Avadh Behari Rohatgi, J.

( 1 ) THIS revision petition raises a point of procedure in the trial of suits. Weston Electronics Limited sent from Delhi 60 boxes of T. V. sets to Calcutta. The consignment was accepted by Nitco Roadways Pvt. Ltd. petitioner herein, for carriage for reward. On way the goods were damaged. The consignor recovered the value of. the goods from National Insurance Company Limited with whom they were insured. On subrogation the National Insurance Company Ltd. brought the suit against Nitco Roadways for the recovery of Rs. 85. 00u. 00. The Roadways were sought to be made liable as carriers of goods. The Roadways pleaded that near Varanashi on 13-3-1980 the tyre of the truck burst and as a result there was a serious accident causing injury to the driver and damage to the goods. This accident, it was said, "was beyond the control and not due to any negligence or carelessness on the part of the driver of the truck. "

( 2 ) ON this plea of the Roadways, the following two preliminary issues were raised:

" (2) Whether the plea of defendant that the accident had occurred beyond the control of defendant No. I and thus not liable to pay the damages is entertainable in law ?

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