JUDGMENT 1. This appeal is filed by the defendant in O.S. No.75/1995 on the file of he Civil Judge (Sr.Dn.) and Prl. JMFC, Ranebennur, being aggrieved by the judgment and decree dated 04.11.2003, wherein the suit filed by the respondent herein has been decreed with direction to the appellant herein to pay a sum of Rs.1,68,867/- with interest at the rate of 18% per annum from 10.09.1993 till the date of payment. 2. The material facts of the case leading up to this appeal with reference to the rank of he parties before the trial Court are as follows:- The respondent herein filed suit against the appellant herein seeking for recovery of Rs.1,68,867/- with interest at 18% per annum from 10.09.1993 till the date of payment. It is averred in the plaint that the Plaintiff is an Insurance Company and one of the subsidiaries of the General Insurance Company of India and is doing its business in General Insurance, Marine Insurance, Fire Insurance, Motor Insurance etc. The defendant is a carrier doing its business in transport having its office at Pune – Bangalore road, Ranebennur. M/S. Nath Seeds Limited (hereinafter referred to as ‘the Nath Seeds’) is a concern dealing in seeds etc., having its office at Rajarajeshwari Nagar, Ranebennur and in other places. The said Nath Seeds dispatched the consignment of 1987 bags of sunflower of NSFH-592 from Ranebennur to Aurangabad. The said consignment was booked under Lorry Receipt No.68 dated 02.07.1993 through the defendant. The defendant accepted the said consignment and issued the said lorry receipt and carried the said consignment in truck No.NSP.4695 and as per the agreement, the defendant was to give door delivery to Nath Seed’s office at Aurangabad in proper and good condition. At the time of sending the consignment, Nath Seeds insured the said consignment by taking a transit policy from the plaintiff. The plaintiff, after accepting the premium issued policy bearing No.161500/21/24/0008. The plaintiff received a letter from Nath Seeds, Aurangabad, represented by Sri V.T. Shah on 05.07.1993 stating that they had received one truck load of Sunflower of NSFH-592 from Ranebennur and out of the said consignment, about 50 gunny bags received were in damaged condition and the approximate value of the damaged sunflower was Rs.2,50,000/-. The plaintiff received a letter from Nath Seeds, Aurangabad, represented by Sri V.T. Shah on 05.07.1993 stating that they had received one truck load of Sunflower of NSFH-592 from Ranebennur and out of the said consignment, about 50 gunny bags received were in damaged condition and the approximate value of the damaged sunflower was Rs.2,50,000/-. Nath Seeds submitted the papers to the plaintiff and they have also stated that the defendant has not cared to settle the claim in spite of their demands and requests and they have submitted a claim in the prescribed form for claiming the amount from the plaintiff on the basis of the policy and they have also submitted an open delivery certificate and also details of analysis report in respect of damage caused to the seeds. After receipt of the said claim, Surveyor, namely, Sri V.S. Gandhi (PW.2), was appointed to survey the said damages. The said surveyor conducted surveys on 05.07.1993, 06.07.1993 and 10.07.1993 in the premises of Nath Seeds at Aurangabad and submitted his report on 10.08.1993 to the plaintiff assessing the damages sustained to the sunflower seeds at Rs.1,65,983/-. The plaintiff, after receipt of the survey report and after scrutiny of the documents submitted by Nath Seeds, including the letter dated 09.09.1993, settled the claim of Nath Seeds for Rs.1,64,425/- subject to its right to recover the same from the defendant. After settlement of the claim, the plaintiff informed Nath Seeds, Aurangabad, who called them to execute a subrogation and special power of attorney and voucher. Accordingly, Nath Seeds received the said amount of Rs.1,64,425/- towards full and final settlement of their claim and executed letter of subrogation dated 06.09.1993 (Ex.P2) in favour of the plaintiff and further executed a special power of attorney in favour of the plaintiff dated 06.09.1993 to recover the amount from the defendant, the carrier as the damage to sunflower seeds was caused due to the negligence of the carrier. It is averred that the plaintiff issued a notice to the defendant on 12.05.1993 and another legal notice calling upon it to pay Rs.1,64,425/-. It is averred that the plaintiff issued a notice to the defendant on 12.05.1993 and another legal notice calling upon it to pay Rs.1,64,425/-. But, the defendant did not reply to the said notices and wherefore, the suit was filed by the plaintiff for recovery of the amount, which was paid by it to Nath Seeds i.e., Rs.1,64,425/- and survey fees of Rs.4,442/- totaling to Rs.1,68,867/- with interest at 18% per annum from 10.09.1993 till the date of payment. 