1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF COMMERCIAL APPEAL NO.264 OF 2021 BETWEEN: M/S. SOUTH EASTERN CARRIERS PVT. LTD., NO.2202/3, 1A, NEW SANTHEPET BEHIND RMC, MYSURU (NOTE: THIS BRANCH AND ADDRESS NO MORE EXISTING) PRESENT ADDRESS: M/S SOUTH EASTERN CARRIERS PVT. LTD., SCO 44, OLD JUDICIAL COMPLEX CIVIL LINES, GURUGAON pin: 122001 ...APPELLANT (BY SRI.A.S.GUPTA, ADVOCATE) AND 1. THE NEW INDIA ASSURANCE COMPANY NO.2951, JLB ROAD CHAMUNDIPURAM MYSURU REPRESENTED BY ITS DIVSIONAL MANAGER 2. M/S SOUTH INDIA PAPER MILLS LTD., CHIKKAIHNCHATRA NANJANGUD REPRESENTED BY P A HOLDER PLANTIFF NO.1 …RESPONDENTS (BY SRI. RAVISHANKAR C.R., ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED) 2 THIS COMAP IS FILED UNDER SECTION 13(1), (1A) OF THE COMMERCIAL COURTS AND COMMERCIAL DIVISIONS ACT, 2015 PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE PASSED ON 27.09.2021 IN COMMERCIAL O.S.NO.37/2020, BY THE LEARNED COMMERCIAL COURT AND ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, ETC THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.02.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE V KAMESWAR RAO AND HON'BLE MR. JUSTICE T.M.NADAF CAV ORDER ( PER: THE HON’BLE MR JUSTICE T.M.NADAF ) The defendant before the trial court is in appeal calling in question the judgment and decree dated 27.09.2021, in COM.O.S.No.37/2020, on the file of the Commercial Court And II Additional District And Sessions Judge, Mysuru, whereby the suit filed by the respondents / plaintiffs has been decreed with cost, entitling the plaintiff no.1 to recover Rs.8,74,254/- with current and future interest at 12% per annum on Rs.7,92,504/- from the defendant. 3 2. For easy reference, the parties are referred to as per their ranking before the trial court. 3. The facts leading to filing of this appeal are as under: The plaintiff No.1 is an insurance company and the plaintiff No.2 is the Consignor, who entrusted the goods to the defendant – common carrier, a consignment consisting of 38 reels of Nandi paper for a total value of Rs.11,82,876/-, for transportation from the factory premises of plaintiff No.2 to Noida, under Invoice No.02573, dated 31.07.2014 to be delivered at M/s.Hora Art Centre Private Limited, No.A-42, Sector-83, Phase-II (Opp. NEPZ), GB Nagar, Noida. Accordingly, under consignment Note bearing No.09766325, dated 31.07.2014, the consignment was transported in vehicle bearing No.HR-55-K-5341. 4. On 07.08.2014, on delivery at the destination, it was found that the consignment was in a damaged condition due to seepage of water. That, 35 out of 38 reels, were found in damaged condition i.e., in wet condition. The plaintiff No.2 immediately after receipt of the intimation, addressed a letter to the defendant on 30.08.2014 claiming a sum of Rs.10,25,932/- which comes to be served on the defendant on 06.09.2014. A copy of the letter dated 4 13.08.2014, was also sent to the plaintiff No.1. The plaintiff No.2 made a claim against plaintiff No.1, where upon a Surveyor by name Sri.Ramagopal Verma was appointed and he had submitted his report on 18.08.2014, assessing the total loss suffered at Rs.7,90,958/-. The Surveyor fee was computed at Rs.6,643/- which has been paid by the plaintiff No.1. 5. On 11.11.2014, the defendant had issued an open delivery certificate / damage certificate. Thereafter, the plaintiff No.2 made a claim against the plaintiff No.1 as the consignment was covered under policy bearing No.671006211402000000010 being valid during the said period. In pursuance to the claim, the plaintiff No.1, settled it to a sum of Rs.7,92,504/-. After receipt of the amount, the plaintiff No.2 had executed ‘power of attorney’ and ‘letter of subrogation’ in favour of plaintiff no 1. 6. Subsequent to the settlement, both the plaintiffs have issued notice to the defendant on 25.08.2015, for making good the amount settled. Despite the notice, the defendant neither complied the demand made, by settling the claim nor replied to the notice, which forced the plaintiffs to file a suit Com.O.S.37/2020 (new number) claiming a sum of Rs.8,74,254/- including interest at 12% 5 on the principal amount and also claiming current and future interest at 12% on the principal amount of Rs.7,92,504/-. 7. Originally, the suit was filed in O.S. No.1060/2015 on the file of IIIrd Additional Senior Civil Judge / CJM Court, Mysuru and after establishment of Commercial Courts under the Commercial Courts Act 2015 (for short ‘Act 2015’) and as the dispute being the commercial dispute, as defined under the provision of the Act 2015, the entire records was withdrawn and was made over to the IInd Additional District And Session Judge, Mysuru and renumbered as COM.O.S. No.37/2020. 