Judgment :- 1. Plaintiffs 1 and 2 who were non suited by the judgment and decree dated 11th September, 1986, made in O.S.No.72 of 1985, by the learned District Judge of Uthagamandalam, are the appellants in this first appeal. Being aggrieved by the dismissal of the suit, the plaintiffs in the suit have preferred the present appeal. 2. Heard Mr.K.Padmanabhan, learned counsel for M/s.Kurian Associates appearing for the appellants and none appears for the respondent. 3. For convenience, the parties will be referred arrayed before the trial Court. The first plaintiff is the consignor while the second plaintiff is the insurer of the consignment and they have joined together and instituted the suit O.S.No.72 of 1985 on the file of the District Court, Nilgiris at Uthagamandalam praying for a judgment and decree directing the defendant to pay Rs.55,782.50 with interest at Rs.40,130.50 at 18% per annum from the date of plaint till date of realisation and for other incidental or consequential reliefs. 4. The plaintiffs case could be summarised briefly. The first plaintiff owner of the consignment entrusted the consignment to the defendant covered by an invoice Nos.I and II, dated 3rd November, 1982. The defendant transported the consignment contemning tea leaves in lorry Boarding Nos.TMN.2097 and TMN.1998, each lorry containing 200 chests of tea and the total value of the consignment entrusted; for transportation being Rs.3,94,800. The tea consignment was intended for shipment to Moracco. According to the plaintiffs due to the gross negligence of the defendant and his men in the transportation of consignment, the consignments reached Cochin in wet and damaged condition on 5.11.1982. As a result, the buyers had rejected the consignment. A survey was carried out to ascertain the damages at Cochin. The first plaintiff consignor had to bring back the damaged tea to their factory at Sholur and to reprocess the same at a considerable cost. Subsequently the first plaintiff could sell the same only at a lesser price. Placing reliance on the survey report the plaintiff further states that the second plaintiff was addressed on 5.11.1992 intimating the details of damages suffered as well as the cost of damage. The first plaintiff also intimated the same to the defendant. The defendant in his reply dated 9th November, 1982 required the first plaintiff to make necessary claim with the insurer, the second plaintiff and to bear with the defendant for the inconvenience. The first plaintiff also intimated the same to the defendant. The defendant in his reply dated 9th November, 1982 required the first plaintiff to make necessary claim with the insurer, the second plaintiff and to bear with the defendant for the inconvenience. After exchange of notices the plaintiffs instituted the suit for the recovery of Rs.67,450 while giving up the break up particulars of damages suffered. The consignment got damaged due to the negligence and carelessness on the part of the defendant and his employees while transporting the consignment from the first plaintiffs Estate to Cochin. The consignment were insured with the second plaintiff. The second plaintiff settled the first plaintiffs claim and called upon the defendant to reimburse the same. As the second plaintiff insurer had settled the claim of the first plaintiff after getting a necessary deed of subrogation executed by the first plaintiff in favour of the second plaintiff on 3.3.1983, the suit has been instituted. Out of the total suit claim of Rs.55,782.50, a sum of Rs.40,130.50 represents the damages paid to the 1st plaintiff and the survey charges incurred and Rs.15,652.00 relates to interest thereon at 18% per annum from 15.4.1983 to 15.6.1985. The plaintiffs have jointly filed the suit and have prayed for a decree against the defendant to pay a sum of Rs.55,782.50 with interest. 5. The defendant resisted the suit claim pleading that the suit claim is false, vexatious and the suit is not maintainable on facts. According to the defendant, the chests were entrusted for being transported at the risk of the first plaintiff and the transportation was at the owners risk. The first plaintiff had suppressed the terms and conditions under which the goods were transported. The condition found in Clause 2(b) is specific and the condition reads thus: “2. The consignments are carried at owners risk: (b) The company does not hold itself responsible for any kind of loss, damages or pilferage caused in the goods that are transported through whether conditions, strikes, riots, political and other disturbances, such as fire, explosions, theft, accident, etc., but all reasonable precautions are taken against such contingencies.” 6. While relying upon the said condition the defendant pleaded that the transportation is at the owners risk and therefore the consignor cannot sue the defendant. While relying upon the said condition the defendant pleaded that the transportation is at the owners risk and therefore the consignor cannot sue the defendant. The defendant further contended that there is no negligence or carelessness on the part of the defendant or its employees and various averments get out in paragraphs 5, 6, 7, 8, 9 and 10 of the plaint were denied. 