TMI Blog1970 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... at Quilon as agreed upon. The suit was therefore filed for realisation of the price of the goods and interest thereon. The defence was that while the goods were being transported to Quilon the lorry was waylaid by a jatha at a place 11/2 miles to the east of Quilon and the unruly mob which formed the jatha robbed the goods. It appears that the jatha was being taken out as a part of the food agitation and when they came across the defendant's lorry the mob attacked it and the goods were removed. The loss was therefore due to accident beyond the control of the defendant and it was therefore contended that defendant was not liable. There is, in fact, no plea that there was negligence on the part of the defendant and the circumstances also do not disclose any negligence or want of care. The circumstances which resulted in the loss of goods were not such as could have been prevented by the defendant. The question is whether defendant is liable in these circumstances. 4. The trial Court seemed to think that once it was shown that the defendant's conduct was not associated with negligence, he was not answerable. Of course, it is not disputed that there was no negligence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a particular Indian Statute has stood the test of time there is nothing wrong in adopting such statutory law as indicating rules of justice, equity and good conscience. In the present case there cannot be any difficulty at all, as, in regard to the matter with which I am concerned in this Second Appeal, there does not appear to be any difference between English Common Law and the law as applied in India, of course, excluding such areas as the erstwhile Travancore State to which the Carriers Act had not been extended. 6. The incidence of the rights and liabilities, duties and obligations of a common carrier differs materially from that of a private carrier and hence the necessity of considering whether a person is a common carrier in any particular case or is otherwise. 7. The question whether a person is a common carrier would depend upon what he professes to be. If he publicly professes to undertake for reward or hire transport of all such goods as are entrusted to him he is making a public avowal of the profession of a carrier. He may limit the class of goods which he undertakes to transport or he may limit the routes or areas over which he is to operate. But these do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Cottell. 1916 1 KB 10 has attempted to elucidate this concept quoting a passage from Macnamara's Law of Carriers by Land thus: ...I think it well to state what I understand by the term common carrier. The following definition, which I take from a well-known text-book, seems to me to be accurate: A common carrier is a person who undertakes for hire to transport from a place within the realm to a place within or without the realm the goods or money of all such persons as think fit to employ him. To render a person liable as a common carrier he must exercise the business of carrying as a public employment, and must undertake to carry Roods for all persons indiscriminately, and hold himself out either expressly or by course of conduct, as ready to engage in the transportation of goods for hire as a business, not merely as a casual occupation pro has vice. On the other hand a private carrier , which term includes every person carrying for hire who is not a common carrier, is defined to be a person whose trade is not that of conveying goods from one person or place to another, but who undertakes upon occasion to carry the goods of another and receives a reward for so doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyment in which they are engaged. Apart from danger arising, say from the nature of the goods received, the carrier is by his office bound to transport the goods as clearly as if there had been a special contract which purported so to bind him, and he is answerable to the owner for safe and sound delivery. 10. The defendant before me is admittedly operating a lorry service, transporting goods of others from place to place. Such transport in respect of each vehicle can be only with the authority of a permit obtained under the Motor Vehicles Act, 4 of 1939. An owner of a transport vehicle other than a public carrier who uses the vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business, not being a business of Providing transport, is a private carrier. Section 2(23) defines a 'public carrier as under: 2 (23) 'Public carrier, means an owner of a transport vehicle who transports or undertakes to transport goods or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic carrier. This question has been considered in a decision in the Bombay High Court in Hussainbhai v. Motilal, (AIR 1963 Bom 208). Considering the provisions of the Motor Vehicles Act, it was held therein that a public carrier is a common carrier. I am in respectful agreement with that view. The liability of the defendant is therefore that of a common carrier. 11. A common carrier is not a mere bailee of goods entrusted to him. He is an insurer of goods. He is answerable for the loss of goods even when such loss is caused not by either negligence or want of care on his part, act of God and of King's enemies excepted. This arises because responsibility attached to the public nature of the business carried on by him. He holds out as a person who has the expertise and the facilities to conduct the business of transport; consequently he is treated as an insurer of the goods and is answerable for its loss. This concept as to the liability of a common carrier has been applied in India uniformly. The rule of the Roman law as to the liability of a carrier is different. It does not conceive of an absolute liability as in the English Common Law and the rule of the Roman Law has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 210 that is cited in support of these passages. What was found by Bailhache, J. in that case was that on the facts of that case the defendant was not shown to be a common carrier. The learned Judge said in conclusion: After all the question is one of fact, and I am not sure that this elaborate discussion of textbooks and cases and questions and answers is very useful. I do not think that the scope of liability of a common carrier engaged in road transport is in any way different from that of other common carriers by land. 14. There is no case that the defendant entered into any special con tract with the plaintiff negativing liability in the event of loss being caused due to causes occasioned by events beyond his control. The only exception to such absolute liability is the event of loss caused by act of God or King's enemies. It is finally urged before me by learned counsel for the defendant, that the exception applies to the case before me as, according to counsel, any event beyond the control of the defendant, any circumstance not of his creation, must be taken to be an inevitable accident, and that according to him, is synonymous with what is 'generally unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated. The mere fact that a phenomenon has happened once, when it does not carry with it or import any probability of a recurrence (when, in other words, if does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must, however, be something overwhelming and not merely an ordinary accidental circumstance, and it must not arise from the act of man. I see nothing in the decision in Chidambarakrishna lyer Nataraja lyer v. South Indian Rly. Co. (21 TLJ 1) to which my attention has been drawn by learned counsel for the defendant to warrant the view that even when the accidents are purely the result of acts of human agency, it should be taken to be acts of God. 16. The criminal activities of the unruly mob which robbed the goods transported in the defendant's lorry can-not certainly be an act of God so as to absolve the defendant from the rule of absolute liability as a common carrier. Hence the defendant will be answerable for the loss of the goods. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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