8. In the interregnum, the defendant appeared and filed written statement, denying the plaint averments contending that there are suppression of the material facts by the plaintiffs and M/s.Sonali Enterprises was not made as a party to the suit. Further, averred that the material was delivered on 07.08.2014, which was a normal transit period. Further, that the survey was conducted in its absence and without disclosing the reasons for delay. A specific defense has been taken at para–8 of the written statement, which is reproduced as under: 6 “8. That it is respectfully submitted that the Hon'ble Court lacks territorial jurisdiction to try and to decide the present suit in view of the Goods Receipt which is a mercantile documents in which it is clearly/specifically stated on the top that "all dispute are subject to Gurgaon Jurisdiction Only" as Gurgaon is the Head office and Administrative office of the defendant and had formed a contract impliedly admitted and agreed while accepting the GR and is binding on the parties. The same view has also been supported by the Hon'ble Supreme Court in the case of M/s New Moga Transport Company v/s United India Insurance Company Limited and others AIR 2004 SC 2154 where in it is held "suit based on consignment note- Note providing that "court, at Head office city shall only be the jurisdiction" At the top of the note jurisdiction was also specified to be with court at place "U" - Held, it is only the court at place "U" which had jurisdiction to try the suit. In view of the aforesaid submission the suit is not maintainable.” 9. Further, that the Notice which was issued claiming Rs.10,25,932/- was frustrated, as the amounts settled by the plaintiff No.1 to plaintiff No.2 was only Rs.7,92,504/-. The defendant had issued a damage certificate without prejudice to its rights. It is the further case of the defendants that since there was lack of adequate packaging material to withstand any occurrence, such as heavy rains, the goods got damaged and there was no 7 recklessness, carelessness or negligence in handling the goods on the part of the defendant and prayed the Court to dismiss the suit. 10. Upon completion of the pleadings, the trial court framed four issues which reads as follows: 1. “Whether the plaintiffs prove that due to negligent act of the Defendant, the Plaintiffs have suffered loss to the tune of Rs.7,90,958/-? 2. Whether the Plaintiffs are entitled for the interest as claimed? 3. Whether the suit is not coming with the territorial jurisdiction of this Court? 4. What order or Decree?” Issue No. 3 was considered as preliminary issue and held against the defendant vide order dated 01.03.2021, by the Trial Court. 11. The plaintiff no.1 to prove its case has examined one Sri.N.S.Vasudev, Assistant Manager of the plaintiff no.1 company as PW-1 and produced 12 documents and marked as Exhibits–P1 to P12 and closed its side. Defendant has examined the President of the company Sri.Hemanth Anand as DW-1 and produced two documents and marked as Exhibits-R1 and R2 and closed its side. 8 The matter was set-down for arguments, the trial court after hearing the parties and considering the evidence and documents produced on record, proceeded to answer the issues in favour of the plaintiffs and decreed the suit as under: “The Plaintiff No.1 is entitled to recover an amount of Rs.8,74,254/- (Rs.Eight Lakhs Seventy Four Thousand Two hundred Fifty four only) with current and future interest at the rate of 12% per annum on Rs.7,92,504/- from the Defendant.” 12. Assailing the judgment and decree, the defendant – common carrier is in appeal on the ground that, there, are suppression of material facts, further that there are no findings by the trial court, as to, in what manner the driver and cleaner were negligent to safeguard the subject consignment from damage. Further that the plaintiff No.2 is at fault in not packaging the goods by taking proper precaution. Further, that the freight charges mentioned in Exhibit-P2 as Rs.79,300/- had not been paid and there were no documents produced except Exhibit-P2 to show that the freight charges had been paid to the defendant. With these grounds, the defendant / appellant approached this Court to set-aside the judgment and decree passed against it. 9 13. We have heard Sri.A.S.Gupta, learned Advocate for appellant and Sri.Ravi Shankar C.R., learned Advocate for respondent no.1 – Insurance company. Respondent No.2 though served remained unrepresented. 