Judgment : The defendant in O.S.No.288 of 1990 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad, is the appellant herein. The suit was filed for recovery of Rs.1,09,401-65 Ps., 2. According to the case of the plaintiffs, a consignment of 1800 trays of "Great Shake" Soya milk was entrusted by the second plaintiff to the defendant at Mandideep for safe carriage to Bangalore and for delivery to their distributors. One carton tray of Soya milk contained 27 packs at the rate of 200 C.C. The contents of each pack is packed in tetra brik (printed laminated paper) with layer of polythene on the outside and polythene layer of aluminium foil on the inside and as such, the consignment was so sophisticatedly packed and wrapped in carton trays. The said consignment was booked by the defendant under Lorry Receipt No.19577 dated 30-9-1987. The defendant is a public or common carrier carrying goods from place to place on hire with its registered office at Secunderabad. The entire consignment so entrusted to the defendant was insured by the second plaintiff with the first plaintiff against loss, damage etc. in transit under policy No.4401060. The value of the consignment was also mentioned in the lorry receipt at Rs.1,06,533/-. Further according to the plaintiffs, the consignment reached Bangalore in a damaged condition on 06-10-1987. The consignee refused to take delivery of the consignment as the entire consignment was damaged. One of the representatives of the defendant was also present at the time of inspection of the consignment at the destination. 169 trays of Soya Milk were destroyed after mutual consent and the balance of 1631 trays of consignment was sent back at the risk of the defendant for re-examination since it was the case of the consignee that the entire consignment was in a damaged condition and cannot be used as a food consumption. The defendant brought back 1631 trays to Mandi deep for re-examination by the second plaintiff vide L.R.No.01641 dated 22.10.1987. But they were in a complete damaged condition. A survey was also made. The defendant at the request of the second plaintiff issued a damage certificate styled as "Certificate of facts" on 1-12-1987 to the effect that the total material was in a damaged condition. But they were in a complete damaged condition. A survey was also made. The defendant at the request of the second plaintiff issued a damage certificate styled as "Certificate of facts" on 1-12-1987 to the effect that the total material was in a damaged condition. But the defendant mentioned in it that the damage was caused due to packing of the materials not withstanding the jerking and jolting of the truck enroute. Further, according to the case of the plaintiffs, the defendant in order to escape the liability made the said statement of packing not withstanding the jerks and jolts. As stated earlier, packing was in a sophisticated manner. The fact that many of the packages were cut, broken, bursted, leaking and having foul smell is a clear indication that the consignment was not taken care of and the damage was caused solely due to negligent and careless handling of the consignment not only during transit but probably also at a transhipment point. The value of the consignment so damaged and lost was arrived at Rs.1,06,541-41 Ps., which was mentioned not only by the surveyor but also by the defendant in the "Certificate of facts". Further according to the plaintiffs, the second plaintiff preferred a claim for payment of damages with the defendant through letter dated 27.10.1987. The defendant did not respond to the said letter of claim not settled it. The first plaintiff as an insurer was forced to settle the claim of second plaintiff and on such settlement made at Rs.1,09,401-65 Ps., which was the final value arrived at, a letter of subrogation was executed by the second plaintiff in favour of the first plaintiff subrogating the rights of first plaintiff to take steps in realising the amount form the defendant. Hence the first plaintiff as a subrogee is also entitled to sue the defendant for recovery of damages. Further according to the plaintiffs, the damage and loss so caused was solely due to negligence, carelessness, and misconduct on the part of the defendant, its agents and employees. The liability of the defendant as a public carrier is that of an insurer and the defendant therefore is absolutely liable to pay the damages so caused and suffered by the plaintiffs. Further according to the plaintiffs, the correspondence made by the second plaintiff with the defendant on 2-1-1988 was of no avail. The defendant did not settle the claim. The liability of the defendant as a public carrier is that of an insurer and the defendant therefore is absolutely liable to pay the damages so caused and suffered by the plaintiffs. Further according to the plaintiffs, the correspondence made by the second plaintiff with the defendant on 2-1-1988 was of no avail. The defendant did not settle the claim. Hence, the plaintiffs were constrained to file the suit for recovery of a sum of Rs.1,09,401-65 Ps., from the defendant. 