Karnataka Transport Corporation Vs. National Insurance Bank Ltd. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 163-a : [subhash b. adi,j] application of the provisions with regard to the income of the deceased special provisions as to payment of compensation on structured formula basis held, where the claimants have restricted the income of the deceased to rs. 40,000/- p.a. or less, though initially they stated more than rs.40,000/- p.a., they can maintain the claim petition under section 163-a of the act. on facts held, as the claimants have restricted the income of the deceased at rs.40,000/-p.a. the claim petition under section 163-a of the act is maintainable. - according to the plaintiff's case as a result of fire the articles of major lakshman singh including his scooter, were destroyed and a survey was got conducted by amarnat akhan automobile.....hari nath tilhari, j. 1. this appeal under section 96 of the code of civil procedure, 1908, arises from the judgment and decree dated august 25, 1987, delivered by h.r. narayana rao, 20th additional city civil judge, mayo hall, bangalore, in original suit no. 10660 of 1981 (national insurance co. ltd. v. karnataka transport corporation), whereby the trial court on the basis of its findings recorded held that the plaintiff-respondent has been entitled to a decree for a sum of rs. 31,505 that is the amount which the insurance company had paid to major laxman singh, the insured, with costs and interest at the rate of 6 per cent. per annum from the date of decree till the date of realisation.2. the facts of the case in a nutshell are that the plaintiff filed the above suit for a decree for.....

Judgment:

Hari Nath Tilhari, J.

1. This appeal under Section 96 of the Code of Civil Procedure, 1908, arises from the judgment and decree dated August 25, 1987, delivered by H.R. Narayana Rao, 20th Additional City Civil Judge, Mayo Hall, Bangalore, in Original Suit No. 10660 of 1981 (National Insurance Co. Ltd. v. Karnataka Transport Corporation), whereby the trial court on the basis of its findings recorded held that the plaintiff-respondent has been entitled to a decree for a sum of Rs. 31,505 that is the amount which the insurance company had paid to Major Laxman Singh, the insured, with costs and interest at the rate of 6 per cent. per annum from the date of decree till the date of realisation.

2. The facts of the case in a nutshell are that the plaintiff filed the above suit for a decree for recovery of a sum of Rs. 32,505 with interest at the rate of 6 per cent. per annum from the date of the decree till the date of realisation. According to the plaintiff's case, the appellant has been a transport company carrying on the business of common carriers. According to the plaintiff's case, one Major J. Lakshman Singh consigned his household articles including a scooter for transportation from Bangalore to Gwalior through the defendant-company. The goods of Major Lakshman Singh were insured with the plaintiff-respondent under Policy No. C. No. 961/45/ 79-79/26. The goods were consigned under the consignment note No. 0606, dated April 9, 1979. The goods were carried by the defendant in Truck No. CPH-7164 from Bangalore to Gwalior. That en route, the truck at a distance of about 34 kms ahead of Indore-Khandwa Road, stopped at a railway level crossing and after the train had passed, the truck moved for some distance and then it was observed by the driver that the truck had caught fire. This took place at about 13 hours on April 18, 1979. That the plaintiff's case has been that the lorry apart from the articles of Major Lakshman Singh also carried beedies a highly inflammable material, without the knowledge of Major Lakshman Singh. According to the plaintiff's case as a result of fire the articles of Major Lakshman Singh including his scooter, were destroyed and a survey was got conducted by Amarnat Akhan Automobile Engineer and the surveyor submitted a report on April 19, 1979. Major Lakshman Singh addressed a letter to the defendant-appellant informing it that the defendant-appellant was liable to make good the loss sustained by him and also demanded a certificate of non-delivery of the goods. The case of the plaintiff has been that he addressed two further letters, namely, on April 26, 1979, and on May 28, 1979. The defendant-appellant by its letter dated April 25, 1979, advised Major Lakshman Singh to approach the plaintiff for compensation as the goods were destroyed due to act of God. On May 14, 1979, Major Lakshman Singh sent a letter by registered post acknowledgment due, calling upon the defendant to deliver the goods forthwith or to pay a sum of Rs. 41,800 the value of thegoods. It appears from the record, Major Lakshman Singh had also issued a letter dated April 19, 1979, for certificate of non-delivery of goods. The plaintiff's case is that his goods were insured with the company. It after having got the survey report, settled the matter with Major Lakshman Singh and the claim was settled at Rs. 32,120. Major Lakshman Singh on August 13, 1979, executed a letter of subrogation in favour of the plaintiff in the presence of H. Harwarilal Sharma, notary, at Gwalior, in pursuance of the same, Major Lakshman Singh subrogating all his rights in respect of the goods carried by the defendant and burnt during transit, to the plaintiff and the plaintiff issued a notice through its counsel and further notice oh June 26, 1980, but the defendant did not reply nor paid the amount either in part or whole of the plaintiff's claim, till the date of the suit. The plaintiff alleged that the defendant being the common carrier having carried goods of Major Lakshman Singh, after having received consideration of Rs. 2,317 as carriage freight, the carriage by the defendant of the goods was not a gratuitous act and goods having been destroyed by reason of negligence of the carrier the defendant is liable to pay the plaintiff, as insurer to Major Lakshman Singh and by reason of damage to his goods. With these allegations, the plaintiff filed the suit and claim the decree for Rs. 32,120 with interest from the date of the suit till the granting of decree, together with interest at the rate of 6 per cent. per annum.

