Avadh Behari Rohatgi, J. - (1.) This revision petition raises a point of procedure in the trial of suits. Weston Electronics Limited sent from Delhi 60 boxes of T.V. sets to Calcutta. The consignment was accepted by Nitco Roadways Pvt. Ltd. petitioner herein, for carriage for reward. On way the goods were damaged. The consignor recovered the value of.the goods from National Insurance Company Limited with whom they were insured. On subrogation the National Insurance Company Ltd. brought the suit against Nitco Roadways for the recovery of Rs. 85.00U.00 . The Roadways were sought to be made liable as carriers of goods. The Roadways pleaded that near Varanashi on 13-3-1980 the tyre of the truck burst and as a result there was a serious accident causing injury to the driver and damage to the goods. This accident, it was said, "was beyond the control and not due to any negligence or carelessness on the part of the driver of the truck."
(2.) On this plea of the Roadways, the following two preliminary issues were raised: "(2) Whether the plea of defendant that the accident had occurred beyond the control of defendant No. I and thus not liable to pay the damages is entertainable in law ? OPD (3) If issue No. 2 is held in favour of the defendant whether accident took place beyond the control of defendant ?
(3.) The trial judge treated them as preliminary issues. On these issues he returned the finding that the plea of Roadways that the damage occurred on account of accident over which they had no control as the tyre of the truck had burst "is not entertainable in law because such an accident is not due to any act of God." So he decided the first of the above issues against the Roadways and the other issue he ordered to be deleted. On the remaining issues framed by him regarding verification of plaint, quantum of damages and service of notice under section 10 of the Carriers Act he set down the case for evidence. From this order the Roadways have come in revision.;