RSA No.1106 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1106 of 2007 Date of Decision:03.11.208 M/s Akal Goods Carrier ....appellant Versus United India Insurance Company Ltd. & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.K.S.Boparai, Advocate for the appellant Mr.D.P.Gupta, Advocate for the respondents **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal of the defendant against the judgment and decree of the trial Court vide which suit of the plaintiffs-respondents has been decreed, was dismissed. Briefly stated, the facts of the case are that plaintiff No.2 despatched a consignment worth Rs.4,03,858/- from Ludhiana to Ranchi, through the appellant(defendant No.1) who is a carrier. The said consignment was insured with plaintiff No.1. The consignment so despatched vide GR No.011180 dated 16.10.1994 was damaged due to fire which broke out in truck No.PIC-8265 which was carrying the above said consignment. Since the consignment was duly insured with plaintiff No.1 and plaintiff No.1 after assessing the loss through an independent surveyor paid a sum of Rs.4,27,550/- being the value of damaged/short delivered consignment to plaintiff No.2 against the valid debit/discharge voucher duly signed by plaintiff No.2, whereby he had executed a letter of subrogation and special power of attorney in favour of plaintiff No.1 to RSA No.1106 of 2007 2 recover the claim and compensation from the defendant on account of damaged/short delivered consignment despatched through defendant No.1. It has been averred that the defendant was negligent in handling the consignment and was liable to pay the claim/compensation on account of damaged/short delivered consignment. Since the defendant failed to settle the claim of the plaintiffs and denied his liability to pay the same and as such the present suit for recovery was filed against the defendant. The suit was contested by the defendant taking preliminary objections to non-joinder of necessary parties, maintainability of the suit, non-issuance of notice under the Carriage Act and further that the insurance claim of the truck in question has been paid to the plaintiff No.2. Therefore, there is no liability of the defendant to pay. On merits, it was admitted that the plaintiff No.2 had despatched the goods through defendant. It was also admitted that the consignment was damaged. However, it was stated that the consignment was burnt due to electric sparking as the wire was crossing the road which was not properly maintained by the PSEB and thus the damage was caused on account of negligence of the PSEB. A DDR No.18 dated 16.10.1994 was lodged with the police by the driver of the truck in question and the spot inquiry conducted by the police revealed that no fault laid with the truck driver and the fault was of the PSEB. It was denied that damage was caused due to negligence and mishandling of transport employee. It was also stated that the defendant is not responsible vicariously and the vicarious liability, if any, lies with the insurance company of plaintiff No.2. On this basis of these averments, dismissal of the suit was prayed for. From the pleadings of the parties, following issues were framed by the trial Court: 1.Whether the plaintiff is entitled to recover the amount of Rs. 4,27,550/-? OPP RSA No.1106 of 2007 3 2.Whether the suit is not maintainable in the present form?OPD. 3.Whether the suit is bad for non-joinder of necessary parties? OPD. 4.Whether no notice under the Carriage Act has been given to the defendant? If so what effect? OPD. 5.Whether the plaintiffs are estopped by their own acts and conduct from filing the present suit? OPD. 6.Relief. In order to prove its case, plaintiffs examined Ramesh Chander Lugani, Senior Asstt.of plaintiff no.1, PW2 is Nirmal Singh Atwal Deputy Manager (Legal) Matro Tyres- plaintiff no.2 and thereafter Ld. Counsel for the plaintiffs closed evidence in affirmative. To rebut this evidence, DW1/A is the affidavit of Harnek Singh (DW1), DW2/A is the affidavit of Baljit Singh (DW2) and thereafter the defendants availed more than sufficient opportunities including last-opportunity but they failed to conclude the same. So as such, their remaining evidence stood closed by order dated 06.02.2006. The learned trial Court decided issue No.1 in favour of the plaintiffs and against the defendant by holding that the plaintiff no.1 is entitled to recover the suit amount of Rs. 4,27,550/- from the defendant. Issue No.2 was decided against the defendant and in favour of the plaintiffs by holding that the suit is very well maintainable. Issue No.3 was decided against the defendant and in favour of the plaintiffs by holding that the suit is not bad for non- joinder of necessary parties. Issue Nos.4 and 5 were also decided against the defendant and in favour of the plaintiffs. Ultimately the suit of the plaintiff was decreed. RSA No.1106 of 2007 4 Feeling aggrieved against the aforesaid judgment and decree of the trial Court defendant filed an appeal before the Lower Appellate Court. The only ground taken by the defendant was that the consignment was destroyed on account of act of God and despite due diligence and care taken by the