3. The defendant filed the written statement and denied the liability. But the defendant admitted the plaint allegations made in paragraph 4 to the effect that the goods were consigned by Major Lakshman Singh, including his scooter and other household articles, including wooden bundles and bedding rolls, etc., with the defendant. The defendant also further admitted that the policy of insurance was taken by the said Lakshman Singh with the plaintiff. The case according to the defendant is that the goods consigned by the said Lakshman Singh were loaded into lorry in the presence of the consignor. They admitted that the plaintiff accepted the policy of insurance with full knowledge of the nature of the goods. The defendant further asserted that there were no inflammable goods on the truck carrying the goods of Lakshman Singh and that the plaintiff took out the policy of insurance of the said goods through the defendant, after inspecting the same. The defendant asserted-- in the written statement--that due care and caution had been taken on behalf of the defendant for the safe transportation of the goods. The defendant took the plea that the plaintiff is a body who is wholly responsible and liable to pay to the said Lakshman Singh, the value of the goods insured with it, in view of the policy itself. It denied its own liability. The defendant in paragraph 4 of the written statement asserted that the consignment notes issued for the goods consigned clearly show and indicate that it is nowhere responsible for loss of goods by fire and further it shall not be responsible or liable for the same. Thedefendant took the plea that the plaintiff's claim was not maintainable, nor could Major Lakshman Singh claim any damage from the defendant. The defendant alleged that there was collusion between the plaintiff and Lakshman Singh to defraud the defendant to the extent of the claim made in the plaint. The defendant asserted that the suit of the plaintiff was not maintainable and was liable to be dismissed in limine and the defendant further submitted that the suit was bad for non-joinder of parties and it further alleged that Major Lakshman Singh having not been made a party the suit was not maintainable. The defendant further asserted that the plaintiff has no locus standi to file the suit and the suit as such was liable to be dismissed. The defendant alleged in para. 9 of the written statement that there has been no negligence on his part and any loss caused to Lakshman Singh is not on account thereof, but on account of vis major that is act of God and thus denied its liability. The defendant denied the plaintiff's right to file the suit and it denied execution of the letter of subrogation by Lakshman Singh. The defendant has denied its liability to pay any amount claimed and asserted the suit to be not maintainable.