14. The main bone of contention of Sri.A.S.Gupta is, it is the plaintiff No.2 who should have taken proper caution while packaging the goods which were entrusted to it in the premises of the factory. The consignment has been transported to the destination as it is and there was no carelessness, recklessness or negligence on the part of the transporter while transporting the goods, but for the reason of heavy rains the consignment of goods got damaged for insufficient packaging material. It is his further argument that as per Exhibit-P3, the consignment note dated 31.07.2014, the goods were transported “at owner’s risk” and as such, the defendant is not liable for any damage occurred. It is his further contention that the salvage value which had been procured by selling the damaged goods was only Rs.2,34,974/- at the rate of Rs.18.10 per kg., which was a negligible price, as the damaged goods would have procured more value than the one to which they were sold, his further contention is that the appellant would have purchased the same at higher rate. (However, he has not produced any documents in that 10 respect such as letters or communications requesting to buy the goods at salvage value, more than the rates to which they were sold). At any rate, there is no negligence on the part of the transporter, but the same occurred due to heavy rains in which defendant has no role to play but for the faulty packaging by the consignor. Even he has gone to the extent of terming the same as vis major. With these, he submits that the suit be dismissed by setting-aside the judgment and decree. 15. Refuting the same, Sri.Ravi Shankar C.R., learned counsel appearing for the respondent no.1 – plaintiff No.1 – insurance company submits that the plaintiff No.2 packaged the consignment in a good condition with proper packaging material, and entrusted the goods in good condition to the defendant from the factory premises to transport the same to the destination arranged. However, upon delivery at Noida, they were found in a damaged condition due to seepage of water, 33 reels out of 38 reels, became wet and useless thereby causing loss to the plaintiff No.2, as the company to which the goods were directed refused to receive the same in damaged condition. Upon survey, the damage having been quantified at Rs.7,92,504/-, the same had been settled 11 and thereafter the claim has been made against the defendant by issuing Notice as per Exhibit-P11. 16. It is his further contention that, the defendant neither has complied with the demand made in the Notice nor replied to the same. The written statement filed by the defendant is silent regarding non-payment of freight charges. He referred to the cross- examination of DW-1 at page No.2 dated 02.09.2021 wherein DW-1 had admitted that he had not stated anything regarding the freight charges in the written statement and for the first time had taken this contention in the examination–in-chief. Further, he has taken us through the cross-examination, wherein, the DW-1 had admitted that on the over-leaf of Exhibit-P3 there was an acknowledgment by the driver of the lorry, that out of 38 reels 33 were water damaged and only 5 reels were in dry condition. Further, DW-1 had pleaded his ignorance regarding the reply to the notice. 17. He asserts that the goods were entrusted in a good condition with proper packaging material. However, when the same reached the destination, 33 reels out of 38 reels were found in damaged condition and the same was refused by the buyer, causing monetary loss to the plaintiff no.2, which had been quantified by the 12 Surveyor to an extent of Rs.7,92,504/-. The said amount had been paid on claim petition having been made by plaintiff no.2, under the policy, issued by plaintiff no.1. As the damage had been caused due to the careless and reckless handling of the goods entrusted, by the defendant, the plaintiff no.1 is entitled to claim the amount settled by it to plaintiff No.2. Accordingly, plaintiff no.1 has instituted the suit in appeal, claiming the amount settled by it to the plaintiff no.2, at the rate of 12% per annum from the date of settlement of the claim till realization. Accordingly, he supported the impugned judgment and decree and seeks to dismiss the appeal as devoid of merits. 18. We have heard the learned counsels for the parties, perused the pleadings, the evidence on record and the documents exhibited by either side. The points that would arise for our consideration are as follows: i) Whether the Trial Court committed any serious error in decreeing the suit as claimed by the plaintiff no.1 against the defendant? 13 ii) Whether the judgment and decree passed by the Trial Court suffers from any perversity which requires interference at the hands of this court? iii) What order? 19. Our answers to issue Nos.1 and 2 are in negative for the following reasons: Before we could subscribe our view on the pleadings, evidence and documents placed on record, we would like to place the reasons of the trial court for decreeing the suit, as claimed by the plaintiff no.1. The Trial Court’s reason for decreeing the suit could be found in para Nos.13, 15, 16 and 17, same are extracted as under: “13. For a moment we shall turn our attention to the evidence adduced by the Plaintiff. Now coming to the evidence of PW.1. Asst. Manager of Plaintiff company by name N.S.Vasudev gave evidence as PW.1. PW.1 reiterated the contents of the plaint in chief examination. PW.1 in his chief examination stated that a consignment consisting of 38 reels Nandi papers was entrusted for transportation by the plaintiff No.2 to be transported from the