JUDGMENT R.L.Khurana, J.: The first plaintiff is Messrs. United India Insurance Company having its registered office at Madras and Divisional office at Ludhiana, while the second plaintiff Messrs. Malwa Cotton Spinning. Mills is a registered limited company having its registered office at Ludhiana (Punjab) and works at Paonta Sahib in District Sirmaur (H.P.). 2. The defendant is a public common carrier -carrying on its business in transporting goods from place to place for hire. It has its registered office at Baroda. The second plaintiff purchased 42 bales of Acrylic Fibre from Messrs. Indian Petro-chemical Corporation, Baroda. Such bales were dispatched by the said Corporation for redelivery to the second plainff at its works at Paonta Sahib through the defendant on 20.9.1995 vide consignment, note No.6447 dated 20.9.1995 (copy Ex.PWl/E5). The consignment of 2 bales of Acrylic Fibre during the course of transit was insured by the second plaintiff with the first plaintiff under policy No.200900/21/36/11/74/95. the truck of the defendant which was carrying the consignment, met with an accident on 23.9.1995 near village Sampla in District Rohtak (Haryana) while on its way to Paonta Sahib. The truck overturned and fell down into the water. As a result all the 42 bales were submerged in water and were damaged. The consignment in a damaged condition was delivered to the second plaintiff at Paonta Sahib on 29.9.1995. A claim for the damage was accordingly lodged by the second plaintiff with the defendant vide registered notice dated 30.9.1995. The defendant in response to such notice did not pay the damages claimed. Instead it issued a damage certificate dated 3.10.1995 (E.X.PW1/E1). In such certificate, which was issued without prejudice, the defendant admitted that all the bales were damaged in water. It was stated that the truck overturned due to heavy rains and natural flood enroute and for the reasons beyond their control. 3. The second plaintiff then lodged the claim with the first plaintiff. The damage age was got assessed by the first plaintiff through a surveyor, at Rs.6,99,980/-. The damage so assessed was paid by the first plaintiff to the second plaintiff on 20.11.1995. 3. The second plaintiff then lodged the claim with the first plaintiff. The damage age was got assessed by the first plaintiff through a surveyor, at Rs.6,99,980/-. The damage so assessed was paid by the first plaintiff to the second plaintiff on 20.11.1995. In consideration of the said payment of claim by the first plaintiff, the second plaintiff executed a letter of subrogation, an assignment, assigning and transferring in favour of the first plaintiff all its rights and remedies including the right to sue the defendant for recovery of the amount of damages. 4. It is under these circumstances that the present suit for the recovery of Rs.6,99,980/- along with interest at the rate of 18% per annum from the date of suit till realisation has come to be filed by the two plaintiffs. 5. In claiming the amount of damages, it has been averred that the truck driver/ agents of the defendant failed to take proper and reasonable care while carrying the consignment of 42 bales of Acrylic Fibre as a result of which the truck met with an accident on its way near village Sample in District Rohtak. 6. The first plaintiff has claimed the amount in its own name under the letter of subrogation executed in its favour by the second plaintiff in consideration of the amount paid by it to the second plaintiff. In the alternative it was pleaded that tin second plaintiff being the owner and consignee of the bales was entitled to claim the loss of goods. 7. The defendant though was duly served, failed to put in appearance to contest the suit. The defendant was as such ordered to be proceeded against exparte vide order dated 26.3.1997 passed by the learned Registrar (Vigilance). 8. It may not be, however, out of place to mention here that under the forwarding letter dated 22.3.1997 of Shri Moinuddin T. Refai, Advocate, Baroda, written statement of the defendant was received by post on 26.3.1997. The defendant while admitting the damage to the consignment and while denying its liability has averred in the following turns:- "That 42 bales of Supacry 1- MCBR 3 X 64 (Acrylic Fibre) was transported through defendant transport company from Messrs. The defendant while admitting the damage to the consignment and while denying its liability has averred in the following turns:- "That 42 bales of Supacry 1- MCBR 3 X 64 (Acrylic Fibre) was transported through defendant transport company from Messrs. Indian petro chemical Corporation Ltd., Baroda to Malwa Cotton Spinning Mills, Paonta Sahib on 20.9.1995 and the goods were loaded on truck No.HYS-1737 and the lorry receipt vide LR No. 6647 dated 20.9.1995 were also issued to plaintiff No.2. And the goods were loaded at the owners risk and we always load the material (goods) at owners risk and the owner himself is responsible for any loss occur during the transit. That the above said goods were loaded on 20.9.1995 and the said truck met with an accident on 23.9.19-95 near village Sampla District Rohtak due to flood all the goods were only submerged in water by natural calamity so far that the defendant (transport company) is not responsible for the same. The goods were insured with plaintiff No. 1 and on the basis of the said insurance the plaintiff No.2 has taken claim of Rs. 6,99,980/-from the Insurance Company and the damage goods is also taken by the plaintiff No.2 That the goods were damaged by Mood (natural calamity) and not by negligence of defendant or his agent/driver. Therefore, the defendant is not responsible for the payment of damages or loss occur to the plaintiflNo.2" . Exparte evidence was led by the plaintiffs. 