ORDER
Raju, J.
1. The defendant in O.S. No. 317 of 1976 on the file of the Principal Subordinate Judge, Madurai is the appellant in the above appeal.
2. The respondents/plaintiffs filed the suit for recovery of Rs. 5,658 being the value of damaged yarn, including charges, subsequent interest and costs. The 1st plaintiff was the owner and consignor of the goods and the 2nd plaintiff was the Insurance Company with whom the goods were insured. The appellant/defendant, a transport carrier, was entrusted with, by the 1st plaintiff at Madurai on 4.6.1973, 62 cases containing art silk yarn intended for its Bombay office under Lorry Receipt No. SB C 3749 dated 4.6.1973, which were insured also with the 2nd plaintiff. At the destination, about 25 cases were found to be badly damaged by water, out of which, 100 cones containing 200 kgs. of silk yarn were so badly damaged that it had become completely useless for the purpose intended and as a matter of fact, the defendant also issued a damage – certificate dated 15.6.1973. Claiming that the said damage was only due to the negligence and misconduct on the part of the defendant and its servants and that the 2nd plaintiff made good the loss to the 1st plaintiff, as insurer and therefore got subrogated to the rights of the 1st plaintiff, the plaintiffs filed the above suit for the reliefs stated supra, after exchange of notices between the parties.
3. The defendant contended that even at the time of entrustment of the goods, the defendant specifically intimated the (1st plaintiff) that it was not liable for any damages to the goods due to long distance and that they were being accepted for transport only at the risk of the owner (1st plaintiff) and that the damage certificate was duly issued by the defendant to enable it to make and recover the claim from the insurance company without prejudice to the defendant’s rights and that therefore, there was no liability on the part of the defendant to pay any compensation. The defendant also contended that there was no privity of contract with the 2nd plaintiff.
4. On the above claims and counter claims, the suit came to be tried and the plaintiff let in documentary as well as oral evidence and the defendant was content with letting in oral evidence only. After considering the materials on record, the learned trial judge by judgment and decree dated 31.12.1977, decreed the suit for a sum of Rs. 4,677.71, payable to the 2nd plaintiff with proportionate costs and interest at 6 per cent p.a., from the date of plaint till the date of realisation. The learned trial judge held that the fact that in Ex. A. 1, it was found stated that the goods were booked at the “owner’s risk” does not absolve the defendant/Transport Carriers’ liability and that they should prove that it had acted diligently and that there was no negligence on its part and failing to do so, the defendant was answerable to the plaintiffs. Aggrieved, the defendant filed an appeal in A.S. No. 163 of 1979 before the District Court and the learned additional district judge by judgment and decree dated 31.10.1979, held that the findings arrived at by the trial judge were correct and dismissed the appeal. Hence, the above second appeal.
5. At the time of admission of the second appeal, for further consideration, the substantial question of law that was considered to arise for consideration was, as to whether the plaintiffs have proved the damage.
6. Heard learned counsel for the 2nd plaintiff72nd respondent. Learned counsel for the 2nd respondent has placed before Court two decisions, which are not only directly on the point, but also very much binding on this Court on the issues raised. The decision in Thiruppathy Venkatachalapathy Lorry Service v. New India Assurance Co. Ltd., 1988 I MLJ 64 : 1988 I.L.W. 327 is that of a Division Bench of Mohan, J., as the learned judge then was and Swamikkannu, J., wherein the Division Bench had an occasion to consider the duties and obligations of a public carrier like the appellant and the rights of the owner of the goods and the Insurance Company, which has chosen to reimburse the owner of the goods the loss. On an elaborate review of the case law on the subject, the Division Bench held that having regard to the statutory provisions contained in the Carriers Act, 1865, it is a well established principle of law that whoever agrees to transport goods of the pubic in a public carrier, is liable to pay damages caused to the goods agreed to be carried while in transport and at any rate, if delivery in tact was not made to the consignee. The learned judges of the Division bench had also adverted to a similar claim of the goods transported at ‘owner’s risk’ and held that even in such cases, the relevant question would be whether the carrier was liable under the statutory liability fastened upon it and that a carrier will always be held liable for loss or damage, as a common carrier’s liability. The said decision has been applied to a case similar to the one now under consideration by Govardhan, J. In the decision reported in Divisional Manager, New India Assurance Co. Ltd v. Murugan, Prop. Murugan Transports, 1996 TLNJ 127. The learned judge observed after adverting to the Division Bench judgment, referred to supra, that it was not necessary for the owner of the goods who was the consignor, to prove negligence on the part of the carrier and in the teeth of Section 9 of the Carriers Act, it was not open for the defendant to contend that there was no negligence on the part of the defendant carrier. The learned judge also, while repelling a plea that the insurance company has no privity of contract, held that an Insurance Company having satisfied the claim of the consignor, is entitled to a decree in their favour in view of the special power given to them by the consignor under the letter of subrogation. In view of the above position of law and also having regard to the concurrent findings of fact recorded by both the courts below, that the defendant/carrier has miserably failed in this case to prove that the carrier did not act negligently or that all sufficient care and precaution had been taken on their part, no exception could be taken to the well merited judgments and decrees of the courts below. The second appeal is devoid of merits. The second appeal, therefore, shall stand dismissed. No costs.