4. On the basis of the pleadings of the parties, the learned civil judge framed the following issues :

(1) Whether the plaintiff proves that the lorry of the defendant apart from the goods of Major G. Lakshman Singh was also carrying consignment of beedies, a highly inflammable material without his knowledge and consent ?

(2) Whether the plaintiff further proves that as per the report of the surveyor and loss engineer and the letter of subrogation dated August 13, 1979, executed by Major G. Lakshman Singh, they are entitled to recover damages of Rs. 32,120 from the defendant ?

(3) Whether the defendant proves that as per the consignment, note issued for the goods consigned, they are not liable for the loss of goods by fire ?

(4) Whether the suit is bad for non-joinder of G. Lakshman Singh ?

(5) Whether the defendant proves that the loss caused to Major Lakshman Singh is on account of vis major ?

(6) Whether the plaintiff proves that loss was caused due to the negligence of the defendant ?

(7) To what reliefs the parties are entitled ?

(8) What order and decree

5. In the trial court, the defendant did not produce any evidence. The plaintiff examined P.W.-1 and filed certain documentary evidence.

6. On the basis of assessment of the evidence on record the trial court held that in the circumstances of the case, it was not necessary for the plaintiff to prove issue No. 1, as the defendant had not adduced any evidence, including driver and surveyor to explain as to how the truck caught fire,on account of the inflammable material or not. The defendant's evidence is silent and particularly because it is not the case of either of the parties that the truck carried beedies and so the truck caught fire. This being not the case of the parties, there has been no necessity of plaintiff proving this fact. The trial court dealing with issues Nos. 3, 5 and 6 held that it is for the defendant to prove that there was no negligence on his part and it was not necessary for the plaintiff to prove negligence on the part of the carrier. The learned trial court held that in view of Section 9 of the Carriers Act, 1865, the liability of the carrier has been absolute and the defendant was liable to make good the loss sustained by the owner of the goods, until and unless he proves that there was no negligence on his part or they have taken due care. The trial court further held that the cause of action for the plaintiff is the letter of subrogation issued by Major Lakshman Singh and this being not disputed that Major Lakshman Singh is the owner of the goods and letter of subrogation was not necessary. The trial court found that the insurance company has settled the claim of Major Lakshman Singh and he had executed the letter of subrogation so the plaintiff is entitled to recover Rs. 32,120 from the defendant, as the plaintiff stood subrogated in place of Lakshman Singh. The trial court further found that negligence is to be presumed, when the loss of goods has been proved that goods had not been delivered and had been destroyed in the course of transit, when they were taken for destination by public carrier. Having recorded these findings, the trial court decreed the plaintiff's suit for a sum of Rs. 31,505 as it held that as per the survey report the plaintiff had paid a sum of Rs. 31,505 to Major Lakshman Singh and had settled the claim. So it was entitled and decreed the suit for a sum of Rs. 31,505 only with interest at the rate of 6 per cent. per annum from the date of the decree till the date of realisation.

7. Feeling aggrieved from the judgment and decree of the trial court, Karnataka Transport Corporation has come up in appeal.

8. I have heard C.B. Srinivasan, learned counsel for the appellant at length. C.B. Srinivasan contended before this court that the liability of the defendant-appellant would have arisen only on proof of negligence or lack of due care on the part of the defendant when carrying the goods. Learned counsel contended that the facts of the case per se reveal that the fire had taken place neither on account of negligence of the appellant nor on account of lack of carefulness on the part of the appellant, nor on account of any connivance of the defendant-appellant or its employees, but it was an inevitable accident from the act of God and, therefore, court below committed the error of law and error of fact in decreeing the plaintiff's claim and the decree passed is liable to be set aside. Shri Srinivasan contended that the burden to prove negligence was not on the part of the defendant-appellant, but on the plaintiff-respondent and the letter of theplaintiff and the evidence on record does not establish any negligence, instead it proves that fire had taken place in the truck due to unavoidable and inevitable accident.