9. I have heard Kanwar Kuldip Singh, Advocate, the learned counsel for the plaintiffs and have also gone through the record of the case. . Following points arise for determination in the present case:- 1. Whether the suit is competent in its present form? 2. Whether the consignment was damaged due to negligence of the driver/agent of the defendant? 3. To what amount, if any, is the first plaintiff or second plaintiff entitled to? 4. Whether the plaintiffs are entitled to interest, if so, at what rate? Ex. PW 1/H is the original letter of subrogation and special power of attorney executed by the second plaintiff in favour of the first plaintiff in consideration of the amount of Rs.6,99,980/received by it from the later, assigning and transferring all its rights and remedies in respect of the damaged goods. Ex. PW 1/H is the original letter of subrogation and special power of attorney executed by the second plaintiff in favour of the first plaintiff in consideration of the amount of Rs.6,99,980/received by it from the later, assigning and transferring all its rights and remedies in respect of the damaged goods. In Union of India vs. Sri Sarada Mills Ltd, (AIR 1973 SC 281) it was held:- "Subrogation does not confer any independent right on underwriters to maintain in their own name and without reference to the persons assured, an action for damages to the thing insured. The right of the assured is not one of those rights which are incident to the property insured." The right of the insurer against the person responsible for the loss docs not rest upon any relation of contract or of privities between them. It arises out of the nature of the contract of insurance as a contract of indemnity and is derived from the insured alone and can be enforced in his right only.. 10. Dealing with the law of subrogation, the Madras High Court in, Assam Bengal Roadways (P) Ltd. vs. Hindustan Photo Films Manufacturing Co. Ltd. and another (11(1988) ACC391) has held :- "The general rule of law is that where there is a contract of indemnity (it matters not whether it is a marine policy, or a policy against fire on land, or any other contract of indemnity) and a loss happens, anything which reduces or diminishes that loss reduces or diminishes the amount which the indemnifier is bound to pay; and if the indemnifier has already paid it, then, if anything which diminishes the loss conies in to the hands of the person to whom he had paid it, it becomes an equity that the person who has already paid the full indemnity is entitled to be recouped by having that amount back. That the insurer is entitled to recumbent only for the loss for which he has paid and to the extent of his payment is clear from what Lord Afkin said in Glen Line v. Attorney General (1930) 46,1 ;R 451." 11. In the case before the Madras High Court, the suit for recovery of damages against the common carrier was jointly filed by the insurer and the insured of the damaged goods. In the case before the Madras High Court, the suit for recovery of damages against the common carrier was jointly filed by the insurer and the insured of the damaged goods. A letter of subrogating, like in the present case, was executed by the insured in favour of the insurer. It was held :- "The plaintiffs being the assured and the insured.-certainly ca/i figure as co-plaintiffs especially when the principle of subrogation comes to play a prominent role Li the relationship." 12. To the similar effect is the view of Gujarat High Court in The Rajasthan Golden Transport Co.P. Ltd. De/hfvs. The United India Fire and General Insurance Co. Ltd, Ahmedabad and another (AIR 1980 Gujarat 184). In view of the settled law, as stated above, the present suit as laid is competent. The point is decided in favour of the plaintiffs. Point No.2 " 13. It is not disputed that 42 bales of Acrylic Fibre were damaged in an accident near Sample in District Rohtatk on 2X9.1995 on its way to Paonta Sahib. The question is whether the bales were damaged on account of any negligence on the Part of defendant, its agents and servants. The learned counsel for the plaintiff has contended that once damage to the goods is proved, negligence on the part of the carrier (the defendant in the present case) is to be presumed and that the burden of proving absance of negligence is on the carrier. .14. At this stage it would be useful to extract sections 8 and 9 of the Carriers Act, 1865 :- "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 dam age 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. 9. 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 earner 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." 15. A bare reading of the provisions contained under Section 9, quoted above, shows that once the loss ,, damage or non-delivery of the goods is proved, the negligence or criminal act on the part of the carrier is presumed, and the onus use on the carrier rebut such presumption. 