3. The suit was resisted by the defendant by filling written statement contending that the defendant is not a carrier within the meaning of Carriers Act, 1865 (hereinafter called ‘the Carriers Act’) and the defendant only acted as an agent by receiving commission of Rs.280/- in respect of the transaction between the owner of the Lorry and the consignor – Nath Seeds regarding the consignment of goods (187 bags of NSFH-592 sunflower seeds) from Ranebennur to Aurangabad and wherefore, it is not liable to pay the amount under the Act as claimed in the suit. It is also averred in the written statement that the owner and driver of the Lorry, in which the said sunflower seeds were transported and portion of the consignment was damaged, are liable to pay for the damages suffered by Nath Seeds. The defendant did not know about the loss suffered by Nath Seeds due to the negligence of the owner and driver of the Lorry. The averments made in the plaint were denied and it was averred that since the defendant is not a ‘carrier’ within the meaning of the Act and it has acted only as a Commission agent, it is not liable to pay the damages, which is sought to be recovered in the suit. It was also averred that receipt (Ex.D2(a)) is signed by the driver of the Lorry, which shows that transportation of goods was at the risk of the owner of the Lorry and subject to terms and conditions. 4. Having regard to the above said pleadings, the following issues were framed by the trial Court: “1. Whether plaintiff Company proves that defendant transported 187 bags of NSFH592 sunflower seeds from Ranebennur to Aurangabad on behalf of the M/s. Nath Seeds Company by way of carrier Transport agreement booked under LR No.68 dated 02.07.1993 in a truck No.MWP.4695? 2. 4. Having regard to the above said pleadings, the following issues were framed by the trial Court: “1. Whether plaintiff Company proves that defendant transported 187 bags of NSFH592 sunflower seeds from Ranebennur to Aurangabad on behalf of the M/s. Nath Seeds Company by way of carrier Transport agreement booked under LR No.68 dated 02.07.1993 in a truck No.MWP.4695? 2. Further the plaintiff Company proves that the sunflower seeds during the transit damaged to a sum of Rs.1,65,425/- due to negligently handling the consignment during the transit? 3. Whether plaintiff company is entitled to recover a sum of Rs.1,68,867/- with interest at the rate of 18% per annum from 10.09.1993 till the date of payment? 4. What decree or order?” The Trial Court framed the following Additional Issue: “Additional Issue No.1: Whether suit is time barred?” 5. The plaintiff examined the Assistant Manager of the plaintiff as PW.1 and also Mr. Vasantlal Gandhi, who conducted the survey as PW.2 and submitted his report to the complainant – Company regarding the value of the damage caused to the sunflower and got marked Exs.P1 to P30. On behalf of the defendant, Vijayanand Devagiri – owner of the defendant – M/s. Vinayaka Roadways was examined as DW.1 and he got marked Exs.D1 and D2. 6. The trial Court, after considering the contentions of the learned counsel for the parties and appreciating the oral and documentary evidence on record, by the impugned judgment and decree dated 04.11.2003, answered the above issues and additional issue No.1 as follows:- Issue No.1: in the affirmative Issue No.2: in the affirmative Issue No.3: in the affirmative Issue No.4: as per final order Additional Issue No.1: in the negative Accordingly, the trial Court decreed the suit of the plaintiff with cost directing the defendant – appellant to pay a sum of Rs.1,68,867/- with interest at 18% per annum from 10.09.1993 till the date of payment. Being aggrieved by the said judgment and decree dated 04.11.2003, the defendant has preferred this appeal. 7. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 8. Being aggrieved by the said judgment and decree dated 04.11.2003, the defendant has preferred this appeal. 7. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 8. The learned counsel appearing for the appellant has taken us through the oral and documentary evidence on record adduced by the parties before the trial Court and submitted that the material on record would clearly show that the appellant has ever acted as a carrier between the consignor – Nath Seeds and the owner of the Lorry in transporting the consignment, which is the subject matter of the suit. The appellant – defendant acted as a commission agent by receiving a commission of Rs.280/-. Freight charge for transporting the sunflower seeds was collected by the driver of the Lorry. Further, the contract was subject to the condition that transportation of goods would be at the risk of the owner of the Lorry and it is for the owner, if he so desires, to insure the consigned goods. The learned counsel submitted that Ex.D2(a) would clearly show that: it has been signed by the driver of the Lorry; commission charge is Rs.280/-; loading charge is Rs.130/- and the same would show that the appellant was a commission agent and not transporter of the goods and there are certain conditions mentioned in Ex.D2(a), which have been undertaken and signed by the owner / driver of the Lorry. The learned counsel has taken us through the definition of ‘carrier’ under the Act and submitted that the appellant can never be said to be a carrier under the Act as he has transported the goods to Nath Seeds, as a commission agent by accepting the commission of Rs.280/- and the trial Court has not properly appreciated the material on record, including the oral and documentary evidence and the conditions imposed while transporting the consignment. He further submitted that the interest awarded is also exorbitant. 