JUDGMENT Though the matter is listed for admission, with the consent of the counsel appearing for the parties, the appeal is heard on merits: 1. The appellant who was the defendant in O.S.No.5221/2000, on the file of the VIIth Additional City Civil Judge, Bangalore, is questioning the legality and correctness of the judgment and decree passed by the court below on 18.12.2010, in the present appeal: 2. The facts leading to this appeal are as hereunder: For better appreciation of facts, the parties would be referred to as per their status before the court below: 3. A suit came to be filed by the New India Assurance Company Limited and MEP Electronics Private Limited for recovery of Rs.18,30,000/with interest @ 18% per annum from the date of suit till the date of payment. According to the plaint averments, the first plaintiff is a public sector undertaking carrying on the insurance business such as Motor, Marine, Fire and Miscellaneous, Insurance with its Head office at Mumbai, Divisional Office at Bangalore. The second plaintiff M/s. MEP Electronics Private Limited, is manufacturer of electronic goods having a factory at Bannerghatta Road, Bangalore. The defendant is a common carrier carrying on the transport business. 4. On 07.08.1998, M/s. Orient Marine Lines Private limited, New Delhi which is an agent of Sheith Yih Machinery Industry Company, Taiwan, dispatched a consignment consisting of Seyi Taiwan make SN1100(s) cross shaft precision power press, machine with standard accessories, to the second plaintiff. Pursuant to the order placed by the second plaintiff, the consignment was entrusted to the defendant for transportation from New Delhi to Bangalore and the consignment was accepted by the defendant under L.R.No.381, dated 07.08.1998. The defendant was required to deliver the consignment to the second plaintiff who is the consignee in a good condition at Bangalore. 5. The second plaintiff had covered the risk of non-delivery, short-delivery, dames during transit with the first plaintiff. Accordingly a policy came to be issued by the first plaintiff. The defendant while transporting the consignment from New Delhi to Bangalore, an accident occurred enroute near Dhar, Madhya Pradesh. As a result of which the consignment was damaged. The damaged consignment was delivered to the second plaintiff at Bangalore on 18.08.1998 and the second plaintiff made a note on the lorry receipt so as to the condition of the consignment at the time of delivery. As a result of which the consignment was damaged. The damaged consignment was delivered to the second plaintiff at Bangalore on 18.08.1998 and the second plaintiff made a note on the lorry receipt so as to the condition of the consignment at the time of delivery. After taking delivery of the consignment, since damage was caused to the machineries, a spot survey was conducted at the place of accident, by the first plaintiff through a surveyor by name Sri.S.G.Mehta, who is an independent surveyor having his office at Indore and later the first plaintiff also appointed a surveyor by name Sri.G.Chakrapani Rao, who also submitted a report assessing the damage at Rs.18,30,000/. The first plaintiff paid a sum of Rs.18,30,000/to the second plaintiff by honouring the claim made by the second plaintiff in terms of the policy. 6. On settlement of the claim by the first plaintiff, the second plaintiff subrogated its rights in favour of the first plaintiff. Based on the same, a suit came to be filed by the plaintiffs calling upon the defendant to pay a sum of Rs.18,30,000/with interest @ 18% per annum. After exchange of notice, the defendant contested the suit. The defendant admitted the delivery of consignment for transportation from New Delhi to Bangalore and further admitted that the consignment was required to be delivered to the second plaintiff at Bangalore. According to the defendant, the consignment was entrusted for transportation from New Delhi to Bangalore, at the risk of the second plaintiff and that there cannot be any liability if any damage is caused to the consignment. It is contended that the damage has been caused to the consignment due to the act of god. 7. It is contended that a road accident occurred and therefore the question of placing the burden on the defendant for loss of damages does not arise at all. It was also denied that the first defendant is not liable to make good the loss to the plaintiff and as it is only due to road accident. It was further contended that the Court of Bangalore has no territorial jurisdiction to entertain the suit and further contended that as per the terms and conditions of the L.R., the Court of New Delhi alone has got jurisdiction to entertain the suit. It was further contended that the Court of Bangalore has no territorial jurisdiction to entertain the suit and further contended that as per the terms and conditions of the L.R., the Court of New Delhi alone has got jurisdiction to entertain the suit. It was further contended that survey reports conducted one at the spot of the accident and another at Bangalore are quite contradictory and based on the same, the suit filed by the plaintiff is not maintainable. 