factory primes of the plaintiff No.2 M/s South India Paper Mills, Ltd., Chikkaiahnachatra, Nanjangud to Noida and the said consignment was sent under Invoice No.02573 dated 31.7.2014 for total value of Rs.11,82,876/- to be delivered to M/s Hora Art Centre 14 Pvt.Ltd., No.A-42, Sector-83, Phase-II (Opp.NEPZ), GB Nagar, Noida. PW.1 further in his evidence stated that the said consignment was transported under consignment Note No.09766325 dated 31.7.2014 and transported in vehicle bearing No.HR-55-K-5341. Further it is such consignment were the case of the plaintiffs that the said consignment was not properly transported and as delivered in a wet condition. Out of the total consignment of 38 reels, only 5 reels were delivered in good condition on 7.8.2014. The total weight of the consignment was 14,963 kas. PW.1 further in his evidence stated that the said note was made by M/s Hora Art Centre Pvt. Ltd., on consignment note No. 09766325. The said fact was intimated to the plaintiff No.2. Immediately on intimation as stated above the plaintiff No.2 had addressed a letters to the defendant on 30.8.2014 claiming a sum of Rs.10,25,932/- and said letter was due served on the defendant on 6.9.2014, a copy of the letter dated 13.8.2014 was also sent to the plaintiff No.1 by the plaintiff No.2 and the plaintiff No.2 made a claim against the plaintiff No.1 and the plaintiff No.1 appointed a surveyor Ramagopal Verma who submitted his report on 18.8.2014 assessing the total loss suffered as Rs.7,90,958/- and the plaintiff No.1 also paid the surveyor fee of Rs.6643/-. PW.1 further in his evidence stated that the consignment was insured by the plaintiff No.2 with the plaintiff No.1 under policy bearing No.671006211402000000010 and the said policy was valid. The plaintiff No.2 preferred a claim with the plaintiff No.1 for loss of the consignment as stated above and in pursuance of the claim made by the plaintiff No.2 and after receipt of the survey report the plaintiff No.1 made a 15 payment of Rs.7,92,504/- by means of cheque to the plaintiff No.2. PW.1 further in his evidence stated that the plaintiff No.2 had executed power of attorney and letter of subrogation in favour of the plaintiff No.1 and that damage to the consignment was due to careless and negligent act on the part of the employee of the defendant i.e., the driver and cleaner of the vehicle not taking proper care in the matter of transportation. Thereby, the plaintiff No.1 was forced to settle the claim due to the loss of the consignment of the plaintiff No.2. The employee of the defendant acting during the course of employment under instructions of the defendant. As such the defendant is bound to make goods the loss suffered by the plaintiff No.2. Hence, the plaintiffs have constrained to file the present suit against the defendant for recovery of an amount of Rs.8,74,254/ with interest and prayed to Decree the suit with costs. PW.1 in his cross examination stated that though cross examined in full, nothing is entitled in the cross examination, of PW.1 to disbelieve in his evidence. 15. The documents produced by the Plaintiffs clearly reveals that the consignments were not properly transported by the Defendant, as such, the consignment were delivered in wed condition. Out of the total consignment of 38 reels only 5 reels were delivered in good conditions. The surveyer assessed the loss suffered by the Plaintiffs of Rs.7,90,958/-and survey fee of Rs.6,643/- was paid by the insurance company. In total the Insurance company was paid an amount of Rs.7,92,504/- to the Plaintiff No.2. The Plaintiff No.2 16 executed Power of Attorney and letter of subrogation in favour of the Plaintiff No.1 company and on account of the loss to the consignment. The Plaintiffs have suffered loss for an amount of Rs.7,92,504/- which the Defendant is liable to pay the same to the Plaintiffs. 16. For a moment we shall turn out our attention to the evidence adduced by the Defendant. Sri. Hemant Anand the President of Defendant company himself gave evidence as DW.1 and reiterated the contents of the written statement In his chief examination. DW.1 in his evidence stated that after loading the paper reels it was properly covered with the sufficient number of good conditioned tarpaulins and was lashed with ropes in the factory itself before it left for the final destination. Thus, the paper reels carried in good conditions and the Defendant has taken all the precautions as an ordinary prudent person may take for his own paper reels of the quality and value. DW.1 in his chief examination further stated that who received the material had made a note on the acknowledgment out of 38 reels 5 reels were dry and in order and had neither stated about the conditions remaining 33 paper reels. Further DW.1 In his evidence stated that the Defendant exercised the due deligence and due care in carriage of paper reels and was not at fault in any point of time during the