9. I have applied my mind to the contentions of learned counsel for the appellant.

10. The Carriers Act, 1865, did not apply to the State of Mysore or of Karnataka till as late on December 29, 1978, when the Act was made applicable to the State of Karnataka, by virtue of Government notification, and by the Central Laws (Karnataka Extension) Act, 33 of 1978. Section 2 of Act No. 33 of 1978, provides the Central Acts specified in the schedule are hereby extended to, and shall be in force in the whole of the State of Karnataka. In the schedule to the Act, this Carriers Act of 1865, has been mentioned as item No. 3.

11. In this view of the matter, since the Carriers Act of 1865, became applicable in the State of Karnataka from December 29, 1978, and the cause of action for the suit did arise in this case, in April, 1979, and the suit was filed on December 18, 1981, the provisions of the Carriers Act, 1865, will govern and control any litigation in which damages were or are claimed against carriers for loss of goods delivered or entrusted to the carriers for being delivered at the destination or in cases where there is non-delivery of the goods at the place of destination. This case is to be examined in that context. It would be just and proper to refer to the material provisions of the Carriers Act, to examine the contentions of learned counsel for the appellant.

12. The Carriers Act, 1865, has been enacted to determine the rights and liabilities of the common carrier and in order to enable the common carriers to limit their liabilities for loss of property delivered to them to be carried and also to declare their liability for loss or for damage to such property by negligence or criminal acts of themselves, their servants or agents. Section 3 of the Act provides that common carriers shall not be liable for the loss or damage to the property delivered to him to be carried, if the value exceeds one hundred rupees and it is of the description contained in the schedule to the Act, unless the person delivering such property to be carried, or some person duly authorized in that behalf, shall have expressly declared to such carrier or his agent the value and description of the property.

13. Section 4 of the Act authorizes the carrier to require payment for the service to be rendered.

14. Section 5 of the Act entitles a person to recover in respect of property lost or damaged, as well as to recover the money paid for its carriage.

15. Section 6 of the Act provides that the liability of the common carrier for the loss or for damage of the property delivered to him to be carried not being of the description contained in the schedule to the Act, shall not be deemed to be limited and affected by any public notice, but it provides that such carrier not being the owner of the railroad or tramroad, may by special contract signed by the owner of such property so delivered as last aforesaid or by some person duty authorised in that behalf by such owner, limit his liability in respect of the same.

16. Section 7 of the Act deals with the liability of the owner of the railroad or tramroad constructed under Act XXII of 1863, and not limited by special contract. It provides in what cases, the owner of the railroad or tramroad shall be liable for the loss and damages.

17. Section 8 of the Act is material. It may be quoted in extenso. Section 8 of the Act reads as under :

'8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent--Notwithstanding anything hereinbefore 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 Section 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.'

18. No doubt a reading of this section would reveal that the liability of the carrier is for the loss or damage caused to the property, either by the criminal act of the carrier or his agents or servants or loss caused to the owner of such property, whether such loss or damages has arisen from the negligence of the carrier or his agents or servants.

19. Section 9 of the Carriers Act provides that the plaintiff, in suits for loss, damage or non-delivery, is not required to prove negligence or criminal act. Section 9 of the Act reads as under :

'9. Plaintiffs, in suits for loss, damage or non-delivery, not required to prove negligence or criminal act.--In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents.'

