JUDGMENT : Manish Pitale, J. Heard finally. 2. By this appeal, the appellant has challenged the judgment and order dated 28-01-2016 passed by the Court of Ad hoc District Judge 6, Nagpur (appellate Court) in Regular Civil Appeal No. 791 of 2012, whereby the appellate Court has allowed the appeal of the respondents (original plaintiffs) and decreed the suit filed by them. 3. In the present case, the respondent no. 1 is an insurance company which had issued insurance policy in favour of the respondent no. 2 to cover the risk of consignment of goods carried out from the factory of respondent no. 2 M/s. Superpack Bajaj Steel Industries, Bajaj Gram, Sausar, (MP) to Amorshi/Wangani, Wakan Road, Taluka Roha, District Raigad, (MS). The respondent no. 2 had approached the appellant herein for transport of 150 bales of plastic sacks/bags from his factory to M/s. Superpack Bajaj Steel Industries, Bajaj Gram, Sausar, (MP). It was the case of the respondent no. 2 that the appellant had issued a lorry receipt dated 19-04-1999 in respect of the same and that the consignment was loaded for being transported. It is an admitted position that the consignment did not reach its destination. 4. In this situation, respondent no. 2 issued a notice under Section 10 of the Carriers Act, 1865, to the appellant seeking damages for loss of goods, as the consignment did not reach its destination. On 08-02-2000, the appellant sent a reply Exhibit 32 to the said notice, stating that it had acted as a booking agent and that the transportation of the goods was actually done by another entity and that an FIR had been lodged against the said person regarding the missing consignment. Thereafter, the respondent no. 1, being the insurance company and the respondent no. 2 together filed suit for recovery being Special Civil Suit No. 605 of 2000, before the Court of Civil judge Senior Division, Nagpur (trial Court) for recovery of amount in respect of the aforesaid missing consignment. The respondents prayed for decree of Rs. 4,81,608/- against the appellant and interest at the rate of 12% per annum on the said amount. In response to the same, the appellant filed its written statement and denied the liability to pay the said amount. The respondents prayed for decree of Rs. 4,81,608/- against the appellant and interest at the rate of 12% per annum on the said amount. In response to the same, the appellant filed its written statement and denied the liability to pay the said amount. It was specifically contended that the appellant had acted only as a booking agent and M/s. Subhash Road Carrier, Nagpur, was the entity who had acted as a carrier for transportation of the consignment. In the present case, it was specifically pleaded that M/s. Subhash Road Carrier, Nagpur, was a necessary party to answer all queries in respect of loading of consignment, its transportation and its being misplaced resulting in loss to respondent no. 2. 5. On the basis of such pleadings, the trial Court framed issues and evidence was led by the parties. The trial Court framed issues pertaining to the questions as to whether the appellant was only a booking agent and M/s. Subhash Road Carrier, Nagpur, was actually the carrier in the present case and as to whether the suit was tenable in the absence of the said M/s. Subhash Road Carrier, Nagpur being joined as a party. 6. The trial Court passed its judgment and order on 13-10-2003 dismissing the suit filed by the respondent. It was found that the evidence and material on record demonstrated that the appellant was only a booking agent in the present case and that it was M/s. Subhash Road Carrier, Nagpur, which was the carrier as defined in the Carriers Act, 1865. The trial Court found that the document at Exhibit 32 which was produced by the respondent himself, demonstrated that freight charges were actually paid to the aforesaid M/s. Subhash Road Carrier, Nagpur and this also indicated that the suit filed by the respondent was not tenable in the absence of the said party. On this basis the suit filed by the respondent stood dismissed. 7. Aggrieved by the same, the respondents filed Regular Civil Appeal No. 791 of 2012, before the appellate Court. By the impugned judgment and order, the appellate Court allowed the appeal, set aside the order of the trial court and decreed the suit in favour of the respondents. The appellate Court found that the appellant herein could not have acted only as a booking agent and that there was privity of contract only between the respondent no. By the impugned judgment and order, the appellate Court allowed the appeal, set aside the order of the trial court and decreed the suit in favour of the respondents. The appellate Court found that the appellant herein could not have acted only as a booking agent and that there was privity of contract only between the respondent no. 2 and the appellant. 8. It was only the appellant who was responsible for the damages suffered by respondent no. 2. It was also found that the suit was tenable even in the absence of the aforesaid M/s. Subhash Road Carrier, Nagpur as a party. On this basis, the appellate Court decreed the suit in favour of the respondent. 