appellant, high tension wires of PSEB caused fire and consignment was burnt and there was no carelessness, negligence and mishandling of the consignment by the Transport company and thus the findings of the trial Court are liable to be set aside. The District Judge, Ludhiana vide his judgment and decree dated 16.11.2006 rejected the contention raised by the defendant in his appeal and dismissed the appeal holding that the defendant has failed to prove that the consignment was damaged because of act of God and was not due to his negligence. Still not satisfied, the defendant has filed the instant appeal in this Court challenging the judgment and decrees of the Courts below. At the time of motion hearing, the counsel for the appellant contended that the appellant is neither owner nor the driver of the truck owned by M/s Akal Goods Carrier and was only a booking agent. This Court vide order dated 22.04.2008, after taking note of the contention of the learned counsel for the appellant on 16.04.2007 in this Court, admitted the appeal for determination of substantial question of law in terms thereof i.e. contention raised by the appellant at the time of issuance of notice of motion on 16.04.2008. After hearing both the counsel for the parties, the following substantial questions of law are framed for determination: 1. Whether the suit for recovery of damages on account of short/damaged consignment can be decreed against the appellant/defendant who is neither owner nor driver nor RSA No.1106 of 2007 5 insurer of the vehicle booked for carrying the consignment. 2. Whether the appellant is directly or vicariously liable to pay the damage or loss on account of short or damaged delivery of the consignment to respondent No.1. Learned counsel for the appellant has vehemently argued that the appellant is running a booking office for making arrangement of the transportation of the goods. Respondent No.2 approached the appellant for supply of the transport vehicle for carrying the consignment from Ludhiana to Ranchi. The appellant made arrangement of the truck and charged only a minor amount by way of commission. The truck bearing registration No.PIC -8265, which was being driven by Surjit Singh, had carried the consignment belonging to respondent No.2. The appellant raised a specific objection that the owner and driver of the truck are necessary parties in the suit. Therefore, the suit was bad for non-joinder of the necessary parties, as in the absence of the owner, the controversy in the suit cannot be adjudicated properly, as to whether the driver was negligent in causing the loss to the consignment and if the Hon'ble Court comes to the conclusion that the driver was negligent in keeping the consignment in good and safe condition, only then the owner can be held liable vicariously but the appellant who arranged the vehicle merely by no stretch of conclusion can be held liable to pay the damages. It was also argued that the truck in question was also insured and the insurer of the truck was bound to indemnify all the loss to third party, therefore, the insurer of the truck was also necessary party in the suit. Elaborating further, learned counsel for the appellant has argued that the Courts below have not appreciated the material evidence on record in the form of insurance policy and the Registration Certificate of the truck. Counsel for the appellant has further argued that all these objections were taken by the RSA No.1106 of 2007 6 appellant in the written statement but in the absence of the necessary parties, the suit has been decided against the appellant by the Courts below. Thus, the impugned judgment and decrees of the Courts below are illegal and are liable to be set aside. On the other hand, learned counsel appearing on behalf of respondent No.1 has supported the findings of the Courts below and has argued that specific issues were framed by the trial Court with regard to the non-joinder of necessary parties which were not pressed/proved by the appellant and therefore the appellant is estopped from raising the said argument in the Regular Second Appeal. Moreover, this present suit is, simplicitor suit for recovery against the goods carrier which is maintainable under the provisions of, The Carriers Act, 1865. Elaborating further, the learned counsel for respondent No.1 has stated that admittedly the appellant is common carrier who is engaged in the business of transporting for hired property from place to place by land and therefore he is liable for the loss caused to the owner of the goods, which were delivered to said carrier to be carried from Ludhiana to Ranchi and therefore the appellant is liable to pay the damages for the loss caused to the consignment, despatched through him. Learned counsel for respondent No.1 has also placed reliance upon Road Transport & Ors. Versus Krishan Kumar Singh 1982 ACJ 7 , wherein it has been held that in a suit for damages against carrier for loss of goods caused by neglect of common carrier, plaintiff need not prove negligence. I have considered the arguments raised by the learned counsel for the parties and have perused the record. I find no force in the contentions raised