transportation of paper reels. DW.1 in his cross examination admitted that first time in his chief examination he has stated that the Defendant not received transportation charge. And DW.1 in his cross examination admitted that Ex.P3 reveals consignments value number of bundles and weight. And also admitted Ex.P2 is part of 17 Ex.P3 and also admitted the signature of the driver on Ex.P3 and further he has admitted that Ex.P3 reveals that out of 38 reels, only 5 reels are dry and good condition. It is pertinent to note that the Defendant not adduced the evidence of the driver. The non appearance of the driver to the witness box discredit the truth of the case of the Defendant. It is pertinent to note that the decision reported in 2000 (4) SCC 91 in case of Patel Roadways Ltd. Vs, Birla Yamaha Ltd. Wherein the Hon'ble Supreme Court held that the liability of common carrier under the Carriers Act is that of an insurer. The another decision reported in AIR 2005 Jhar. 44 in case of New India Assurance Co. Ltd. Vs. Pawan Transport Corpn. Wherein the Hon'ble High Court of Jharkhand held that goods damaged by rain consignee refused to accept the consignor recovered insurance money the insurers suit against carrier was held properly filed. It is pertinent to note that the Defendant adduced the evidence of President of the company he was not in the spot where consignments become wet condition. In addition to that the driver has not been examined, therefore in the absence of evidence it cannot be held that the consignment become wet condition due to rain. It is not an act of god beyond man's control. Therefore, the contention of the Defendant cannot be accepted. 17. It is pertinent to note that it is well settled law that the carrier would be responsible for all the losses caused to the consignee if the goods are not delivered intact as they were handed over to the carrier. For all the losses caused to the consignee, the carrier alone is responsible. The 18 ruling relied by the learned counsel for the Defendant not helpful to the case of the Defendant. In view of the facts and circumstances of the case, material available on record, I hold that the Plaintiffs proved that due to negligent act of the Defendant the Plaintiffs have suffered loss of Rs.7,92,504/-and the Plaintiff No.1 is entitled to recover an amount of Rs.7,92,504/- from the Defendant. Hence, is answered issue No.1 in the Affirmative. further I hold that Plaintiff No.1 is entitled current and future interest at the rate of 12% p.a. from the Defendant. Hence, issue No.2 in the Affirmative. 20. The Trial Court comes to the conclusion that there was negligence on the part of the defendant in handling while delivering the goods in good condition, which were entrusted at the time of entrustment and the defendant has failed to prove that there was no negligence on its part, which was attributable to the damages caused to the goods. The defendant adduced the evidence of the President of the company, who was not present on the spot where the consignment had been delivered in wet condition. In addition to that, the driver of the vehicle who was the employee of the defendant had not been examined in order to prove its contention, that despite proper precaution taken by them, it was due to the heavy rain the consignment became wet and it is an act of god beyond the control of the defendant. The Trial Court rightly held 19 that the defendant had failed to prove its case and as such, the contentions of the defendants in that regard cannot be countenanced. The Trial Court on the basis of pleadings, evidence and documents placed on record, held that the plaintiffs have proved that the damage was caused due to the negligent act of the defendant and whereby the plaintiffs have suffered loss of Rs.7,92,504/- and the plaintiff no.1, being the insurer of plaintiff no.2 is entitled to the said sum, having settled on the claim petition submitted by plaintiff No.2, along with current and future interest at the rate of 12% per annum and accordingly, decreed the suit. 21. Since the appeal is a statutory first appeal under Section-13(1)(1A) of Commercial Courts And Commercial Divisions Act, 2015, wherein any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or as, the case may be, prefer an appeal. That apart, as this court being the last fact finding Court, we have given our anxious thoughts and consideration to the pleadings, evidence and documents placed on record and re-appreciated the same as contemplated under law. We are in full agreement with the reasons assigned by the trial court in decreeing the suit, for more than one reasons which could be borne out from the records. The 20 undisputed facts are that, the plaintiff No.1 is the consignor entrusted the goods to the defendant - common carrier to deliver it to the destination at Noida, on a mutually agreed freight rate. It is germane to mention here that the defendant in its written statement under the heading ‘reply on merits’ so far as para Nos.1 and 2 of the plaint are concerned had stated as under: “1. That the contents of para No. of the plaint are matter of record, hence need no reply. 