7. The defendant specifically pleaded that the damage caused to the consignment is due to act of God. According to the defendant the roads were flooded due to unexpected and unprecedented heavy downpour and water had sopped underneath floor of the lorry and the defendant is not bound to comply with the unjust demand of the plaintiffs on the damage if any caused to the consignment being an act of God the defendant is exonerated of its liability. 8. On the said pleadings the Court below framed the following three issues: (1) Whether the plaintiffs are entitled to damagese If so, what is the quantum. “(a) (2) Whether the plaintiffs are entitled to intereste If so, at what rate. “(a) (3) To what relief. 9. The plaintiffs marked Exs.A-1 to A-10 while the defendant marked Exs.B-1 and B-2. The plaintiff had examined one G. Venugopal, a tea-maker an employee of the first plaintiff tea estate. The defendant examined D.Ws.1 and 2, lorry drivers of the respective lorries. 10. On the first issue the learned trial Judge held that while accepting the evidence of D.Ws.1 and 2 rendered a finding that neither the defendant nor its employees are guilty of negligence, nor it could be held that there was want of due care and that the heavy down-pour on the particular date flooding the area being an act of God for which the defendant cannot be made liable. In the light of the said finding rendered by the learned trail Judge the suit claim was dismissed. The learned trail Judge answered the remaining two issues against the plaintiff. 11. In the present appeal the learned counsel for the appellants vehemently contended that the burden of proof is on the defendant and entrustment alone in sufficient to cast liability on the defendant. The learned counsel for the appellants draw the attention of the Court to the provisions of the Carriers Act and contended that the onus is on the defendant, which the defendant had miserably failed to discharge. The learned counsel for the appellants draw the attention of the Court to the provisions of the Carriers Act and contended that the onus is on the defendant, which the defendant had miserably failed to discharge. It is also contended by the counsel for the appellants that the plea of act of God has not been established by the defendant and in any event the heavy rain the month of November cannot be held to be an act of God as the defendant should have anticipated rains during the monsoon season and should have taken due care. The points that arises for consideration in this appeal are: (i) Whether the defendant could avoid the liability for the damages caused to the consignment as one caused by act of God. (ii) Whether the defendants and its employees were negligent and failed to take due care. (iii) To what relief, if any. 12. The learned trial Judge non-suited the plaintiffs on the sole ground that neither the defendant, nor its employees were negligent and that the damages was caused by act of God and the transportation of the consignment being at “owners risk”, the defendant is not liable to make good the loss. The learned trial Judge not only accepted the evidence of D.Ws.1 and 2 in this report, but also took note of the admission of P.W.1 and arrived at the conclusion that it is act of God which has caused the damages. The trial Court further recorded a finding that on the particular day, when the consignment was moved from the first plaintiffs estate to Cochin on the way there was unprecedented rains and it was a downpour, as a result of which the National Highway between Angamali and Cochin was heavily flooded with and the road submerged due to sudden flooding, that the lorry could not be proceeded, nor it could be taken back as there were 100 of lorries on either side of the lorries water logged and that this has resulted in flooding of bottom portion of the lorries leading to seepage of water. 13. D.Ws.1 and 2 spoke that they have covered the consignment with three good tarpaulins and no water had entered from the top of the lorry. They also deposed to that no one had removed the tarpaulins nor any water had sopped through the tarpaulins. 13. D.Ws.1 and 2 spoke that they have covered the consignment with three good tarpaulins and no water had entered from the top of the lorry. They also deposed to that no one had removed the tarpaulins nor any water had sopped through the tarpaulins. The Lorry Driver could not proceed further as the road was immersed by sudden flooding of heavy rain water and the lorry had to be stopped on the road which was flooded. It is admitted that under Exs.B-1 and B-2 cover not the consignments were agreed to be transported at “owners risk”. The contents of Exs.B-1 and B-2 are not disputed and the stipulation that the goods are transported at the owners risk is also not in dispute. 