Nature of business carried on is a vital factor for deciding liability.

M. Thanikachalam, J.

This judgment shall dispose of the above two appeals.

2. The defendant in O.S.No.52/1987 and O.S.No.263/87, on the file of the Sub Court, Cuddalore, having suffered two decrees, for payment of amounts, has preferred these two appeals, separately.

In this Judgment, the parties are referred as arrayed in the original suits.

A.S.No.47 of 1990

3. The facts leading to the case, necessary for the disposal of the appeal.

(a) The respondents in this appeal as plaintiffs had filed the suit (O.S.No.263/87), for recovery of a sum of Rs.48,162.67 with interest thereon at 9% per annum, from the defendant/appellant from the date of plaint till the payment.

(b) According to the plaintiffs, the first plaintiff who had sold 54 numbers of 132 KV Polycone Insulators to the Uttar Pradesh State Electricity Board, for a sum of Rs.1,66,599.07, consigned the goods in a securely packed wooden crates through the defendant Roadways at Vadalur on 26.11.1984, for safe carriage and delivery to the consignee at Chandausi, Moradabad District. The consignment was insured by the first plaintiff with the second plaintiff. The defendant-carrier after an unduly long and unexplained delay of nearly seven months effected open delivery of the consignment to the consignee on 1.7.1985 in a damaged condition. Out of 54 numbers of Polycone Insulators, 16 nos. were delivered in broken condition, for which a notice was issued, claiming compensation for the damages under Section 10 of the Carriers Act, 1865.

(c) The defendant carrier admitting and acknowledging the damages caused to 16 numbers of Insulators, issued certificate also on 20.7.1985. The defendant being a common carrier is liable, in law, to make good the loss to the plaintiff, since their liability being absolute and unconditional under the Carriers Act (hereinafter called 'the Act'.

(d) The first plaintiff on the basis of the contract of insurance, received the amount from the insurance company and the second plaintiff is entitled to proceed against the defendant carrier, for compensation, as per the assignment and subrogation. The defendant having failed to deliver the goods entrusted to them in a good condition, committing misfeasance and malfeasance, caused pecuniary loss to the first plaintiff, which the defendant is liable to discharge the same, under the statutory obligation. Despite lodging claim, issue of notice, the defendant failed, resulting the suit.

(e) The appellant/defendant in its written statement, accepting the entrustment of the goods, as pleaded in the plaint, had contended, that the Court at Cuddalore had no jurisdiction, whereas the Bombay Court alone will have jurisdiction, that the defendant company is not a common carrier, which is not obliged to carry for each and every person indiscriminately, that the goods sustained damage only because of the inherent defect in the goods, which are said to be highly fragile, improper packing, not providing sufficient insulation, and not due to any careless act of the defendant, that the goods were carried at owners risk and that the claim in any event is highly excessive.

(f) On the basis of the above pleadings, framing three issues, the parties went on trial. One Sundaramurthy working in the first plaintiff's company had been examined as P.W.1 on behalf of the plaintiffs and aid was sought from 8 documents exhibited as Exs.A1 to A8. The Branch Manager of the defendant Roadways had been examined as D.W.1 and goods forwarding notes of the defendant Roadways is exhibited as Ex.B.1.

(g) The learned trial Judge, considering the rival contentions of the parties, came to the conclusion, that the Court at Cuddalore had jurisdiction to entertain the suit, that the defendant Roadways is a common carrier, liable to answer the claim of the plaintiffs, in view of the admitted damages caused to the goods entrusted to the defendant, that the first plaintiff had received only a sum of Rs.32,736.83 from the second plaintiff under the co