3. The defendant filed a written statement disputing the nature of consignment and its packing. According to the defendant, the value of the consignment mentioned in the consignment note was only on the representation made by the consignor to the consignee and recorded by the defendant carrier. It does not amount to acceptance of valuation by the carrier since there is no such practice that the Carrier would specify the value of the consignment. It was further pleaded that inspection by the carrier at the place of destination is only to record the description of the goods in a damaged condition. If they are already damaged, this will not estop as to when, where and how the goods were damaged. The sending back of the goods for re-examination is for satisfaction between the consignor and the consignee and not for the satisfaction of the carrier. The plaintiff has accepted the position that the packing material is not sophisticated even from the normal standards. This is also endorsed by signature of the 2nd plaintiff on the certificate of facts. So, the plaintiff is estopped from alleging negligence against the defendant. The very fact that it is countersigned by the second plaintiff would show that has accepted the statement without any review or any reservation. Therefore, the plaintiffs are estopped from making any contrary allegations. Admittedly, the packing was not in a sophisticated manner. It may also a fact that many of the packages were cut broken, bursted leaking and having foul smell. One of these things were stated in the said certificate of facts of which the plaintiff is a party. It may be clarified that there is no transshipment of goods in the case. With regard to the value of damages arrived, it is only version. The first plaintiff made the payment to the second plaintiff voluntarily and as such, the first plaintiff is entitled to the right of subrogation. It may be clarified that there is no transshipment of goods in the case. With regard to the value of damages arrived, it is only version. The first plaintiff made the payment to the second plaintiff voluntarily and as such, the first plaintiff is entitled to the right of subrogation. The defendant therefore, pleaded that there is no liability to pay the suit amount. 4. On the basis of the above pleadings, necessary issues have been framed for trial. After considering the evidence on record, the Court below has decreed the suit of the plaintiff, and aggrieved by the said judgment, the present appeal is preferred. 5. The points that arise for consideration are : 1. Whether there is any negligence on the part of the appellant? 2. Whether the valuation claimed by the plaintiffs is valid ? POINTS : 6. The learned counsel for the appellant strongly contends that there is no negligence on the part of the appellant and consignment was not properly packed and it was at the owner's risk. The Survey was not accepted and the survey report is not marked with consent, and consequently, the certificate of facts Ex.A-3 cannot be relied upon. The report of the surveyor is marked as Ex.A-6. 7. In order to substantiate his contention, the learned counsel for the appellants relied upon a decision of this Court in Transport Corporation of India Ltd., Secunderabad Vs., The New India Assurance Co., Ltd., and another (C.C.C.Appeal No.18 of 1996 dated 17.02.2012). In fact, in that case, the Court found that under Section 9 of the Carriers Act, 1865 the plaintiffs need not prove the negligence, and the damage or loss has to be presumed due to the negligence of the defendant or its servant. In fact, what was transported is soya milk and evidently, part of the milk has been damaged and part was returned. The fact that consignment was damaged is not in dispute. 8. The evidence of D.W.1 is about the booking of consignment. His evidence does not show whether the package was checked or not checked. There is also no dispute about the fact that the goods were in damaged condition when they reached the destination. Evidently, no documents were filed showing the market value of the goods as less than the value assessed by the Surveyor. His evidence does not show whether the package was checked or not checked. There is also no dispute about the fact that the goods were in damaged condition when they reached the destination. Evidently, no documents were filed showing the market value of the goods as less than the value assessed by the Surveyor. The defendant did not file any document to show as to what was the amount, for which the goods were booked. There is no dispute about the fact that the appellant has given