14. The learned trial Judge referred to the evident of P.W.1 and accepted the evidence of D.Ws.1 and 2. It would be useful to refer to the answer elicited during the cross examination of D.W.1 and the said answer is fatal to the plaintiffs case. P.W.1 in his cross examination had deposed thus: 15. D.W.1 who had deposed about the packing, covering of the lorry with three were standard in view of the sudden floods including the defendants who lorries and he had also spoken about, the heavy down pour and the flooding of the Highway and the vehicles could not be proceeded due to heavy rain on the particular trip. In the cross examination, the plaintiff had elicited the following answers from D.W.1. 16. D.W.2 in his chief Examination had deposed that due to sudden downpour the vehicles had to be stopped for three hours on the main road and the water level crossed the road was over and above the tyre level and up to the platform of the lorry body. It was further deposed that there has been heavy and unprecedented rain on the particular date. In the cross examination of D.W.2 the plaintiffs have elicited the following answer which is fatal. These answers elicited by the plaintiff from D.Ws.1 and 2 during cross examination and the admission of P.W.1 are fatal to plaintiffs case. 17. On a consideration of the entire evidence, there is no escape except to accept the findings rendered by the learned trail judge. These answers elicited by the plaintiff from D.Ws.1 and 2 during cross examination and the admission of P.W.1 are fatal to plaintiffs case. 17. On a consideration of the entire evidence, there is no escape except to accept the findings rendered by the learned trail judge. The admission of P.W.1 would show that there was no negligence and that there was heavy rain and he could not controvert the suggestion made to him. The evidence of D.W.1 one of the lorry driver who drove the lorry on the particular date would show that there is no negligence or want of care and it is an act of God and because of the sudden downpour, the main road was flooded which rose up to the level of the lorry platform or bottom of the body and hundreds of lorries including that of the defendant were stranded and they could not retrieve back the vehicles immediately. It is also in evidence that water did not seep into the lorry from the top through the tarpaulins or through the side of the body, but due to the sudden water logging and flooding had reached the level of the bottom of the body leading to seepage which no one could have anticipated while on Highway. Further lorries could neither proceed further nor they could turn back, which is certainly an act of God. 18. In the light of the above evidence the findings of fact recovered by the Court deserves to be sustained by this Court. The only question arise for consideration is whether the defendant who has transported the consignment at the owners risk is still liable to compensate the loss caused to the plaintiff. Though the counsel for appellants contended that there is no act of God, the said contention cannot be sustained at all in the light of the overwhelming evidence which found favour with the trail Court and this Court has not reason to interfere with the said findings in the light of the evidence extracted above. The defendant had not only substantiated the plea of Act of God but also established that there is no negligence or want of due care on his part or his employment. 19. The learned counsel for the appellants relied upon the decision of the Apex Court in Patel Roadways Ltd. v. Birla Yamaha Ltd. J.T. (2000)3 S.C. 618 Nath Bros. The defendant had not only substantiated the plea of Act of God but also established that there is no negligence or want of due care on his part or his employment. 19. The learned counsel for the appellants relied upon the decision of the Apex Court in Patel Roadways Ltd. v. Birla Yamaha Ltd. J.T. (2000)3 S.C. 618 Nath Bros. Exim International Ltd. as well as two decisions of this Court in Kalesami v. Ponnuswami Mudaliarand Kalesami v. Ponnuswami Mudaliarand Kalesami v. Ponnuswami Mudaliarand A.I.R. 1962 Mad. 44 and Indian Airlines Corporation in support of his contention. The above decisions in my considered view far from supporting the appellants, is against the appellants. 20. Once it is established that the damage has been caused by an act of God and the defendant had established that there has been no negligence or want of due care, it follows that the defendant is exonerated of its liability. It will not be necessary to refer to the earlier pronouncements of this Court in Kalesami Nadar v. Ponnuswami Mudaliar Kalesami Nadar v. Ponnuswami Mudaliar Kalesami Nadar v. Ponnuswami Mudaliar A.I.R. 1962 Mad. 44 and Indian Airlines Corporation v. Jothaji Maniram Indian Airlines Corporation v. Jothaji Maniram Indian Airlines Corporation v. Jothaji Maniram (1959)2 MLJ. 373 : A.I.R. 1959 Mad. 285 in support of his contention, in view of the two recent pronouncements of the Apex Court in Patel Roadways Ltd. v. Birla Yamaha Ltd. J.T. (2000)3 S.C. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. J.T. (2000)3 S.C. 433. Though the two cases arose out of the proceedings before the Consumer Forum, their Lordships of the Apex Court had considered the scope of the provisions of the Carriers Act, 1865 and decided the legal question as to the extend of liability of carrier. 