JUDGMENT : SATHISH NINAN, J. Dismissal of a suit for damages under Section 8 of the Carriers Act, 1865 is under challenge by the plaintiffs in the suit. The defendant is the 'common carrier'. The 2nd plaintiff is the consignee/assured. The 1st plaintiff is the insurance company. 2. On 28.08.1990 one M/s.Bussa Overseas and Properties Private Ltd., Bombay, consigned 132 casks of vetted malt scotch spirit to the 2nd plaintiff at Cherthala through the defendant. When the consignment reached the destination on 05.09.1990 it was found that 20 casks were leaky and there was shortage of 371.4 litres, the cost of which comes to Rs.2,32,125/-. Though demand was made to the defendant by the 2nd plaintiff, to pay damages, it was not heeded to. The consignment was insured with the 1st plaintiff who on negotiations with the 2nd plaintiff settled the claim on payment of Rs.1 lakh. A letter of subrogation and a Power of Attorney were executed by the 2nd plaintiff in favour of the 1st plaintiff. Accordingly, the suit was laid for realization of the said Rs.1 lakh with interest and costs. 3. The court below dismissed the suit on various grounds, viz., that the 2nd plaintiff who is only a consignee of the goods is not competent to sue under Section 8 of the Carriers Act; that M/s.Bussa Overseas and Properties Private Ltd., Bombay is a necessary party to the suit; that the alleged loss of the 2nd plaintiff having been settled by the 1st plaintiff/insurance company, the claim for damages does not survive and there cannot be any right of subrogation in favour of the 1st plaintiff; and, that the presumption of negligence under Section 9 of the Carriers Act, 1865, has been rebutted by the defendant. 4. Though notice in the appeal was served on the respondent/defendant, there is no appearance. 5. Heard the learned counsel for the appellants/plaintiffs. 6. Under Section 8 of the Carriers Act, 1865 (hereinafter referred to as the 'Act'), every common carrier is liable to the owner of the goods for loss or damage that has arisen consequent on the negligence of the carrier, its agents or servants. Admittedly, the 2nd plaintiff is the insured. The term "insured" implies that he is the person entitled to damages in case any loss is caused to the goods. Admittedly, the 2nd plaintiff is the insured. The term "insured" implies that he is the person entitled to damages in case any loss is caused to the goods. Therefore, it is presumed that he is the owner of the consignment unless circumstances indicate otherwise. Therefore, court below erred in holding that the 2nd plaintiff is only a consignee who has not proved ownership over the consignment, and is not competent to sue the carrier since only owner of the goods can sue under Section 8 of the Act. Apart from the same, there is candid admission in the written statement filed by the defendant, that the consignment belongs to the 2nd plaintiff. In paragraph 3 of the written statement, it is stated thus: "It is M/s. Bussa Overseas and Properties who entrusted the work of transportation of spirit concentrate in containers containing casks of spirit concentrate belonging to the 2nd plaintiff, to the defendant". In view of the above, deliberations as to the competency of the 2nd plaintiff to institute the suit as owner of the goods under Section 8 of the Act, is unwarranted. The finding of the court below regarding non-joinder of the consignor, is also thus, erroneous. 7. Coming to the finding as regards the right of subrogation of the insurer, the same is beyond the realm of any controversy. The law on the subject is so well settled that an insurer on indemnifying the assured has a right of subrogation. It is a right flowing from equity. The assured has no right to deny the equitable right of subrogation of the insurer. The right arises automatically when the insurer settles the claim under the policy. A contract of insurance is a contract of indemnity and the right of subrogation is inherent in a contract of indemnity. On settlement of the claim, the insurer steps into the shoes of the assured. The law relating to subrogation in the field of insurance has been dealt with exhaustively by a Constitutional Bench of the Apex Court in Economic Transport Organisation v. Charan Spinning Mills (P) Ltd. And another ([2010] 4 SCC 114) wherein it has been held that the law of insurance recognizes as an equitable corollary of the principle of indemnity that when the insurer has indemnified the assured, the rights and remedies of the assured against the wrongdoer stand transferred to and vested in the insurer. Therefore, the right of subrogation of the 1st plaintiff on indemnifying the 2nd plaintiff/assured, is beyond the scope of challenge. The finding of the court below to the contrary is against the well settled principles of subrogation. 8. Now the only question that remains is as to whether loss was caused on account of the negligence of the defendant. The fact that there was short delivery is not in dispute. As per Section 9 of the Act, there is a statutory presumption that loss was caused due to the negligence of the carrier. All that the plaintiff is required to show is that there has been loss or damage. Once that is proved, law presumes that the loss was caused due to the negligence of the carrier. Of course, it is a rebuttable presumption. Section 9 of the Act is not to be understood as making a carrier liable even in the absence of negligence on its part. It only provides for drawing a presumption that the loss was caused due to the negligence of the carrier. It is always open for the carrier to prove that the loss, damage or non- delivery was due to an act of God or circumstance beyond its control. In Nath Bros. Exim International Ltd. v. Best Roadways Ltd. ([2000] 4 SCC 553), the Apex Court has referred to the views expressed by various High Courts in India regarding the extent of liability of a carrier. In Konda Ram. Eswara Iyer & Sons v. Madras Bangalore Transport Co. (AIR 1964 Madras, 516) which has been referred to therein, it was held that a carrier would not be liable for loss, damage or injury caused by the act of God or is the consequence of inherent vice in the things carried or is attributable to the consignors own fault. In Patel Roadways Ltd. v. Birla Yamaha Ltd. ([2000] 4 SCC 91) the Apex Court has referred to Halsbury's Laws of England, 3rd Edn., Vol.4, pages 141- 143, which stated thus: "A common carrier is responsible for the safety of the goods entrusted to him in all events, except when loss or injury arises solely from act of God or the Queen's enemies or from the fault of the consignor, or inherent vice in the goods themselves". Thus, the presumption of negligence could be displaced by the consignor by proving that the loss or damage was caused by the act of God or that it was a consequence of the inherent vice in the things carried or it is attributable to the consignors own fault. If the defendant is able to prove any of the above, he would be absolved from the liability. The court below has held that the presumption has been rebutted by the defendant for the reason that the lorries in which the consignment was carried were accompanied by the representative of the 2nd plaintiff and also two excise officials. From the survey report, it is evident that there were signs of leakage. The court below was also swayed by the fact that the consignment was under transit for a period of four months. But, it overlooked the fact that the goods were entrusted to and was in the custody of the defendant only from 28.08.1990 to 05.09.1990. The question as to whether presumption under Section 9 of the Act has been rebutted by the defendant has not been properly considered by the court below. Not even an issue is seen raised on the same, which is a necessary finding in a suit under Section 8 of the Act. 9. In the circumstances, we deem it fit and proper that the matter be remitted to the court below for the purpose of raising and adjudicating the issue regarding rebuttal of presumption under Section 9 of the Act, by the defendant. The parties shall be permitted to adduce evidence on the same. All other issues are held in favour of the plaintiffs. The Appeal Suit is allowed as above. Court fee paid on the memorandum of appeal shall be refunded to the appellants. Since there was no appearance for the respondent/defendant before this court, the Sub Court, Cherthala shall issue notice to both parties fixing date for appearance before that court.