8. Based on the above pleadings, the following issues were framed by the court below: “1. Whether this court has no territorial jurisdiction? 2. Whether the suit is undervalued and court fee is insufficient? 3. Whether defendant proves that transporter is not responsible for breakage and leakage, as goods are booked “at owners risk,” as contended in para16 of the written statement? 4. Whether defendant proves that due to road accident, the damage has been caused, as contended in para11 of the written statement? 5. Whether plaintiffs prove that 2nd plaintiff informed about this road accident, immediately, to 1st plaintiff, and lodged monetary claim, in terms of policy? 6. Whether plaintiffs prove that damages were assessed at Rs.18,30,000/and full IInd and final settlement, same was paid to plaintiff? 7. Whether plaintiffs prove that, 2nd plaintiff has subrogated to the 1st plaintiff of its right of recovery? 8. Whether plaintiffs prove that defendant is liable to pay damages, for damaged consignment, due to carlessness and negligence of the defendant (carrier)? 9. Whether plaintiffs prove service of demand notice, in writing, to the defendant? 10. Whether plaintiffs are entitled recovery of Rs.18,30,000/as damages with interest at 18% p.a? 11. What decree or order? 12. What decree or order?” 9. In order to prove their respective contentions on part of the plaintiffs, two witnesses were examined. PW1, Seshadri who is working as an Assistant Manager in New India Assurance Company, Bangalore was examined and as PW2 one Chakrapani Rao, the surveyor and loss assessor was examined. The plaintiffs relied upon Exhibits–P1 and P18. On behalf of the defendant, one Rawat alone was examined as DW1 and in support of the defendants, no documents were relied upon. 10. The trial court after appreciating the evidence letin by the parties held issue nos.1 to 4 in negative and issue nos. The plaintiffs relied upon Exhibits–P1 and P18. On behalf of the defendant, one Rawat alone was examined as DW1 and in support of the defendants, no documents were relied upon. 10. The trial court after appreciating the evidence letin by the parties held issue nos.1 to 4 in negative and issue nos. 5 to 9 in affirmative and issue no.10 partly in affirmative and ultimately the suit of the plaintiff came to be decreed for a sum of Rs.18,13,000/with full court cost and future interest has been awarded at 6% per annum, instead of 18% per annum as claimed by the plaintiff. This judgment and decree of the trial court is called in question in this appeal. 11. The learned counsel appearing for the appellant has raised the following three grounds. i) According to him, the suit filed by the respondent defendants before the City Civil Court, Bangalore was without jurisdiction, since no cause of action has arose within the jurisdiction of Bangalore city. ii) It was further contended that the suit filed by the respondent was not maintainable in view of non-issuance of notice under Section 10 of the Carrier Act, 1865 and, iii) Lastly, he contends that since the accident occurred due to the act of god, the liability cannot be fastened on the appellant and in view of the divergent report of the surveyors the trial court was required to dismiss the suit? 12. Per contra, the learned counsel for the respondent contends that all the three grounds urged by the appellant are not tenable because, as per the terms and conditions of the delivery note, the consignment was required to be delivered at Bangalore and actually damaged consignment was delivered to the second plaintiff in Bangalore. When the second plaintiff has received the consignment in Bangalore in a damaged state, the court of Bangalore has the territorial jurisdiction to entertain the suit, since major part of the cause of action has arisen within the city of the Bangalore. When the second plaintiff has received the consignment in Bangalore in a damaged state, the court of Bangalore has the territorial jurisdiction to entertain the suit, since major part of the cause of action has arisen within the city of the Bangalore. He further contends so far as issuance of notice is required under Section 10 of the Carrier Act, 1985, ExhibitsP13 and P14 are produced by the plaintiffs; which were notices got issued by the plaintiff at an undisputed point of time calling upon the appellant to made good all the loss of the consignment and having received the receipt of the said letter, the defendant having failed to send any reply they are estopped of contending that there is no notice under Section 10 of the Carrier Act. He further submits that issuance of notice is not required under Section 10 of the Act, as also it has been mentioned in Exhibit P18, which is a legal notice got issued by the first plaintiff to the defendant wherein it is categorically mentioned about the issuance of the notice under Section 10 of the Carrier Act and the acknowledgement made by the defendant. According to him, the defendant having received Exhibit P18, the legal notice, has not even sent a reply. Therefore, he contends that the contention urged by the defendant cannot be considered by this court and liable to be rejected. 