21. Exim International Ltd. v. Best Roadways Ltd. J.T. (2000)3 S.C. 433. Though the two cases arose out of the proceedings before the Consumer Forum, their Lordships of the Apex Court had considered the scope of the provisions of the Carriers Act, 1865 and decided the legal question as to the extend of liability of carrier. 21. In Patel Roadways Limited v. Birla Yamaha Ltd. Patel Roadways Limited v. Birla Yamaha Ltd. Patel Roadways Limited v. Birla Yamaha Ltd. J.T. (2000)3 S.C. 618 their Lordships of the Apex Court after considering the statutory provisions of the Carriers Act in particular Sec.9 and while considering the liability of common carrier for loss of or damage to goods held thus: “Para 31: Coming to the question of liability of common carrier for loss of or damage to goods, the position of law has to be taken as fairly well settled that the liability of a carrier in India, as in England, is more extensive and the liability is that of an insurer. The absolute liability of the carrier is subject to two exceptions; on act of God and a special contract which the carrier may choose to enter with the customer. xxx xxx xxx xxx xxx xxx xxx xxx Para 47: From the conspectus of views taken in the decisions of different High Court noted shown it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Sec.9, in which it is specifically laid down that in a case of claim of damage for lose to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field for over a considerable length of time and have been crystallised into accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore we reiterate the position of law noticed above.” 22. In Nath Bros. These principles have held the field for over a considerable length of time and have been crystallised into accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore we reiterate the position of law noticed above.” 22. In Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. J.T. (2000)3 S.C. 433. Saghir Ahmad, J. speaking for the Bench while considering the scope of Sec.9 of the Carriers Act and after analysing the entire case law on the subject including the Division Bench judgment of this Court in Kalesami Nadar v. Ponnuswami Mudaliar Kalesami Nadar v. Ponnuswami Mudaliar Kalesami Nadar v. Ponnuswami Mudaliar A.I.R. 1962 Mad. 44 held thus: Para 25: We have already reproduced the provisions of Secs.6, 8 and 9 above. Sec.6 enables the common carrier to limit his liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non delivery of goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Sec.9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the King, a phrase used by the Privy Council). The Calcutta decision in The British and Foreign Marine Insurance Co. v. The Indian General Navigation and Railway Co. Ltd. 15 C.W.N. 226 the Assam decision in River Steam Navigation Ltd. and another v. Syam Sundar Tea Co. Ltd. A.I.R. 1967 Assam 79 the Rajasthan decision in Vidya Ratan v. Kota Transport Co. Ltd. A.I.R. 1965 Raj. 200 the Kerala decision in Kerala Transport Co. v. The Indian General Navigation and Railway Co. Ltd. 15 C.W.N. 226 the Assam decision in River Steam Navigation Ltd. and another v. Syam Sundar Tea Co. Ltd. A.I.R. 1967 Assam 79 the Rajasthan decision in Vidya Ratan v. Kota Transport Co. Ltd. A.I.R. 1965 Raj. 200 the Kerala decision in Kerala Transport Co. v. Kunnath Textiles 1983 K.L.T. 480 which have already been referred to above, have considered the effect of special contract within the meaning of Secs.6 and 8 of the Carriers Act, 1865 and, in our opinion, they lay down the correct law. xxxx xxxx xxxx xxxx xxxx xxxx Para 27: From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants.” 23. The Apex Court in the very same Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. J.T. (2000)3 S.C. 433 had considered the expression on” owners risk“, and transportation of goods on” owners risk “by a common carrier and in that context held thus: “Para 28: Learned counsel for the respondent contended that the goods were booked at “Owners Risk” and, therefore, if any loss was caused to the goods, may be on account of fire, which suddenly engulfed the neighbouring warehouse and spread to the godown where the goods in question were stored, the carrier would not be liable. 29. “Owners Risk” in the realm of commerce has a positive meaning. It is understood in the sense that the carrier would not be liable for damage or loss to the goods if it were not caused on account of carriers own negligence or the negligence of its servants and agents. 