9. Aggrieved by the impugned judgment and order, the appellant has filed the present appeal, wherein notice was issued on the following questions of law by an order dated 28-07-2017. "(1) In the light of the document at Exhibit 32 which was produced by the plaintiff, whether M/s. Subhash Road Carrier Nagpur was necessary party to the suit? (2) Whether the appellant could be saddled with the liability as "carrier" in view of the provision of Section 2 of the Carriers Act, 1865?" 10. Admit on the aforesaid substantial questions of law. Heard finally with the consent of Counsel for the parties. 11. Shri A.M. Adtani, learned Counsel for the appellant has submitted that the findings rendered by the appellate Court in favour of the respondents are perverse, because they are based on erroneous appreciation of the evidence and material on record. It is submitted that definition of common carrier, under the Carriage by Road Act, 2007, has been taken into consideration, which is not applicable to the present case, because the provisions of Carriers Act, 1865 are applicable. According to him, the appellant does not satisfy the definition of common carrier as given in the Carriers Act, 1865, and that in the present case it was only M/s. Subhash Road Carrier, Nagpur, who was the carrier and that the appellant was only a booking agent. On this basis, it was submitted that the appellate Court was not justified in reversing the findings of the trial Court. 12. On the other hand, Shri S.V. Jaiswal, learned Counsel for the respondent no. 1 /insurance company, has submitted that since there was privity of contract only between the respondent no. On this basis, it was submitted that the appellate Court was not justified in reversing the findings of the trial Court. 12. On the other hand, Shri S.V. Jaiswal, learned Counsel for the respondent no. 1 /insurance company, has submitted that since there was privity of contract only between the respondent no. 2 and the appellant, the appellate Court was justified in reversing the order of the trial Court and in granting decree in favour of the respondents. It was submitted that the lorry receipt dated 19-04-1999 clearly demonstrated that it was only the appellant who had entered into a contract of transportation of goods with respondent no. 2. It was submitted that the material on record demonstrated that the appellant was the carrier in the present case even under the provisions of the Carriers Act, 1865. Reliance was placed on the judgments of the Hon'ble Supreme Court in the case of Nath Bros. v. Best Roadways Ltd. and Mumbai International Airport Pvt Ltd v. Regency Convention Centre and Hotels Pvt Ltd and ors., reported at AIR 2010 SC 3109 . 13. A perusal of the pleadings in the present case and the evidence on record shows that at the first instance when the respondent no. 2 sought to raise grievance regarding compensation for damages, the appellant had clearly stated that it had acted only as a booking agent and that M/s. Subhash Road Carrier, Nagpur, had transported the goods and undertaken the responsibility of transportation of goods of respondent no. 2. Even in the written statement filed by the appellant it had taken a clear stand that it was a booking agent and that M/s. Subhash Road Carrier, Nagpur, was the carrier. It was also specifically pleaded that M/s. Subhash Road Carrier, Nagpur, was a necessary party to the suit. Despite this, no efforts were made by the respondents to add the said M/s. Subhash Road Carrier, Nagpur, as a party to the suit. 14. Oral and documentary evidence of the parties was recorded. A perusal of cross examination of witness no. 3 on behalf of respondent i.e. manager of respondent. 2 shows that respondent no. 2 was concerned with M/s. Subhash Road Carrier, Nagpur, because the consignment was sent in its lorry and further that the appellant was a booking agent. 14. Oral and documentary evidence of the parties was recorded. A perusal of cross examination of witness no. 3 on behalf of respondent i.e. manager of respondent. 2 shows that respondent no. 2 was concerned with M/s. Subhash Road Carrier, Nagpur, because the consignment was sent in its lorry and further that the appellant was a booking agent. A perusal of Exhibit 32 in this context becomes significant, particularly when the said document was produced at the behest of respondent no. 2 itself. In the said document, it is apparent that M/s. Subhash Road Carrier, Nagpur has acknowledged the receipt of advance amount towards freight charges. It is also an admitted position that the lorry in which the goods of respondent no. 2 were transported belonged to M/s. Subhash Road Carrier, Nagpur and that the goods were loaded in the factory of respondent no. 2 in the said lorry. It has come in the evidence that the appellant was undertaking such activities for commission. The trial Court has taken into consideration the oral and documentary evidence on record and concluded that the respondent no. 2 did not pay transportation charges to the appellant and that there was evidence on record to show that the charges were actually paid to M/s. Subhash Road Carrier, Nagpur. On this basis, the trial Court found that M/s. Subhash Road Carrier, Nagpur was a necessary party to the suit and that in its absence the suit was not tenable. 