2. That the contents of para No.2 of the plaint are matter of record, hence need no reply.” 22. The defendant in his written statement nowhere stated that the freight charges were not paid or payable at the end of destination. That apart, it is clear from the reply on merits while answering para No.2 of the plaint, the defendant has not disputed that the consignment consisting of 38 reels were not entrusted in good condition. Surprisingly, the defendant had changed its version in the examination-in-chief, through DW-1, for the first time, stating that at the time of entrustment, the freight charges were not paid. However, there is no foundation of pleadings to the said statement in the written statement. The defendant had contended that, as per Exhibit-P3, there is a clear stipulation as “at owners risk”. On this, 21 the defendant contended that, though the goods were entrusted to it as common carrier to transport, but the same was at owners risk and as such not liable to pay any damages, if caused during transit. 23. Further, it is the contention of the defendant that the surveyor had not conducted the survey in its presence and the surveyor report was prepared only to facilitate the plaintiffs to make a claim against the defendant and further that the salvage value shown by the surveyor was negligible than the one available in the market as averred at para-14 of the appeal memorandum. We are surprised to note that there was no such stand taken by the defendant in the written statement, regarding the salvage value, as stated by the surveyor. That apart, the defendant had failed to call the surveyor to the witness box, to ascertain and put these contentions to him as now he is agitating before us. No such steps had been taken by the defendant before the trial court. Even the defendant had not taken any pain to examine the driver of the vehicle to prove its contention of Vis Major i.e., heavy rains, which had caused the loss without their being any negligence or recklessness on its part. In these circumstances, we feel that the Trial Court is right in raising an adverse presumption against the 22 defendant. More particularly, in para–16, wherein it has held as follows: “It is pertinent to note that the Defendant not adduced the evidence of the driver. The non appearance of the driver to the witness box discredit the truth of the case of the Defendant.” 24. It is fruitful to refer to the judgment of the Hon’ble Apex Court, in the case of Nath Brothers Exim International Limited vs. Best Roadways Limited1, wherein the Hon’ble Apex Court answered to the defense of “at owners risk”, and observed in para- 39 and 40 as follows: “39. In view of the above, there did arise a controversy between the parties whether there was any special agreement between them which would have the effect of restricting the liability of the respondent in carrying the goods in question to Bombay for delivery to Messrs Jeena & Co. This question has not been answered in clear terms by the National Commission and a positive finding, whether or not there existed a special contract between the parties within the meaning of Section 6 of the Act, has not been recorded. The Commission, after considering various provisions of the Act came to the conclusion that EVEN IF the goods were carried at "OWNER'S RISK", the carrier would not be fully absolved of his liability to pay compensation if the loss 1 (2000) 4 SCC 553 23 was occasioned on account of his negligence or the negligence of his servants and agents. The Commission, to this extent, is right and, therefore, a positive finding on the existence of a special contract is not insisted upon but what is now questioned is the finding of the Commission on the question of negligence. 40. The Commission held that since the goods were diverted to Bhiwandi by the consignee, Messrs jeena & Co, to whom the goods were to be delivered, and they were destroyed by the fire which initially broke out in the adjacent godown and subsequently spread to their own godown, the respondent would not be liable as he had taken all possible care which was expected of him as a carrier. This, we feel, is not the correct approach.” [Emphasis Supplied By Me] 25. The facts of the case in the said judgment stated supra of the Hon’ble Apex Court, are hard than the case on hand. In the said case, the goods were entrusted to the respondent therein for being carried from Noida (UP) to Bombay to be delivered to M/s.Jeena & Co. However, the consignment was diverted for being unloaded at Bhiwandi and were destroyed by fire, before they were delivered to M/s.Jeena & Co. A plea has been taken by the respondent-carrier that the goods were unloaded at Bhiwandi on the instruction of M/s. Jeena & Co., vide their letter dated 14.03.1994 and the goods were destroyed in a fire accident beyond the control 24 of the respondent. As such, the defense that the goods carried at ‘owner’s risk’ pressed in. However, the same was negated by the National Commission and was affirmed by the Hon’ble Apex Court at paragraph No.39 of the judgment supra. 