20. It is one of the trite principles of law of interpretation that two sections, which may appear to be conflicting, effort must be made to harmonise them and harmonious construction should be put to them to avoid any conflict. A reading of these two sections per se reveals that in case of loss, damage or non-delivery of the goods delivered to the carrier or entrusted to the carrier for carriage to a particular destination, it is to be presumed as a necessary implication of law that loss, damage or non-delivery was due to the negligence, etc., of the carrier or his servants or agents, unless and until thedefendant carrier proves that the loss has been caused due to the act of God and the cause for loss has not been the negligence of the carrier, the cause for loss has been an inevitable accident which could not be avoided in spite of best efforts and the burden does lie on the defendant to establish it. That may be a different case where the plaintiff alleges a specific type of negligence or negligent act on the part of the defendant that he may be required to prove, otherwise as the pleading of general nature, general allegations that because of the negligence of the defendants, the goods were lost, the plaintiff is not required to lead evidence to prove that negligence. The presumption would be that the defendant is liable to make good the loss and the loss had occurred due to the negligence of the carrier. No doubt that presumption is rebuttable and can be rebutted by the defendant by producing the necessary evidence to show circumstances establishing that cause of loss has been the act of God or inevitable accident or something which was beyond the control of the defendant. The burden being on the defendant, the defendant is required to produce the evidence to prove that he had taken due care as a reasonable person is expected or would have taken and that there was no negligence on his part.

21. In the case of London and North Western Rly. Co. v. Richard Hudson and Sons Ltd. [1920] AC 324, Lord Dunedin, explained the question of liability of the carrier. His observations read as under :

'That a common carrier is an insurer of goods entrusted to him for carriage, and can only excuse himself on the ground of act of God, or of inherent vice (in which expression I include bad packing) of the goods themselves is axiomatic. Now Lord Mansfield in Forward v. Pittard [1785] 1 TR 27 at page 33, speaks of this obligation on the carrier's part as an obligation independent of the contract. By that I understand that it is not an adjusted term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee.'

22. In the case of Tugun Ram v. Dominion of India, : AIR1966All260 , the Division Bench of the Allahabad High Court, referring to Section 8 and Section 9 of the Act, their Lordships of the Allahabad High Court had been pleased to hold and lay down as under :

'The opening words of this section make it perfectly clear that its provisions override those of Section 6. In other words, that whatever other kinds of liabilities the carrier may be able to limit by special contract with the owner of the property, he cannot limit his liability for the criminal act or negligence of himself or any of his agents and servants. This prohibition is a statutory prohibition, with the result that if a special contract contains a stipulation in derogation of it, it would be void to that extent as offending Section 8.'

23. While making these observations the Allahabad High Court made reference to the decision of the Calcutta High Court in the case of River Steam Navigation Co. Ltd. v. Jamunadas Ram Kumar, : AIR1932Cal344 , and another case River Steam Navigation Co. Ltd. v. Shyam Sunder Tea Co. Ltd. AIR 1955 Assam 65. Dealing with Section 9 of the Act, their Lordships observed, vide paragraph 15 of the report as under :

'Section 9 of the Act lays down that in a suit for loss, damage, or nondelivery of goods entrusted to a common carrier the plaintiff is not required to prove negligence or criminal act of the carrier or his agents or servants. Under this section, therefore, once loss, etc., is proved, negligence or criminal act is presumed and it then becomes the duty of the common carrier to rebut that presumption, failing which, the suit has to be decreed.'

24. In the case of Inter State Transports v. Pfizer Ltd. : ILR1987KAR2870 , the Division Bench of this court considered Hercules Ins. Co. v. Ganesh Transport [1969] 1 Mys. LJ 316 and after having distinguished the decision, this court observed, 'the effect of Section 6 and Section 8 of the Act is, that a common carrier is liable for loss and damage caused due to its negligence or misconduct of its agents or servants, and that liability cannot be limited by contract. Therefore, on the principles laid down by the Division Bench of this court, it is futile for Mr. Prabhu to contend that the liability for any damages due to negligence or misconduct on the part of the defendant, its employees, servants and agents is excluded by a clause more particularly specified in the G.C. Note. In that case also, a similar clause found in the G. C. Note was considered by the Division Bench and it took the view that condition that 'the goods to be sent at owner's risk and that no responsibility would be taken in case of fire or accident', do not and cannot protect a common carrier if the damages flowed from its negligence or misconduct. So, it was incumbent on the defendant to prove that there was no negligence or misconduct on its part.

