Liability is that of the owner of lorry.

Swamikkannu, J.

1. A.S. No. 511 of 1981 is an appeal preferred by the first defendant Thiruppathi Venkatachalapathy Lorry Service, through partner N. Rathinasami Nadar against the judgment and decree dated 24.1.1981 in O.S. No. 91 of 1978 on the file of the Sub Court, Ramanathapuram at Madurai, decreeing the suit for damages as prayed for with costs. A.S. No. 659 of 1982 is an appeal by the third defendant Mama Roadways through its partner Javerchand, Dana Bazaar, Jalgaon, Maharashtra, against the judgment and decree in the very same O.S. No. 91 of 1978. The New India Assurance Company Limited, Madurai; M/s Sundaraj Match Industries Private Limited, through its Managing Director, Sivakasi; Plaintiffs 1 and 2, Shri Radha Shyam Sharma, Mama Roadways, Jalgaon, defendants 2 and 3 are respondents 1 to 4 in Appeal No. 511 of 1981. In A.S. No. 659 of 1982 the first plaintiff New India Assurance Company Limited, second plaintiff Sundaravel Match, Industries Private Limited, the first defendant Thirupathi Venkatachalapathy Lorry Service and second defendant Shri Radha Shyam are respondents.

2. The case of the plaintiffs New India Assurance Company Limited and M/s Sundaravel Match Industries Private Limited, Sivakasi, before the lower court is that the second plaintiff/M/s. Sundaravel Match Industries Private Limited is a manufacturer of safety matches and they transported 1000 bundles of safety matches through the first defendant from Sivakasi to Indore under the lorry receipt dated 23.3.1975 issued by the first defendant to the second plaintiff M/s. Sundaravel Match Industries Private Limited. At the time of the consignment, the second plaintiff also insured the goods with the first plaintiff under the insurance policy dated 28.3.1975. As per the lorry receipt issued by the first defendant, they agreed to transship the goods to the third defendant after the first defendant's lorry reached Jalgaon at the first defendant's risk. The goods were transported from Sivakasi to Jalgaon in the first defendant's lorry Myp 3639. After reaching Jalgaon, the first defendant transferred the goods on 1.4.1975 to the third defendant viz. Mama Roadways for transportment from Jalgaon to Indore. So, the third defendant was carrying the goods from Jalgaon to Indore in truck No. M.P. 2832 which belongs to the second defendant Shri Radha Shyam Sharma.

3. One Diwakar Jain, the power agent of the second defendant wrote a letter to the second plaintiff stating that they had transported 1000 bundles of safety matches belonged to him through lorry No. M.P. 2832 and near Rustampur Village at Kumti the said lorry met with an accident on 2.4.1975 at 3.00 a.m. in which the consignment of 1000 bundles of safety matches were burnt to ashes. The said Diwakar Jain had written a letter to the second plaintiff on 16.4.1975 in respect of the accident said to have occurred on 2.4.1975 at 3.00 a.m. The said accident took place due to negligence on the part of the third defendant's driver for which the defendants as common carriers are vicariously liable. The second plaintiff M/s. Sundaravel Match Industries, Sivakasi, made a claim with the first plaintiff New India Assurance Company, Madurai, for payment of a sum of Rs. 62,064 and also with the defendants. The first defendant Thiruppathi Venkatachalapathy Lorry Service sent a reply notice on 30.5.1975 stating that he had agreed to transfer the consignment only from Sivakasi to Jalgaon and a separate contract was entered into subsequently with the third defendant. It is further contended in the reply notice that the goods were carried at the owner's risk. Since the defendants are public carriers, they cannot say that the goods were carried at the owner's risk. No reply was received from the defendants 2 and 3. The lorry receipt issued by the first defendant is for transportment from Sivakasi to Indore, the destination point. The second plaintiff was not known to the third defendant. Since the first defendant's lorry per