9. The learned counsel appearing for the respondent – Insurance Company submitted that admittedly, the Insurance Company has settled the claim of the insured – Nath Seeds regarding the consignment, which is the subject matter of the suit. The consignor – Nath Seeds, Aurangabad, has executed letter of subrogation and power of attorney in favour of the plaintiff – respondent, for having paid the amount to the insured. The consignor – Nath Seeds, Aurangabad, has executed letter of subrogation and power of attorney in favour of the plaintiff – respondent, for having paid the amount to the insured. The contents of Ex.P3 – goods consignment note, a document which constitute contract in this case, would clearly show that it is issued by the appellant and it is signed by the representative of the appellant and also the consignor and the same does not bear the signature of the owner or driver of the Lorry. Even Ex.D2(a) is not signed by Nath Seeds and wherefore, it is not binding regarding the transaction in the suit. He also submitted that having regard to the material on record and as admittedly, the appellant was operating as roadways, the appellant would be a ‘carrier’ within the meaning of the Act and wherefore, the appellant is liable to pay damage in respect of the consigned goods notwithstanding any condition to the contrary as liability on the Carrier under Section 8 of the Act is notwithstanding anything contained under the provisions of the Act and it is non obstante. 10. In reply, the learned counsel appearing for the appellant submitted that the material on record would clearly show that the appellant is not a carrier and is only acting as an agent and not transporter of the consigned goods and interest awarded is excessive and the same may be reduced to 6%. 11. Having regard to the contentions urged, the points that arise for our determination in this appeal are:- 1. Whether the finding of the trial Court that the appellant – defendant is a ‘carrier’ within the meaning of The Carriers Act, 1865 and the appellant is liable to pay the decretal amount to the respondent herein – plaintiff is justified or calls for interference in this appeal? 2. Whether the interest awarded by the Trial Court at 18% per annum from 10.09.1993 till the date of the payment is excessive and calls for reduction in this appeal? 3. What order? We answer the above points as follows:- Point No.1: The finding of the trial Court is justified. 2. Whether the interest awarded by the Trial Court at 18% per annum from 10.09.1993 till the date of the payment is excessive and calls for reduction in this appeal? 3. What order? We answer the above points as follows:- Point No.1: The finding of the trial Court is justified. Point No.2: The interest awarded by the trial Court is excessive and the same is liable to be reduced to 6% per annum from 19.08.1995 to the date of payment and interest shall be 18% per annum from the date of cause of action i.e., 10.09.1993 to the date of suit i.e., 18.08.1995 and to that extent, the judgment and decree passed by the trial Court is liable to be modified. Point No.3: As per the final order for the following:- REASONS 12. Point No.1: We have been taken through the evidence of PW.1, who is the Assistant Manager of the plaintiff – Insurance Company, and also the evidence of PW.2 – Surveyor and they have stated in their evidence that the defendant – appellant herein was a transporter of goods. The suggestion made to PW.1 that the appellant herein was not transporting the goods as a carrier and he had only collected commission has been denied. The evidence of PW.2 would not be helpful to consider as to whether the appellant is a carrier as he has only spoken to about the survey done by him regarding the damage caused to the value of the sunflower seeds. It is clear from a perusal of the goods consignment note – Ex.P3 that the same has been issued in the name of the appellant – Shree Vinayaka Roadways, it is not stated that the appellant – Vinayaka Roadways is also doing commission agency. The said consignment note does not bear the signature of the driver or the owner of the Lorry and only bears the signature of the representative of Vinayaka Roadways and the consignor – M/s. Nath Seeds and receipt is issued for Rs.4,000/- towards freight charges. The particulars of the commission and loading charges have not been mentioned in Ex.P.3. Ex.D1(a) is copy of Ex.P.3. The particulars of the commission and loading charges have not been mentioned in Ex.P.3. Ex.D1(a) is copy of Ex.P.3. There is no merit in the contention of the learned counsel appearing for the appellant that Ex.D2(a) – Driver’s memo should be treated as part of the goods consignment note – Ex.P.3 (Ex.D1(a)) as the particulars about commission of Rs.280/- and loading charges of Rs.130/- collected as per Ex.D2(a) is not mentioned in Ex.P3 and the conditions undertaken by the Lorry owner/driver have also not been included in Ex.P3 and Ex.P3 is not signed by the representative of the consignor – M/s. Nath Seeds. Further, it is clearly elicited in the cross-examination of DW.1, the representative of the defendant that there was no separate agreement between the owner of the Lorry and himself regarding transportation of goods. Therefore, the finding of the trial Court that the appellant is a Carrier as defined under the Act and has undertaken transportation of consignment of Sunflower seeds, of the consignor – Nath seeds is justified. The fact that the respondent – Insurance Company has settled the claim of Nath Seeds by making payment of Rs.1,64,425/- is proved by the evidence of PW.1 and the documents produced by him including the voucher – Ex.P27 has not been disputed. However, what is contended by the representative of the appellant – defendant mainly in the suit is that he is not a carrier, but, was only acting as a Commission agent for Nath Seeds and the owner of the Lorry. It is clear from the provisions of Section 8 of the Act that when the appellant is held to be a carrier within the meaning of the Act, it is liable for loss and damage caused by the negligence or criminal act of the carrier or any of its agents or servants. The appellant was served with the notices – Exs.P6 and P7 and wherefore, the evidence of DW.1 that he is not aware of the averments made in the survey report and the damage caused to the sunflower seeds cannot be accepted and he has accepted the evidence that he did not reply to Exs.P6 and P7. It is not disputed that open delivery was taken and thereafter, the damage was assessed. Though the appellant was served with notice, the appellant did not choose to reply the same. It is not disputed that open delivery was taken and thereafter, the damage was assessed. Though the appellant was served with notice, the appellant did not choose to reply the same. If really, the appellant was acting as an agent and not as a carrier, it would have brought the said fact to the notice of the consignor – Nath Seeds or the respondent by replying to their notice immediately and no such steps have been taken. Admittedly, no reply is given to notices Exs.P6 and P7. The fact of damage caused to 50 gunny bags of sunflower seeds out of 187 gunny bags of sunflower seeds, has been proved by the evidence of PW.2, who is a licensed surveyor as also the report submitted by him as per Ex.P8 and the photographs produced by him reporting the damage caused as per Exs.P10 to P24. Therefore, it is clear that the trial Court has rightly held that the plaintiff – respondent herein is entitled to recover the amount paid to Nath Seeds in full and final settlement of their claim regarding the damage caused to the sunflower seeds consigned through the carrier – appellant herein under Ex.P3 and we hold that the said finding is also justified and the same does not suffer from any error or illegality as to call for interference in this appeal. 13. Point No.2: This point for determination pertains to the rate of interest awarded by the trial Court. It is true that in the case of commercial contract, the rate of interest agreed to between the parties, or interest having regard to the rate prevalent should be awarded and it should not be restricted to 6%. However, so far as the award of interest after filling of the suit is concerned, it is clear that it is always the discretion of the Court to award appropriate rate of interest. Having regard to the facts of the present case, the rate of interest, which the defendant – appellant has to pay from the date of suit till the date of payment is liable to be reduced. In the present case, the suit was filed on 18.08.1995. Having regard to the facts of the present case, the rate of interest, which the defendant – appellant has to pay from the date of suit till the date of payment is liable to be reduced. In the present case, the suit was filed on 18.08.1995. The cause of action for filing the suit arose on 10.09.1993 and wherefore, we do not find any ground to interfere with the judgment of the trial Court awarding rate of interest at 18% per annum from 10.09.1993 till the date of filing of the suit i.e., 18.08.1995. Having regard to the facts of the case and the prevalent rate of interest and the time taken for adjudication of the dispute between the parties, which was not frivolous, we hold that the award of interest at 18% per annum from 19.08.1995 till the date of payment is liable to be reduced to 6% per annum. Accordingly, we hold that the plaintiff – respondent herein shall be entitled to interest on Rs.1,68,867/-at 18% per annum from 10.09.1993 till the date of filing of the suit i.e., 18.08.1995 and thereafter, at 6% per annum from 19.08.1995 till the date of payment and to that extent, the judgment and decree passed by the trial Court is liable to be modified and the judgment and decree passed by the trial Court is entitled to be confirmed in all other respects and pass the following Order:- The appeal is allowed in part. The judgment and decree passed by the Civil Judge (Sr.Dn.) and Prl. J.M.F.C., in Original Suit No.75/1995 dated 04.11.2003, awarding interest at 18% per annum from 10.09.1993 till the date of payment is modified and it is ordered that the plaintiff – respondent herein is entitled to recover Rs.1,68,867/- with interest at 18% per annum from 10.09.1993 till the date of filing of the suit i.e., 18.08.1995. The appellant – defendant shall be liable to pay interest at 6% per annum on Rs.1,68,867/- for the period from 19.08.1995 till the date of payment and the judgment and decree passed by the trial Court in all other respects is confirmed. There shall be no order as to costs in this appeal. However, disposal of the appeal would not preclude the appellant to work out its remedy against the owner of the Lorry in accordance with law.