25. The Division Bench referred to the case of Hercules Ins. Co. v. Ganesh Transport [1969] 1 Mys. LJ 316 and quoted paragraph 21 of that judgment, which reads :

'Where the plaintiffs allege a specific case of negligence, the burden is on them to make out a prima facie case of specific act of negligence. The law on the subject has been succinctly stated in American Jurisprudence, second volume 14, second edition, at page 132, paragraph 618 thus :

'In an action against a common carrier based upon a contract of carriage to recover damages for loss of or injury to goods during the course of transportation, the plaintiff need neither plead nor prove negligence on the part of the carrier, since the carrier, as an insurer of the safety of the goods, is liable for loss or damage thereto regardless of negligence. The plaintiff is aided in his case by the presumption of negligence which arises when he establishes that the goods mere delivered to the carrier in good condition, and that they were, delivered at the destination in damaged condition, or were, not delivered. If, however, the plaintiff alleges specific acts of negligence, he then has the burden of proving such negligence' It was not incumbent on the plaintiffs to plead that the damage was caused on account of negligence but having alleged that the damage was caused on account of specific acts of negligence, it was not necessary for the defendant to plead that the damage was on account of inevitable accident ; it was sufficient for him if he denied that there was any negligence.'

26. A reading of this Division Bench decision in Hercules Insurance Co. v. Ganesh Transport [1969] 1 Mys. LJ 316, lays down two principles of law. Thus, in case of any carrier to whom goods have been delivered for carriage, the plaintiff is not required to prove negligence ordinarily. He has only to prove that goods were delivered to the carrier or entrusted to the carrier for being taken to the destination and being delivered to the consignee. He has to prove that goods were either not delivered or that they were delivered in damaged condition. Once these two facts have been established, the presumption of negligence will arise in favour of the plaintiff that there was negligence on the part of the carrier, unless the defendant produces evidence to rebut it. This is the general principle of law. It is only in cases where the plaintiff alleges specifically the cause of negligence on the part of the defendant, the plaintiff may he required to prove this specific act of negligence, otherwise the presumption is in favour of the plaintiff. At page 2878, the Division Bench in the case of Inter State Transports v. Pfizer Ltd. : ILR1987KAR2870 observes :

'But in the instant case, the plaintiffs had not alleged any specific acts of negligence. They had only pleaded that the defendant was a common carrier and it had not acted in a prudent manner and the damage and loss of goods in question was caused by rash and negligent acts of the defendant, its servants and agents. Therefore, a duty was cast on the defendant to prove that its servants and agents had acted prudently and not negligently.'