16. Thus, the onus of proving negligence of the defendant is not on the plaintiffs. In view of the admitted damage to the consignment of 42 bales of Acrylic Fibre in the present case, the negligence on the part of the defendant has to be presumed and it was for the defendant to rebut such presumption by showing absence of negligence on his part. 17- In P.K. Kalasami Nadar vs. K.Punnuswami Mudaliar and others (AIR 1962 Madras 44) and in Assam Bengal Roadways (p) Lid. vs. Hindustan Photo Films Manufacturing Co.Lld. and another (II (1988) ACC 391) (supra) it has been held that in a suit against the common carrier for loss, damage or non- delivery of goods entrusted to the carrier the plaintiff is not required to prove negligence, the reason being that liability of a common carrier is that of an insurer. 18. In Assam Bengal Roadways Ltd. and another vs. Union of India (AIR 1988 Karnataka 157) it was held that section 9 of the Carriers Act, 1865, relieves the plaintiff from proving the negligence or the criminal act referred to in section 8. Sections 8 and 9 are to be read together. If so read, the burden of showing that the loss or damage that has caused to the property, was not owing to the negligence or criminal act of the carrier is on thee arriver, since the carriers liability is declared under Section 8 it can escape the liability only by showing that the liability is not attracted due to absence of the vitiating elements stated in section 8. 19. 19. In the present case, as stated above, the defendant did not choose to put in appearance inspite of service and was thus ordered to be proceeded against exparte. The damage to the 42 bales of Acrylic Fibre has been admitted by virtue of the damage certificate Ex. PWl/El as well as in the written statement, which has received by post. Therefore, negligence on the part of they defendant was to be presumed in the absence of evidence by the defendant to show absence of negligence or criminal act on its part. 20. It is, therefore, held that the consignment of 42 bales of Acryl Fibre! was damaged due to negligence on the part of the defendant, its agents/* servants. The point is answered in favour of the plaintiffs. Point No.3 21. It is in evidence that a sum of Rs. 6,99,980/- was paid by the first plaintiff to the second plaintiff as compensation for the damaged goods. 22. On a claim having been lodged with it by the second plaintiff, the first plaintiff appointed Messrs. Protocol Surveyors and Engineers, Noida, to assess the damage. The surveyors, vide report Ex.PW 1/E assessed the loss at Rs.8,93,233/-. Salvage value at the rate of 17.5% was assessed at Rs.1.56,316/-. After deducting the salvage value from the total loss assessed, the net loss was assessed at Rs.7,36,917/-. As against such net loss assessed, a sum of Rs.6,99,980/- was paid by the first plaintiff to the second plaintiff which was accepted by the latter in full and final settlement of its claim. 23. The loss, therefore, was rightly assessed and paid by the first plaintiff to the second plaintiff. Therefore, the first plaintiff is entitled to recover the amount of Rs.6,99,980/- from the defendant. This point is accordingly found in favour of the plaintiffs. Point No.4... 24. The plaintiffs have claimed interest on the suit amount at the rate of 18% per annum from the date of suit till its realisation. Section 34, Code of Civil Procedure, reads as under:-"34. This point is accordingly found in favour of the plaintiffs. Point No.4... 24. The plaintiffs have claimed interest on the suit amount at the rate of 18% per annum from the date of suit till its realisation. Section 34, Code of Civil Procedure, reads as under:-"34. Interest.-(l) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6 per cent, per annum as the court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as die court thinks fit: Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6 per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual role, the rate at which moneys are lent or advanced by nationalized banks in relation to com-" metrical transactions. . . Explanation I. In this sub-section nationalised bank means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970(5 of 1970). . . Explanation II For the purposes of this section, transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability." 25. The amount sought to be recovered is connected with the business of the defendant. Therefore, the liability has arisen out of a com metrical transaction within, the meaning of Explanation II, quoted above. 26. Admittedly, there is no contract between the parties with regard to the rate of interest. No evidence has been led to show the rate of interest at which moneys are lent or advanced by the nationalised banks. Therefore, in the absence of necessary evidence, the first plaintiff is held entitled to interest on the suit amount of Rs.6,99,980/- at the rate of 12% per annum from the date of suit, that is; 4.9.1996 till realization. The point is answered accordingly. Therefore, in the absence of necessary evidence, the first plaintiff is held entitled to interest on the suit amount of Rs.6,99,980/- at the rate of 12% per annum from the date of suit, that is; 4.9.1996 till realization. The point is answered accordingly. 27. In view of my findings on points No. 1 to 4 above, a decree for a sum of Rs.6,99,980/- with costs is passed in favour of the first plaintiff and against the defendant. The first plaintiff shall further be entitled to interest on the decretal amount at the rate of 12% per annum from ;he date of suit till its realisation. -