13. So far as the last point is concerned. According to him, the damage occurred due to the accident caused by the truck driver. If a driver was negligent in driving and on account of the same if the consignment has been damaged, the appellant cannot contend that it has to be construed as an act of god. He further submitted that the contention of the appellant that the accident occurred due to force majeure as not been raised by the appellant, in the court below and for the first time such a contention is raised. He further contends that since it is only an accident caused by the driver due to his negligence, it cannot be contended by the defendant that the accident occurred due to force majeure. He further contends that even to accept such a contention raised by the appellant counsel, for the reason best known to the appellant, the appellant failed to examine the driver, who was responsible for causing the accident. 14. He further contends that even to accept such a contention raised by the appellant counsel, for the reason best known to the appellant, the appellant failed to examine the driver, who was responsible for causing the accident. 14. He further submits merely because there is discrepancy between the two survey reports in regard to the cause of accident cannot be a ground to negate the claim of the claimants. Merely because the first surveyor has said that the accident has occurred due to heavy rains cannot be a ground to hold that there is a variation between the reports of the two surveyors. He further submits that the second surveyor was appointed at Bangalore to assess the damage caused to the consignment, after the delivery of the consignment to the second plaintiff by the defendant. Therefore, the second surveyor could not have stated in his report the cause for the accident. In the circumstances, the contention of the appellants counsel that there is a difference between the two reports in regard to the cause of the accident cannot be considered or looked into by this Court. In the circumstances, he requests the Court to dismiss the appeal. 15. Having heard the learned counsel appearing for both the parties, the following points arise for consideration in this appeal: i) Whether the court at Bangalore has jurisdiction to entertain this appeal and whether any part of cause of action has raised within jurisdiction of Bangalore? ii) Whether the suit was maintainable and; whether the plaintiff has proved that before institution of suit, notice under Section 10 of the Carrier Act, was got issued to the defendant? iii) Whether the accident occurred due to force majeure and on account of the same, the appellant is not liable to pay the damages as claimed by the plaintiffs? iv) Whether the judgment and decree of the trial Court requires to be interfered with? 16. So far as point no.1 is concerned, it is admitted by both the parties that the consignment were entrusted to the defendant at Delhi with a clear understanding that the consignment shall safely be delivered to the second plaintiff at Bangalore. In the lorry receipt, at ExhibitP3, it is printed that a suit shall be filed only if any dispute shall be within the jurisdiction of Delhi. In the lorry receipt, at ExhibitP3, it is printed that a suit shall be filed only if any dispute shall be within the jurisdiction of Delhi. Long back, the Hon’ble Apex Court has held in many cases that by agreement, the parties cannot confer upon the jurisdiction of the Court. Therefore, the contention of the appellant that the plaintiffs were required to file the suit within the jurisdiction of the Delhi court has to be negated. Then we have to consider whether any portion of the cause of action has arisen within the jurisdiction of the Bangalore city. So far as this point is concerned, as per the terms and conditions of the lorry receipt, the consignment was to be delivered to the second plaintiff at Bangalore. Admittedly, the consignment has been delivered to the second plaintiff in Bangalore. When the consignment has been delivered to the second plaintiff in Bangalore, it goes without saying that the cause of action has arisen within the territorial jurisdiction of Bangalore. In the circumstances, the first point has to be answered against the appellant. 