K VENKATA RAO Vs. COMMERCIAL GOODS FIRM VIZIANAGARAM

JUDGEMENT

(1.) This second appeal is filed by the defendant. The suit is filed by Messrs. Commercial Goods Transport Firm to recover an amount of Rs. 3,581/-from the present appellant K.Venkaferao and his driver P. Appara who died pending the trial of the suit and whose legal representatives had been added as party defendants. The facts giving rise to the suit are;

(2.) The plaintiff is a common carrier carrying goods from one place to another on hire and accepting the business from all. The Premier Tyres Limited, Hyderabad, entrusted the plaintiff with cerain number of articles to be delivered to two parties at Srikakulam. The plaintiff-firm accepted those goods and agreed to carry and deliver them at Srikakulam for hire. Accordingly, it carried those goods upto Vijayanagaram where it has got branch oifice. At Viziansgaram it had entrusted 70 articles to the 1st defendant which included the thirteen ariicles carried from Hyderabad to be delivered to the plaintiff's branch at Sukakuiam. This entrustment was done on 13 8-74. That the 70 articles were entrusted to the 1st defendant for being carried to Srikakulam is borne out by ExA-2, leg sheet. Under an agreement, Ex A-3. the 1st defendant has undertaken, in consideration of the payment of hire charges by the plaintiff, to reimburse the plaintiff for loss of any goods entrusted to him for being carried to Srikakulam from Vizienagaram. Under that agreement, the 1st defendent carried these goods to Srikakulam from Vizianagaram. But two articles out of 70 articles entrusted at Vizianagaram were found missing. These two articles were automobile tyres which the Premier Tyres Limited, Hyderabad had entrusted to the plaintiff for safe delivery to the third party at Srikakulam who had purchased them. On the failure of the plaintiff to deliver these two articles to the third party, the person who purchased those tyres, called upon the plaintiff to pay the value of the lost goods. Accordingly, under Ex A 16 and A-17 the plaintiff paid the amount to third party-consignee and called upon the 1st defendant to re-imburse the loss sustained by it. Ex.A-9 is the office copy of the registered notice sent by the plaintiff to the 1st defendant. The 1st defendant denied his liability and disputed the quantum of damages and contested the matter. The plaintiff filed O.S.370/75 on the file of the Principal District Munsif's Court, Vizianagaram. The learned District Munsif after framing necessary issues and recording evidence, decreed the suit which was confirmed by the appellate Court in A.S.31/77. The 1st defendant having been aggrieved by the decree of the appellate Court, has filed this second appeal.

(3.) In this appeal, it is not necessary to consider the points that would otherwise arise for consideration in a first appeal relating to the entrustment of the articles to the 1st defendant by the plaintiff at Vizianagaram and the short delivery thereof and the quantum of damages etc., because the concurrent findings of both the Courts on these issues were based upon an appreciation of documentary evidence which cannot be interfered with in this second appeal. The only point that has been argued by Mr. Sarma with great enthusiasm is based upon the statutory provisions of the CARRIERS ACT, 1865 and the decided cases. That point is that the suit filed by the plaintiff is not maintainable at all in law. His argument is that the plaintiff is not the owner of the goods and that therefore the plaintiff cannot file the suit to recover the damages from the 1st defendant. His argument is based upon Sec. 8 of the Common CARRIERS ACT, 1865 (Act III of 1865) which reads thus: Sec. 8. "Notwithstanding anything herein before contained every common carrier shall be liable to the owner for loss of, or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Sac. 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants." The learned counsel for the appellant submits that this section debars the plaintiff from suing his client, because that Section permits a suit of this nature to be brought against his client only by the owner of the goods lost and not by a common carrier. In support of this argument Mr, Sarma relied upon a judgment of this Court in Narasa Reddy vs. Venkata Subbayya (1).