29. “Owners Risk” in the realm of commerce has a positive meaning. It is understood in the sense that the carrier would not be liable for damage or loss to the goods if it were not caused on account of carriers own negligence or the negligence of its servants and agents. In Burton v. English (1883) 12 Q.B. 218 and again in Wade v. Cockerline (1905)10 Com.Case. 47 it was held that in spite of the goods having been booked at owners risk, it would not absolve the carrier of its liability and it would be liable for the lease or damage to the goods during transhipment or carriage. These decisions granted absolute immunity to the carrier, but they have lost their efficiency on account of subsequent decisions in Svenasons Travarusktieboleg v. Cliffs Steamshup Co. (1931)41 Lt.L. Re. 262: Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. Exercise Shipping Co. Ltd. v. Bay Maritime Lines Ltd. (1932) 1 K.B. 490 which was considered in (1971)2 Lloyds Rep. 391 (Queens Bench Division), in which it was observed as under: “The question whether words such as” at characters risk “can operate as an exemption clause in favour of a party otherwise liable for negligence was decided by Mr.Justice Write (as he then was) in Svenasons Travarusktieboleg v. Cliffs Steamshup Co. (1931)41 Lt.L. Re. 262: West Steamship Co v. Hossain Brothers West Steamship Co v. Hossain Brothers West Steamship Co v. Hossain Brothers (1932) 1 K.B. 490. He considered the authorities in detail and concluded: It is quite clear, in my judgment, in the authorities as they now stand, that the words” at Characters “risk”, standing alone and apart from any other exception in the charterarty, do not excuse the ship owner in the case of a loss due to the breach of warranty of seaworthiness…. I think that the words standing by themselves have also to be read as limited to losses and damages where there has been no negligence on the part of the shipowner or his servants. He went on to consider the charter-party terms in that case which also included an exceptions clause, Cl.11. He held that the clause should have its, full affect whereas if “at Characters’ risk” had included an exception of negligence, it might not have done so. He went on to consider the charter-party terms in that case which also included an exceptions clause, Cl.11. He held that the clause should have its, full affect whereas if “at Characters’ risk” had included an exception of negligence, it might not have done so. That judgment has been followed since 1932, for example in The Stranns (1937)57 Lt.L. Rep. 231: (1937)P.130 and (1968)2 Lloyds Rep. 145 (Supreme Court of Pakistan) and it has not so far as I am aware, been dissented from“. Para 30: In Mitchell v. Ibanc Mitchell v. Ibanc Mitchell v. Ibanc 44 LJQB 107: Lewis v. The Great Western Railway Company Lewis v. The Great Western Railway Company Lewis v. The Great Western Railway Company L.R. 10 Q.B. 256 it was held that” Owners Risk “only exempts the carrier from the ordinary risks of the transit and does not cover the carriers negligence or misconduct. So also, in 3 Q.B. 195 the words” Owners Risks “were held to mean,”at the risk of the owner, Minus the liability of the carrier for the misconduct of himself or servants“. Para 31: Thus the expression” at owners at risk “does not exempt a carrier from his own negligence or the negligence of his servants or agents.” 24. As the legal position has been settled by the two recent pronouncements of the Apex Court it is not necessary to refer to any other pronouncements. 25. Incidentally it was contended that the defendant carrier had not established that there was heavy downpour on the particular date of transportation and that it amounts to act of God. The counsel for the appellants has no quarrel that rain as of today does not depend upon by the act of commission or omission on the part of the human agency, it is a natural phenomena which occurs due to various natural causes or evolution. It is not the case of the counsel for the appellants that the heavy downpour had been caused by any human agency. It is not the case of the counsel for the appellants that the heavy downpour had been caused by any human agency. The evidence of P.W.1 as well as D.Ws.1 and 2 extracted above would show that there was an unprecedented downpour on the particular day in the particular road Section and as a result of which hundreds of lorries including that of the defendant were marooned and water level on the highway rose above the tyres and up to the level of platform i.e., bottom portion of the lorry and as a result of which there was seepage. 26. It is also admitted that there is no seepage of water through three tarpaulin by which the consignments were covered. Hence, it is clear that there had been no negligence on the part of the defendant or his employees who drove the two vehicles on the date of movement. The drivers also should not either proceed further or reverse back as hundreds of lorries were stranded on either direction and forced to be stationed till the water level receded. It should not be forgotten that this flash flood was on the Highway and such an incident occurred on the Highway. In the circumstances, the Court below was well justified in exonerating the defendant and accepting not only the plea of act of God on the facts of the case, but also held that the defendant has established that there was no negligence or want of due care on the part of the defendant or its employees or agents. 27. The Court below had rightly exonerated the defendant from its liability while sustaining the plea of act of God and while upon holding the plea that defendant and his employees were not negligent and they have taken due care. In the circumstances, this Court holds that no interference is called for in respect of the judgment and decree of the trial Court. 28. All the points are answered against the appellants and the appeal is dismissed, but without costs.