17. So far as the second point is concerned, the receipt of Exhibit P13 and P14 is not disputed by the appellant. Exhibit P13 is a letter dated 11.08.1998 addressed by the second plaintiff to the defendant stating that he has received a FAX message from its agent M/s.Gordon Woodroffee Limited, New Delhi, that the truck carrying their consignment was overturned at about 9.00 a.m. on 11.08.1998 near Dhar, Chunghi, Indore, Madhya Pradesh and that the accident has happened due to the negligence of the defendant driver and called upon the defendant to issue a damage certificate. In the letter as per ExhibitP14, dated 27.08.1998 is addressed to the defendant reserving right to claim loss of Rs.24,00,000/and demanded the defendant to issue a damage certificate. Exhibit – P15 and 16 are the acknowledgement for having served the notice as per ExhibitP3 and 14. At Exhibit P13, the second plaintiff has stated that the said letter may be treated as a notice as required under Section 10 of the Carrier acts. Though Exhibit P13 and P14 are received by the defendant, the defendant has failed to send any reply. At Exhibit P13, the second plaintiff has stated that the said letter may be treated as a notice as required under Section 10 of the Carrier acts. Though Exhibit P13 and P14 are received by the defendant, the defendant has failed to send any reply. When the plaintiff has produced the acknowledgement for having served notice as per ExhibitP15 and P16, when in Exhibit P13 it is clearly mentioned that the said letter shall be treated as notice under Section 10 of the Act, now it not open for the defendant to contend that no notice has been issued as required under Carrier Act. 18. In addition to the issuance of the letter as per Exhibit P13 and P14, the plaintiffs have got issued a legal notice as per Exhibit P18 calling upon the defendant to make good the loss of Rs.18,30,000/with interest @ 24% per annum. Even in the legal notice they have mentioned about the issuance of the letter as per Exhibit P13 and 14. The defendant who has received Exhibit P18 has not even sent any reply to Exhibit P18. Having not sent any reply to Exhibit P18, it is not open for the defendant to contend that there is no notice as contemplated under Seciton10 of the Carrier Act. 19. The learned Trial Judge after considering the cumulative effect of Exhibit P13, P14 and P18 has rightly come to the conclusion that there is compliance of the Act and the contention of the defendant that there is no notice issued at the instance of the plaintiffs before filing the suit under Section 10 of the Act as been rightly negated. Accordingly, we hold that the trial court was justified in holding that there is compliance for having issued notice as contemplated under Section 10 of the Act. 20. So far as the last point is concerned, we are of the view that there are no divergent findings in the survey reports. The first survey has been conducted by a surveyor, at Indore by visiting the spot of accident Based on the same, he has sent a report stating that as on the date of the accident, it was raining heavily. The first survey has been conducted by a surveyor, at Indore by visiting the spot of accident Based on the same, he has sent a report stating that as on the date of the accident, it was raining heavily. The second surveyor who has been examined as PW2 has also submitted the report assessing the damage caused to the consignment by looking into the consignment at Bangalore and therefore the second surveyor was not expected to say under what circumstances, the accident has occurred. In the circumstances, the contention of the plaintiffs that there is difference between the two reports of the surveyor cannot be accepted. 21. Similarly, the contention of the appellant that the accident occurred due to force majeure also cannot be considered because the damage is caused due to the accident by the driver. DW1 is one of the Director of the appellant company. He was not in the spot of the accident. In addition to that the driver has not been examined. During the course of arguments, the learned counsel for the appellant contends that the accident occurred due to the pothole in the National Highway and it was not anticipated by the driver that there would be potholes on the National Highway. The same cannot be considered as an act of force majeure. It is not an act of god, beyond man’s control. At best, it can be held that the National Highway Authorities have failed to maintain the road as per the norms. If the accident has occurred on account of the potholes, it was for the defendant to raise such a contention in the written statement and the defendant was also required to examine the driver. In the absence of the pleadings and evidence, no court can hold that the accident has occurred due to act of force majeure. Accordingly, the said point is also held against the appellant. 22. Viewed from any angle, we do not see any merit in the appeal. In the result, the appeal is dismissed. The parties to bear their own costs.