certificate of facts which is Ex.A-3 dated 01-12-1987, in which it was mentioned as follows– "while effecting delivery of the subject consignment total material was in damaged condition due to the material packed in paper boxes. Since the packing of the material was not worth to withstand the jerking and jelting of truck enroute as the liquid items was packed in paper box. As per the survey report of Surveyor total cost comes to Rs.1,06,541-54 Ps." So far as this document is concerned, it is not the plea of the appellant that such a certificate was fabricated one or it was not issued by the appellant. The issuance of the certificate was not specifically denied by the appellant. On the other hand, it was only pleaded in the written statement that the certificate was issued on the representation of the plaintiffs. The written statement does not disclose that the facts mentioned therein are incorrect. In fact, there is no other evidence to show that the value of the consignment, which was mentioned by the appellant at the instance of the plaintiffs, is an act of fraud. 9. Further more, the value of the goods, which were booked under Ex.A-2, clearly goes to show that it is Rs.1,06,541-41 Ps. When the total damage of the goods is there, then it cannot be said that the report of the Surveyor is erroneous and the payment of money by the first plaintiff to the second plaintiff is excessive. In fact, in the decision of the Division Bench, which was relied on by the counsel for the appellant in Transport Corporation of India Ltd., Secunderabad Vs., The New India Assurance Co., Ltd., and another, cited supra, the valuation, which was given in the invoice, was not referred to. In fact, in the decision of the Division Bench, which was relied on by the counsel for the appellant in Transport Corporation of India Ltd., Secunderabad Vs., The New India Assurance Co., Ltd., and another, cited supra, the valuation, which was given in the invoice, was not referred to. Therefore, apart from the certificate of loss and value given by the appellant under Ex.A-3, Ex.A-2 also clearly discloses the real value of the goods. 10. In the decision relied upon by the learned counsel for the appellant as can be seen from the para No.15, it is quite clear that the certificate shows that there was an objection with regard to survey and also the estimate mentioned therein. The certificate of facts is as follows – "Fact of Loss : Truck No. APR 8283 carrying above consignment met with an unfortunate accident on 29.04.1987 Peniagunta P.S. Said police stn. Registered a case No.49/87 dt.29.4.87. Party is New India Assurance Co. has conducted his own survey without our participation. And estimated loss is Rs.5,84,275/-". The Court was also pleased to take into consideration only the fact of damages, but not the value thereof. In this case, no reservation was expressed in the said certificate. There is lot of difference between the two certificates. 11. When the above mentioned case relied on by the learned counsel for the appellant was dealt by the Division Bench, the decision of another Division Bench of this Court in M/s.Economic Roadways Corpn., Hyd Vs., National Insurance Co., Hyd., and Anr., ( 2002(1) L.S. 128 (D.B.) was not brought to the notice of the learned Judges. In fact, in this decision, the learned Division Bench accepted the judgment of the Madras High Court in Thirupathi Venkatachalapathy Lorry Service Vs., New India Assurance Company Ltd., and followed the same whereas in the latter judgment of the Division Bench relied on by the learned counsel for the appellant, the judgment of the Madras High Court was dissented from and reliance was placed on the judgment of the Kerala High Court in Associated Transport Corporation P. Ltd., Vs., National Insurance Co. Ltd. In fact, in the latter case before the Division Bench, the plea was that the letter head was stolen and the signatures were forged. The latter Division Bench took into consideration the fact of the quantum of payment made to the second plaintiff. Ltd. In fact, in the latter case before the Division Bench, the plea was that the letter head was stolen and the signatures were forged. The latter Division Bench took into consideration the fact of the quantum of payment made to the second plaintiff. Here in this case, the appellant admitting the issuance of certificate, whereas in the judgment of the earlier Division Bench, it was pleaded as forged. In spite of it, even though the Surveyor was not examined, reliance was placed upon the judgment of the Madras High Court and the factum of payments and the non-examination of Surveyor is not a factor. 12. Therefore, in view of the above circumstances, I do not find any merits in the Appeal. 13. Accordingly, the Appeal is dismissed. No costs. Miscellaneous applications, if any, pending in this appeal shall stand closed.