by the learned counsel for the appellant. On the basis of pleadings of the parties, the trial Court framed specific issues regarding the maintainability of the suit and non-joinder of necessary parties. The onus to prove these issues was upon the defendant-appellant. All these RSA No.1106 of 2007 7 issues were decided in favour of the plaintiff-respondent as the defendant- appellant was unable to show how the suit is bad for non-joinder of necessary parties and how the suit is not maintainable. The trial Court under Issue No.3 observed that the goods were booked by plaintiff No.2 with the defendant and he was the only necessary party. The appellant never raised any challenge to the finding of trial Court on the issue before the lower Appellate Court. Even no such plea has been taken in the Grounds of Appeal filed before Lower Appellate Court. Moreover, under Section 8 of the Carriers Act, 1865, every common carrier is liable to the owner for loss or damage to any property delivered to such carrier to be carried where such loss or damage has arisen from the act of the carrier or any of his agents or servants. Undisputedly, the truck in question was arranged by the appellant who has booked the goods of the plaintiff-respondent for carrying them from Ludhiana to Ranchi. The appellant has not placed on record any evidence to show that as per the terms and conditions of his booking agency he was not liable for the loss caused to the goods while in transit. Neither, there is any stipulation proved on record by the appellant that he had charged merely a commission to arrange a truck. Even this is not the pleaded case of the appellant that he was merely a booking agent who had charged amount of commission only for arranging a vehicle. In the case of Jularam Verma and others versus Harbanslal Chhabra and others 1989 ACJ 353 , it was held that ownership of a vehicle is not a sine qua non to fasten liability on a carrier. The Hon'ble High Court of Madhya Pradesh relying upon the definition of common carrier as defined under Section 2 of the Carriers Act, held as under: The aforesaid definition shows that unlike its meaning in common parlance, it denotes a person engaged in the business of transporting for hire, property from RSA No.1106 of 2007 8 place to place. In other words person having offices and agents all over the country, and being engaged in the business of transporting for hire goods from place to place comes under the definition of common carrier . Analysis of the definition does not show that the person concerned should also be an owner of the motor vehicle used for transporting the goods. It is well- known that in order to secure a permit for public carrier under the Motor Vehicles Act, ownership of a vehicle is not a condition precedent. What is relevant is possession of a vehicle and a person aspiring for a permit need not be its owner. I am, therefore, of the opinion that in order that a person may be treated as carrier within the meaning of the aforesaid Act, it is not essential that the person concerned should necessarily be owner of the vehicle also.” Thus, under the provisions of Common Carriers Act, liability can be fastened on a person who is engaged in the business of transporting for hired goods from place to place, even if he is not the owner of vehicle used for transporting the goods. Even otherwise, the appellant has filed this case describing itself as goods carrier. In United Indian Insurance Company Ltd.and another versus Economic Roadways Corporation 2002 ACJ 2024 the Hon'ble Madras High Court observed that burden lies on the common carrier to prove that loss occurred not due to its negligence but it was due to act of God. In the case of National Insurance Company Ltd.and another versus Om Parkash Poddar 1993 ACJ 616 Goods were insured and RSA No.1106 of 2007 9 the insurance company made payment to the owner. Suit was filed by insurance company against carrier. Insurance company could not call any witness or formally prove any document, but the carrier in its written statement admitted receipt of consignment, loss of goods due to accident and the carrier failed to prove absence of its negligence. The Hon'ble Calcutta High Court was pleased to hold that the carrier is liable for damages. In Economic Roadways Corporation versus Soundararaja Mills Ltd.and another 2003 ACJ 1158 the question involved was whether liability of common carrier under the Carriers Act is that of an insurer with regard to the goods and it is liable for loss and damage. The Hon'ble Madras High Court was pleased to observe that Carrier is not entitled to contend that it transported goods at owner's risk. The Courts below on appreciation of evidence have recorded a finding of fact that the loss was caused due to the negligence of the truck. Thus, from the above discussion, the only conclusion which can be made out is, that, the appellant cannot escape his liability in the present case as he has failed to prove that the damage to the consignment was caused due to act of God and further the suit was bad for non-joinder of necessary parties, as alleged. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.11.2008 neenu