VINAYAKA ROADWAYS Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This appeal is filed by the defendant in O.S. No. 75/1995 on the file of the Civil Judge (Sr. Dn.) and Prl. JMFC., Ranebennur, being aggrieved by the judgment and decree dated 04.11.2003, wherein the suit filed by the respondent herein has been decreed with direction to the appellant herein to pay a sum of Rs. 1,68,867/- with interest at the rate of 18% per annum from 10.09.1993 till the date of payment. The material facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:-

(2.) The suit was resisted by the defendant by filing written statement contending that the defendant is not a carrier within the meaning of Carriers Act, 1865 (hereinafter called 'the Carriers Act') and the defendant only acted as an agent by receiving commission of Rs. 280/- in respect of the transaction between the owner of the Lorry and the consignor-Nath Seeds regarding the consignment of goods (187 bags of NSFH-592 sunflower seeds) from Ranebennur to Aurangabad and wherefore, it is not liable to pay the amount under the Act as claimed in the suit. It is also averred in the written statement that the owner and driver of the Lorry, in which the said sunflower seeds were transported and portion of the consignment was damaged, are liable to pay for the damages suffered by Nath Seeds. The defendant did not know about the loss suffered by Nath Seeds due to the negligence of the owner and driver of the Lorry. The averments made in the plaint were denied and it was averred that since the defendant is not a 'carrier' within the meaning of the Act and it has acted only as a Commission agent, it is not liable to pay the damages, which is sought to be recovered in the suit. It was also averred that receipt (Ex. D2(a)) is signed by the driver of the Lorry, which shows that transportation of goods was at the risk of the owner of the lorry and subject to terms and conditions.

(3.) Having regard to the above said pleading, the following issues were framed by the trial Court: