JUDGMENT : (Tirumala Devi Eada, J.) This is an appeal filed by the appellants being aggrieved by the judgment and decree, dated 14.08.2006, passed in O.S.No.177 of 1999 by the learned I Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”). 2. The appellants herein are the plaintiffs and the respondent herein is the defendant before the trial Court and the parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity. 3. The case of the plaintiffs before the trial Court is that the plaintiff No.1 is National Insurance Company Ltd., which is into the business of General Insurance and plaintiff No.2 is engaged in the manufacture of bearings, which has obtained an insurance policy from plaintiff No.1 vide policy No.150301/012/D/44/00003/R/ 95-96. The defendant is a transportation agency. The said insurance policy is obtained to cover the risk of manufactured items of the plaintiff No.2 by road. The plaintiff No.2 has entrusted 135 packets containing 21,600 pieces of bearings as per the invoice No.960581, dated 21.09.1996 which are in good condition to the defendant for the safe carriage and delivery to the TATA Iron & Steel Company Ltd., at Faridabad. The value of the said consignment is Rs.17,76,060/-. The said consignment was dispatched from Kharagpur to Faridabad by truck No.DL-1G-B0119. The said truck met with an accident enroute and fell into the river from Sone Bridge on G.T.Road near Dehri, Bihar resulting in heavy damage to consigned goods i.e. bearings, due to contact of water, sand and dirt contamination. A good number of bearings were also stolen from the accident spot. The available material were lifted from the accident spot on 24.09.1996 by the defendant and same were returned back on 30.09.1996 by another truck bearing No.WB-03A 1030 and the same reached to the defendant’s godown at Kharagpur on 03.10.1996. The defendant got assessed the loss at the scene of accident through Surveyor and loss assessor who submitted his report dated 30.09.1996. The plaintiff No.1 company has appointed the General Surveyors of India, Surveyors and Loss Assessors to assess the loss caused to the consignment and the survey was conducted in the presence of representatives of the defendant and the plaintiff No.2 at the godown of the defendant and submitted their report on 27.02.1997. The plaintiff No.1 company has appointed the General Surveyors of India, Surveyors and Loss Assessors to assess the loss caused to the consignment and the survey was conducted in the presence of representatives of the defendant and the plaintiff No.2 at the godown of the defendant and submitted their report on 27.02.1997. The plaintiff No.2 issued a notice of damage to the defendant on 02.01.1997 demanding payment of Rs.13,11,488.75 paise being the value of shortage of the bearings and damage caused to the bearings. The said notice was received by the defendant on 04.01.1997 and the defendant also issued a certificate on 30.03.1997 but refused to settle the claim stating that the consignment was booked at owner’s risk. Thus, the plaintiff No.2 approached the plaintiff No.1 and submitted the claim bill. Plaintiff No.1 being the insurer, settled the claim for Rs.11,00,053.83 paise and made payment through cheque bearing No.QQR 060 990, dated 15.04.1997 drawn on Punjab National Bank towards full and final settlement of the claim and the same was acknowledged by plaintiff No.2. While receiving the same, the plaintiff No.2 has executed a letter of subrogation and special power of attorney in favour of plaintiff No.1 on 15.04.1997 authorizing the plaintiff No.1 company to take all necessary action for recovery of the amount from the defendant. Thereafter, the plaintiff No.1 addressed many letters to the defendant informing that an amount of Rs.11,00,053/- was paid to the plaintiff No.2 under the insurance policy and thus, demanded the defendant for payment of the same. The defendant gave a reply stating that the consignment was booked at owner’s risk and as such, they are not liable to pay any amount. Thereafter, a notice under Section 10 of the Carriers Act , 1865 (for short “the Act, 1865”) was issued by plaintiff No.2. It is the case of the plaintiffs that the defendant is under obligation to pay an amount of Rs.11,00,053/- and plaintiff No.1 is entitled to receive the same as it has the letter of subrogation and special power of attorney executed by the plaintiff No.2 in its favour. The defendant has not responded to the demands made by the plaintiff no.1 and thus, the plaintiff No.1 has issued a notice on 16.06.1999 demanding the payment but in vain. Hence, the suit. 4. The defendant has not responded to the demands made by the plaintiff no.1 and thus, the plaintiff No.1 has issued a notice on 16.06.1999 demanding the payment but in vain. Hence, the suit. 4. The defendant has filed the written statement contending that the suit is not maintainable and has denied the alleged letter of subrogation and special power of attorney executed by plaintiff No.2 in favour of plaintiff No.1. It is further contended by the defendant that the letter of subrogation is a concocted document and that it is not aware about the Marine Open Policy issued by plaintiff No.1 in favour of plaintiff No.2. The defendant has admitted that it was entrusted with 135 packets of bearings by the plaintiff No.2 but the defendant denied the number of pieces. The fact of accident, the lifting of material from the scene of accident and transportation of the same by another truck to the defendant’s godown are admitted by the defendant. It is contended by the defendant saying that there was no damage to the bearings due to contact of water, and sand and dirt accumulation and that good number of bearings were not stolen at the scene of accident. It is further averred that the alleged loss caused to the consignment was never brought to the notice of the defendant. He admitted that the General Surveyor conducted survey at his godown but has denied the alleged surveyors report dated 27.02.1997. The defendant has denied the liability of payment though the plaintiff No.2 has demanded for the same. It is its contention that there is no carelessness or negligence while transporting the consignment on their part and therefore, they are not liable to pay any compensation. It is further contended that the defendant has issued a certificate on 30.03.1997 but it has never owed any responsibility of the alleged damage caused to the consignment as the accident that has occurred is an Act of God and thus, the defendant is not liable to pay any compensation. It is further contended that the defendant has issued a certificate on 30.03.1997 but it has never owed any responsibility of the alleged damage caused to the consignment as the accident that has occurred is an Act of God and thus, the defendant is not liable to pay any compensation. It is their further contention that the payment made by the plaintiff No.1 to plaintiff No.2 does not bind the defendant in any manner and that the plaintiff No.1 is bound to pay the amount as it has issued a policy and the said risk is covered by the policy but the plaintiff No.1 is not entitled for any reimbursement from the defendant as the said loss is not on account of any negligence on the part of the defendant. It has also denied to have received any notice under Section 10 of the Act, 1865. It is contended by the defendant that mere execution of document by plaintiff No.2 in favour of plaintiff No.1 does not make them entitled to recover any amount from the defendant and that the suit is liable to be dismissed. 5. Based on the above pleadings, the trial Court framed the following issues for trial: “1) Whether the suit is laid by the representative of the 1 st plaintiff is maintainable? 2) Whether alleged subrogation letter by the 2 nd plaintiff in favour of 1 st plaintiff is true, valid and binding on the defendant? 3) Whether this Court has territorial jurisdiction to entertain the case? 4) Whether the accident in question was vis major (act of God)? 5) Whether plaintiff No.2 sustained damages, as alleged? 6) Whether the defendant is liable to the suit claim? and 7) To what relief?” 6. The above issues are recasted for the purpose of brevity and clarity: “1) Whether the alleged subrogation letter by the 2 nd plaintiff in favour of 1 st plaintiff is true, valid and binding on the defendant? 2) Whether plaintiff No.2 sustained damages, as alleged? 3) Whether the defendant is liable to pay the suit claim? 4) Whether this Court has got territorial jurisdiction to entertain the suit? 5) To what relief?” 7. At the time of trial, the plaintiff No.1 got examined as PW1 and got marked Exs.A1 to A15. On behalf of the defendant, DW1 was examined and Ex.B1 to B8 were marked. 8. 4) Whether this Court has got territorial jurisdiction to entertain the suit? 5) To what relief?” 7. At the time of trial, the plaintiff No.1 got examined as PW1 and got marked Exs.A1 to A15. On behalf of the defendant, DW1 was examined and Ex.B1 to B8 were marked. 8. Based on the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said decree of dismissal, the present appeal is preferred by the plaintiffs. 9. Heard the submissions of Sri Kota Subba Rao, learned counsel for the appellants and Sri B.S.Prasad, learned counsel for the respondent. 10. The learned appellants counsel has submitted that the judgment passed by the trial Court is contrary to law and weight of evidence and that the trial Court ought to have decreed their suit. He further argued that the defendant carriers have issued Ex.A6 and thus, has accepted the loss and that the said loss is repaid by the plaintiff No.1 to plaintiff No.2 and thus, the plaintiff No.2 has executed a letter of subrogation in favour of plaintiff No.1 which entitles the plaintiffs to recover the amount from the defendant. The trial Court has failed to observe all these facts and has dismissed the suit erroneously. He further argued that the trial court has come to a wrong conclusion that the damage that has occurred by the accident is due to the Act of God. He further argued that the insurer is entitled to recover the amount even under Section 69 of the Contract Act and that even in the absence of any negligence the carrier is bound to compensate the insurer. He therefore, prayed to allow this appeal. 11. The learned respondent counsel, on the other hand, has submitted that the consignment was booked by the plaintiff No.2 and the goods were consigned at owner’s risk and that the accident that has occurred enroute to the destination is neither wanton nor willful but it is Act of God, which is not under the control of the defendant. He therefore submitted that the defendant is not liable to pay any amount to the plaintiff No.1. He further argued that the Marine Open Policy is between plaintiff No.1 and plaintiff No.2 and the payment made by plaintiff No.1 is covered under the said policy. He therefore submitted that the defendant is not liable to pay any amount to the plaintiff No.1. He further argued that the Marine Open Policy is between plaintiff No.1 and plaintiff No.2 and the payment made by plaintiff No.1 is covered under the said policy. But at the same time, it does not entitle the plaintiff No.1 to recover the said amount from the defendant, as there is no negligence on the part of the defendant in the alleged loss that has occurred to the goods while in transit. He therefore, prayed to dismiss the appeal. 12. Based on the above rival submissions, this Court frames the following points for consideration: 1) Whether the accident that occurred during the transit of goods from Kharagpur to Faridabad is due to the negligence on part of the defendant? 2) Whether the letter of subrogation issued by plaintiff No.2 in favour of plaintiff No.1 is binding on the defendant? 3) Whether the judgment and decree is sustainable in law and under the facts? 4) To what relief? 13. POINT NOS.1 AND 2: a) The admitted facts in this case are that the plaintiff No.2/TATA Iron & Steel Company Limited is a manufacturer of steel bearings, which is located at Kharagpur and that it used to consign its goods to its branch at Faridabad and it has also obtained the Marine Open Policy from plaintiff No.1 insuring its goods that are transported by road. It is also admitted that the defendant is the carrier which transported the goods of plaintiff No.2 from Kharagpur to Faridabad. The occurrence of accident also is admitted but the extent of loss caused due to the accident and the liability of the defendant to pay for the loss are disputed. It is the case of the plaintiff No.2 that it has sustained loss as the lorry containing the consignment fell into the river and the bearings came in contact with water and mud and also accumulated dirt which resulted in damage to the bearings and also that at the scene of the accident, some of the bearings were stolen and that it has estimated a loss by appointing surveyor to plaintiff No.1 company and that when a notice was issued by plaintiff no.2, the defendant has issued a certificate on 30.03.1997 but has denied its liability to pay for the same. b) A perusal of Ex.A1 reveals that it is the insurance policy issued by the National Insurance Company to cover the risk of dispatches of bearings “from 15.09.1996 to 30.09.1996 as per the insured declaration No.42 dated 02.10.1996 by road transit” and the terms of cover specify as “all risks including strike, riot and civil commotion”. Thus, it is elicited that plaintiff No.2 got its goods insured with the company of plaintiff No.1 which are to be transmitted by road. The sum insured is Rs.6,17,60,665/-. Ex.A2 refers to the consignment receipt which discloses that M/sTisco Bearing Division Kharagpur-I has booked its consignment with Gati road carrier to be delivered at Faridabad on 21.09.1996 and the committed date of delivery was on 26.09.1996. The company has intimated about the shortage of stock and damages, which occurred due to the accident to the defendant company, vide Ex.A3 and its acknowledgment is filed under Ex.A4. Ex.A5 is the reply issued by Gati Corporation Limited/the defendant regretting for not honouring the claim due to the reason that the consignment was booked at owner’s risk and it has also issued Ex.A6 showing the value of loss as assessed by the Survey report of M/s.General Surveyors of India to an extent of Rs.11,57,974/-. The plaintiff No.1 has issued a legal notice under Ex.A8 asking the defendant to make the payment of Rs.11,00,053/- being the loss of the Ball Bearings occurred in transit when it was under the control of defendant. c) The suit being filed under the Act, 1865, the plaintiffs are supposed to issue notice under Section 10 of the Act. The plaintiffs contend that they have already issued notice to the defendant. The initial notice by the plaintiff No.2 was issued on 02.01.1997 and to which the defendant has refused to settle the claim stating that the consignment was booked at owner’s risk. Subsequently, after the plaintiff No.1 has paid the compensation to plaintiff No.2 it has also issued notice to the defendant and plaintiff No.2 also has issued notice under Section 10 of the Act to the defendant. However, the defendant has denied to have received any such notice but the plaintiff has filed the proof of service under Exs.A3 and A4, the legal notice issued under Ex.A8. However, the defendant has denied to have received any such notice but the plaintiff has filed the proof of service under Exs.A3 and A4, the legal notice issued under Ex.A8. d) The letter of subrogation issued by the plaintiff No.2 in favour of plaintiff No.1 is filed under Ex.A12 and the payment to an extent of Ac.11,00,053/- made by the National Insurance Company to plaintiff No.2 is under Ex.A11. The surveyor report is also filed under Ex.A14 which shows that the loss has occasioned while in transit. e) PW1 has asserted all the above facts in his evidence. As already discussed supra, all the facts are admitted but for the extent of loss and liability of defendant. It has to be seen whether the letter of subrogation under Ex.A12 binds the defendant for making good the payment claimed by plaintiff No.1. f) The concept of Subrogation as stated under Contract Act is extracted hereunder for the sake of reference: “140.Rights of surety on payment or performance.—Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor.” g) Thus, it is the contention of the plaintiff No.1 that since the loss has occasioned while the goods were under the control of the defendant till they were conveyed to plaintiff branch at Faridabad, it is its duty to make good for the loss sustained during the transit. When the defendant has failed to honour the claim since the goods are insured with the plaintiff No.1 it has already paid the said loss to plaintiff No.2 but by virtue of subrogation it steps into the shoes of plaintiff No.2 and thus, it is entitled to make a claim against the defendant. h) PW1 asserted the said fact during his evidence in his chief examination. In his cross examination, he denied the suggestion that the accident occurred is by Act of God and that there is no negligence on the defendant’s carrier. He has stated that he cannot say whether the driver of truck drove the vehicle intentionally from the bridge to the river. He admitted that the accident was caused on account of failure of the steering system of the vehicle on the bridge. He has stated that he cannot say whether the driver of truck drove the vehicle intentionally from the bridge to the river. He admitted that the accident was caused on account of failure of the steering system of the vehicle on the bridge. It is relevant to refer to the surveyors report in this context. The surveyors report filed under Ex.A14 reveals the loss sustained due to the accident and at the same time the reason for the said loss is mentioned at column No.17 as “The damages and shortages described in the schedule have been caused due to the accident and pilferages from the accident spot as detailed in the schedule”. i) A perusal of the schedule annexed to the surveyor’s report reveals that the subject consignment of 135 packets while proceeding for the destination, Faridabad met with an accident enroute on 23.09.1996 on the Sone Bridge, T Road, Dehri and fell into Sone river bed having few feet of water, resulting in heavy damages to the bearings due to contact of water and sand/dirt contamination and that a good number of bearings reported to have been pilfered/stolen from the accident spot. Thus, there is a clear finding of the surveyor saying that the loss is due to the accident and pilferation from the accident spot. The admission of PW1 and also the surveyor’s report under Ex.A14 reveal the fact that the loss occurred due to the accident and the accident is not under the control of defendant. It is mentioned that there was a failure in the steering system and thus the driver could not control the vehicle and the accident occurred resulting in the said loss. j) DW1 who was examined on behalf of the defendant also admitted all the facts with regard to the consignment and the accident that has occurred, but has denied that a good number of bearings were stolen at the accident spot. He further stated that falling down of the truck into the river from the Sone bridge is nothing but an Act of God. He also admitted that the plaintiff No.1 has engaged Mr.S.S.Prasad as a surveyor and loss assessor. He further admitted that the certificate issued by them on 30.03.1997 under Ex.A5 and has stated that the alleged payment made by plaintiff No.1 in favour of plaintiff No.2 do not bind the defendant in any manner. He also admitted that the plaintiff No.1 has engaged Mr.S.S.Prasad as a surveyor and loss assessor. He further admitted that the certificate issued by them on 30.03.1997 under Ex.A5 and has stated that the alleged payment made by plaintiff No.1 in favour of plaintiff No.2 do not bind the defendant in any manner. He admitted the damage to the consignment amounting to Rs.11,57,974/-. In his cross examination he has stated that the short delivery is not on account of any theft and that no part of consignment was stolen at all. He admitted that as per the documents filed by them, there is a theft of part of consignment and that a part of stolen consignment is also recovered and after such recovery the amount is mentioned in Ex.A6. The documents filed by them under “B” series reveal that there was a C.C. registered, based on a complaint under Ex.B2 and the police have filed charge sheet after thorough investigation and the said charge sheet is filed under Ex.B3. As a part of investigation, they have also filed the Crime record relating to the confessional statement of the accused who have stolen the products. Thus, as per the docket order of District Court of Rohvas, dated 16.10.2004 under Ex.B8 and by other documents it is proved, that the stolen property was seized from the accused and was again released to the owner. Thus, the documents under Exs.B1 to B8 show that some of the bearings were stolen from the scene of accident and that after investigation by the police, they could recover the stolen goods. However, that is not the question before this Court. k) The case revolves around only point that whether the defendant is liable to pay the amount claimed by plaintiff No.1 which was paid by him to plaintiff No.2, honouring the policy. As far as the terms of policy under Ex.A1 are concerned plaintiff No.1 is bound to pay for the loss sustained by plaintiff No.2 as the goods that were under transit were insured with plaintiff No.1. As far as the terms of policy under Ex.A1 are concerned plaintiff No.1 is bound to pay for the loss sustained by plaintiff No.2 as the goods that were under transit were insured with plaintiff No.1. Therefore, plaintiff No.1 is under a legal obligation to pay for the loss and thus, it has honoured the claim vide Exs.A10 and A11 but it is averred by the plaintiff No.1 that by virtue of Ex.A12, the letter of subrogation, he is entitled to claim for the said amount from the defendant, while the defendant denies the same. l) It is pertinent to refer to Section 8 of the Act, 1865 and the same is extracted hereunder for the sake of reference: “8. Common carrier liable for loss or damage caused by neglect or fraud of himself or his agent. —Notwithstanding anything herein before contained, every common carrier shall be liable to the owner for loss of or damage to any property (including container, pallet or similar article of transport used to consolidate goods) delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants.” m) Thus, under the Act, 1865, if the loss has occasioned due to the negligent act of the defendant, then the defendant is liable to pay for the loss caused to the plaintiff No.2. In this case, the loss occurred due to the accident, which was not under the control of the defendant. After travelling for a considerable distance of 500 KMs, the truck has fallen into the river due to the failure of steering system, thus when the said accident is not due to the negligence of the defendant, it cannot be held responsible for the loss resulting from the accident. After travelling for a considerable distance of 500 KMs, the truck has fallen into the river due to the failure of steering system, thus when the said accident is not due to the negligence of the defendant, it cannot be held responsible for the loss resulting from the accident. The schedule annexed to Ex.A14 discloses that the FIR is reported to have been lodged with the Dehri Police Station by the driver and that it is reported that the truck jumped off from the Sone bridge due to the failure of the steering system and overturned on the river Bed. The official surveyors filed their report under Ex.A14 and the said report itself discloses that the accident occurred due to the failure of steering system which is not under the control of the defendant and thus, the defendant cannot be held to be negligent in transporting the goods from Kharagpur to Faridabad. Therefore, it is held that the accident was not due to the negligence of the defendant and the defendant is not liable to pay any amount and letter of subrogation do not bind the defendant. Point Nos.1 and 2 are answered accordingly. 14. POINT NO.3: In view of the reasoned findings arrived at point Nos.1 and 2, it is held that the judgment and decree passed by the trial Court are based on sound reasoning and the same are held to be sustainable in law and under the facts and circumstances of the case. 15. POINT NO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 14.08.2006, passed in O.S.No.177 of 1999 by the learned I Additional Chief Judge, City Civil Court, Secunderabad. No costs. Miscellaneous Applications, if any, pending in this appeal shall stand closed.