26. The facts of the case on hand are not identical. The goods were entrusted from the factory belonging to the plaintiff no.2 with proper packaging and in good condition which was not seriously disputed in the written statement. However, when the goods reached the destined point they were found damaged. In these circumstances, it was for the defendant to prove that, the goods were not properly packaged and were in the same condition delivered at which they were entrusted and there was no negligence on their part and the damage if any was not attributable to them, but for heavy rains which was an act of god. However, the defendant neither by the pleadings nor by evidence or by the documents proved, the contentions urged before us, in the trial court to dislodge the burden casted upon it. It is a trite law, that the burden is always on the common carrier to explain and prove once the goods are entrusted in good condition to them, to the loss that 25 has been caused was without any negligence attributable on their part. 27. It is germane to point out that the Hon’ble Apex Court in the judgment of Nath Brothers referred to supra, at paragraph No.25, held as follows: “25. We have already reproduced the provisions of Sections 6, 8 and 9 above. Section 6 enables the common carrier to limit his liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods, entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non-delivery of goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section-9.” 28. It is clear from the judgment of the Hon’ble Apex Court, that, the burden is entirely on the defendant to dislodge the negligence alleged against it and to come out from the liability to pay damages. It is pertinent to note here that, though PW-1 has been cross-examined by the defendant, nothing worth has been extracted to dislodge their claim. 26 29. The learned counsel for the defendant argued on several contentions supra, all the arguments went in air, as far as negligence, at owners risk and salvage value, for lack of foundation in the pleadings and evidence and as such the said contentions would not come to the rescue of the appellant / defendant, that there was no negligence on its part in causing damage to the consignment entrusted. The submissions would have to be rejected as it is, for lack of proper evidence and pleadings. The defendant examined its president as DW-1 and produced only two documents as Exhibit-D1, Board resolution and Exhibit-D2 Special Power of attorney. In view of non-examination of driver and the documents to show that the goods were properly handled without there being any negligence on their part, the trial court has rightly come to the conclusion, holding that the defendant was negligent and reckless in transporting the goods, which were entrusted in good condition to the destination, whereby caused damages resulting in monetary loss to the plaintiff no.2, which had been settled by plaintiff No.1 being the insurer of goods, and as such entitled to claim the same against the defendant. 27 30. The attempt of the learned counsel for the appellant, contending as per para – 14 of the appeal memorandum that the salvage value of the damaged goods is negligible compared to the market salvage value and that, the defendant/transporter would have purchased at higher rate, holds no water in as much as, the defendant has not produced any material or any communication requesting to purchase the damaged goods at a higher rate than the one for which they were sold. In these circumstances, the contentions of the learned counsel appearing for the appellant are liable to be rejected. 31. For the reasons stated supra, we are in full agreement with the reasons and conclusion arrived at by the trial court morefully at para–17 as extracted above by us, accordingly we subscribe our view to the same. For the reasons stated supra, we answer both the points 1 and 2 in negative and against the appellant. 32. In these circumstances, the appeal fails and liable to be dismissed. Hence, we pass the following: 28 ORDER i. The appeal filed by the defendant calling in question the judgment and decree dated 27.09.2021, in COM.O.S. No.37/2020, passed by the Presiding Officer Commercial Court & IInd Additional District and Sessions Judge, Mysuru, is hereby dismissed as devoid of merits. ii. The judgment and decree 27.09.2021, in COM.O.S. No.37/2020, passed by Trial Court supra is confirmed. Office is directed to draw decree accordingly. iii. In the facts and circumstances of the case, there is no order as to cost. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE JJ