid a sum of Rs.924/- towards surveyor fee and he is entitled to claim the same from the defendant. In all, the defendant is liable to pay Rs.12,194/- towards damages to the plaintiffs. Since the defendant did not settle the claim, the 1st plaintiff an insurer was forced to settle the claim of Rs.12,194/- On such settlement, a letter of subrogation and special power of attorney were executed by the 2nd plaintiff in favour of the 1st plaintiff on 15-5-1993 and 1–6-1993 authorising the later to initiate proceedings for recovery of damages . The contention of the defendant in both the cases is that only surveyor report was marked as Ex.A.8 but surveyor appointed by the 1st plaintiff was not examined and therefore, the quantum of damage being not established by the defendant, no decree could have been passed in favour of the plaintiff. The contention was rejected by both the Courts below and they have held concurrently that according to Section 9 of the Carriers Act, 1865 the plaintiffs in a suit for loss, damage, non- delivery not required to prove negligence or criminal act and burden lies with the common carrier. Both the courts below also took into consideration the fact that the defendant has issued Ex.A.3 Damage Certificate and therefore, it is not open for the defendant to contend that unless the surveyor is examined, the plaintiffs are not entitled for any decree. Both the Courts below have rightly considered that the burden is on the defendant who admitted that there is damage by issuing Ex.A.3 Damage Certificate and non- examination of Surveyor appointed by the 1st plaintiff is of no consequence. There is no error in respect of the finding of the fact committed by the Courts below and their concurrent findings cannot be interfered with, in this Second Appeal. No substantial question of law is involved for consideration in this Second Appeal. Therefore, the appeal itself is not maintainable. Consequently, both the Second Appeals are dismissed. There shall be no order as to costs. __________________________ Justice R.KANTHA RAO Dated 2-2-2011. Dvs HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL Nos.1019 OF 1999 & 1021 of 1999 Dated 2-2-2011