SHRI NATH CARGO PVT. LTD. Vs. PARAG SAREES

JUDGEMENT

(1.) THIS second appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 5.2.2014 by which the first appeal was dismissed as barred by limitation. Appellant before the first appellate court and also before this Court was the defendant in the suit. The appellant is a transporter and against whom the suit for recovery of Rs.69,370/ - was decreed ex parte by the judgment dated 30.8.2013.

(2.) THE first appellate court holds that the ex parte judgment was pronounced on 30.8.2013 but the appellant applied for the certified copy only in October 2013 and filed the appeal in January 2014 clearly showing that the first appeal was time barred. The relevant observations made by the first appellate court are contained in paras 4 to 6 of the impugned judgment and which read as under: - "

(3.) IT is not disputed before me on behalf of the appellant that the consignment was in fact lost by the appellant but what is argued is that appellant had limited the liability of the appellant in view of the terms of the contract of transportation which limited liability to a maximum sum of Rs.2000/ -. I cannot agree with the arguments urged on behalf of the appellant on merits though I need not look into the arguments on merits, inasmuch as the law is well settled that the liability of transporter under the Carriers Act, 1865 is equivalent to the liability of an insurer, and with only two exceptions of there being no liability if there is an act of God or an act of enemy. This legal position is now well settled in view of the judgment of the Supreme Court in the case of Patel Raodways Ltd. Vs. Birla Yamaha Ltd. (2000) 4 SCC 91. Another judgment directly on this point is the judgment of the Supreme Court in the case of Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. (2000) 4 SCC 553. The transporter cannot in law contract out of the statutory liability. Therefore, though I need not look into the merits of the case because this appeal is only against the dismissal of the first appeal as barred by limitation, however, not only the appeal has been rightly dismissed as barred by time but also even if I look into the merits of the case for the sake of equity, justice and good conscience, even then appellant -defendant has no case on merits.