15. On the other hand, the appellate Court, while reversing the findings of the trial Court, has emphasised on the aspect that there was privity of contract only between the respondent no. 2 and the appellant and that M/s. Subhash Road carrier, was not directly engaged by respondent no. 2 for transportation of the goods. Although the appellate Court has referred to documentary evidence on record at Exhibit 32, it has come to the aforesaid conclusion. In the process, the appellate Court has referred the definition of common carrier as found in the Carriage by Road Act, 2007. In the said definition a goods booking Company and agent as also, broker are also, included in the definition of common carrier. 16. But, in the facts of the present case, the Carriers Act, 1865 is applicable. In the process, the appellate Court has referred the definition of common carrier as found in the Carriage by Road Act, 2007. In the said definition a goods booking Company and agent as also, broker are also, included in the definition of common carrier. 16. But, in the facts of the present case, the Carriers Act, 1865 is applicable. Section 2 of the said Act of 1865 defines Common carrier as follows: "Common carrier" - "common carrier" denotes a person, other than the Government, engaged in the business of [transporting property under multi-modal transport document or of] transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately." 17. A perusal of the aforesaid definition shows that a person who is engaged in the business of transporting property from place to place is included in the said definition of Common carrier. In the present case, the material on record shows that while lorry receipt dated 19.04.1999 was issued by the appellant, the actual transportation by lorry was undertaken by M/s. Subhash Road Carrier. As noted above, the Manager of respondent No. 2 had conceded to this fact in his cross-examination. The document at Exh. 32 also shows that the freight charges were paid to M/s. Subhash Road Carrier and that there was sufficient material on record to show that the goods from the factory of respondent No. 2 were loaded in the lorry of M/s. Subhash Road Carrier for transportation. In this situation, the appellate Court could not have come to conclusion that the suit was tenable in the absence of M/s. Subhash Road Carrier being made party to the proceedings. The appellate Court has emphasised only on the privity of contract between respondent No. 2 and the appellant, without appreciating as to whether the appellant could be said to be a "carrier" as defined under the Carriers Act, 1865, for being liable to compensate respondent No. 2 for the damages suffered by it due to loss of goods during transportation. There was sufficient material on record to show that the appellant in the facts and circumstances of the present case had played the role of Booking and Forwarding Agent and that it was M/s. Subhash Road Carrier that had undertaken the task of transportation of goods. There was sufficient material on record to show that the appellant in the facts and circumstances of the present case had played the role of Booking and Forwarding Agent and that it was M/s. Subhash Road Carrier that had undertaken the task of transportation of goods. In this situation, the said M/s. Subhash Road Carrier was indeed a necessary party, in the absence of whom the suit filed by the respondents was not tenable. 18. Reliance placed by the learned Counsel appearing on behalf of the respondents on judgment of the Hon'ble Supreme Court in the case of Nath Brothers (supra) would not come to the assistance of the respondents because the role of carrier and its responsibility is laid down in the said judgment, while in the present case, the main issue pertains to whether the appellant could be said to be carrier at all. As regards the judgment in the case of Mumbai Inernational Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. and others (supra), the Hon'ble Supreme Court has elaborated on the law pertaining to who could be a necessary and/or a proper party. The principles laid down in the said judgment when applied to the facts of the present case do show that M/s. Subhash Road Carrier in the present case was a necessary party, in the absence of whom effective decree could not have been passed in the suit for recovery filed by the respondents. 19. In the light of above, it becomes evident that both the Substantial Questions of Law framed by this Court by order dated 28.07.2017, deserve to be answered in favour of the appellant and against the respondents. Accordingly, it is held that M/s. Subhash Road Carrier, Nagpur, was a necessary party in the suit filed by the respondents in the present case and that the trial Court was justified in holding that the suit was not tenable in the absence of the said party. It is also held that in the facts and circumstances of the present case, the appellant could not be said to be a carrier under Section 2 of the Carriers Act, 1865 and that, therefore, it could not be saddled with liability for the amount claimed by the respondents. 20. It is also held that in the facts and circumstances of the present case, the appellant could not be said to be a carrier under Section 2 of the Carriers Act, 1865 and that, therefore, it could not be saddled with liability for the amount claimed by the respondents. 20. Therefore, the appeal filed by the appellant is allowed, the impugned judgment and order passed by the appellate Court is set aside and the judgment and order of the trial Court is restored. There shall be no order as to costs.