27. In the present case, the plaintiff has not alleged any act, specific act, on the part of the defendant of negligence. He has made general allegations that because of negligence, etc., of the defendant the goods that were entrusted to them by Major Lakshman Singh had been damaged and destroyed. There is no dispute so far as the entrustment of the goods to the carrier is concerned. There is no dispute that the goods did not reach the destination. When these facts have been established, the burden was on the defendant to have proved that the loss has been caused by act of God or because of inevitable accident and there was no negligence on his part. Learned counsel for the appellant contended that the truck had caught firein which the goods were placed when it was on the way. He contended that when the truck was going, it stopped at the railway level crossing and when the train had passed, the driver proceeded further and then it was marked by the driver that the truck had caught fire and in spite of efforts of the driver, goods were lost completely in the fire. Learned counsel contended that it may be said to be an act of God. I am unable to accept this contention. There are many factors which had to be taken note of. Firstly, there is no evidence on behalf of the defendant how the truck had caught fire, There are many questions which had to be answered by the defendant. If the truck was proceeding and when the railway level crossing gate was closed, the driver stopped the truck, it has to be established at what distance from the railway crossing gate, the truck was stopped. Whether it was immediately adjacent to the gate existing by the side of the railway crossing gate, the truck was stopped or it was at some distance away from the gate, there is no evidence. If the truck is made to stop immediately adjacent to the railway crossing gate, there is every possibility that when the train was passing, fire from the burning coal falling on the truck, if it was at a distant place, safer place, it might not. The driver if he is not negligent, he will always keep in view that the truck loaded with the goods is not placed near the railway gate, where there is possibility of its coming in contact with the burning coal. If the driver did not take care of it, then definitely it could be said to be a case of negligence on the part of the driver. Drivers of the trucks and bus are expected to take special care when moving on the road or near the railway crossing or in cities where innocent school children are crossing the road. They cannot escape the liability by saying that although he was negligent that was an act of God. In such a case the driver was a witness to have been produced by the defendant-appellant, because those situations would be known to the driver and he could have explained it. But the defendant-appellant whose truck driver, at the most who was its employee, has not been produced without any rhyme or reason. The failure to produce its driver on the part of the defendant also leads to a circumstance which may make the court to raise an adverse presumption against the defendant's case. If the case of the defendant-appellant, of inevitable accident or act of God had been correct, they would have definitely produced the driver to show that the driver had taken all necessary precautions at that time. The driver not having been produced, this court is bound to raise an adverse presumption against the defendant-appellant's version of case coupled with the presumption that arises under Sections 8 and 9 read together, which is in favour of the plaintiff-respondent, that there has been negligence on the part of the carrier or its driver, which has been responsible for the loss of the goods, i.e., burning of the goods. Learned counsel contended that the driver had not been produced because there was no proper framing of theissue. I am unable to accept this contention. The driver of the carrier was their employee. It is one of the well settled principles of law that when the best possible evidence, whether in the form of documentary evidence or oral, is in the possession of the parties to the suit or litigation, it was their bounden duty to place the same before the court for examination. The sheer doctrine of burden of proof cannot be relied upon and cannot be of any help in such a case, where evidence is in the possession of the parties to the suit. No doubt the doctrine of burden of proof applies to the case where evidence is in the possession of a third party, but not in cases where it is in the possession of the parties to the suit.

28. When I so observe, I find support for this view from the decision of their Lordships of the Privy Council in T.S. Murugesam Pillai v. M.D. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6, and from the decision of their Lordships of the Supreme Court in Hiralal v. Badkulal, : [1953]4SCR758 ; Virendra Kumar Saklecha v. Jagjiwan, : [1972]3SCR955 and Enuga Lakshmamma v. Vennapusa Chinna Malla Ready, : AIR1985SC658 . I further find support for my view from the decision of the Division Bench of the Madras High Court in P.K. Kalasami Nadar v. K. Ponnuswami Mudaliar, AIR 1062 Mad 44.

29. As in defence no evidence is produced and defendants have not explained the circumstances in which the truck caught fire and what precautions they had taken, the presumption that arises under Sections 8 and 9 of the Carriers Act and the presumption under Section 114 of the Evidence Act, do apply to the case and these presumptions do not stand rebutted. It cannot be said that the defendants-appellants have rebutted the above presumptions, It is also established that the company had settled the matter with Major Lakshman Singh and deed of subrogation had been executed in favour of the plaintiff, which is a power of attorney in favour of the insurance company plaintiff-respondent, the insurance company stepped into the shoes of Major Lakshman Singh and as such it was entitled to the decree as claimed and in any case, for the sum which had been paid by the company to Lakshman Singh, that is a sum of Rs. 31,505. Under Section 34 of the Code of Civil Procedure, it is within the discretion of the civil court to award interest on such sums, but not beyond the limits prescribed by Section 34 that is at the rate of 6 per cent.

30. Therefore, in my opinion, the trial court did not commit any error of law or of jurisdiction in decreeing the plaintiff's suit with interest at 6 per cent. per annum for a sum of Rs. 31,505.

31. The appeal as such appears to be devoid of merits and as such it is hereby dismissed, but with no costs as regards the appellate court.