TMI Blog1965 (5) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... chhataks of cotton valued at Rs. 1266/6/6 to the defendant company for being carried to Mangrol. This cotton was carried in a gas plant truck No. 564. Unfortunately, when the loaded truck had come near river Barod on the way it was found to have caught fire and the load was gutted. However, only 3 maunds of the cargo could be salvaged and delivered to the plaintiff. Accordingly the plaintiff demanded the value of the undelivered cotton from the defendant company, but as it did not care for the demand, the plaintiff filed the suit in the court of the Munsif, Kota. The defendant admitted the fact regarding the carriage of cotton from Kota to Mangrol by truck No. 564. It was also admitted that only 3 maunds of cotton could be delivered, but it was pleaded that the loss was caused on account of the goods catching fire and it was asserted that the defendant company was not at all liable for the same. A special plea was raised to the effect that one Dhanna Lal, who had approached the defendant company for transporting these goods, was warned by the employees of the defendant company that it was risky to take cotton in a gas plant truck, but as Dhanna Lal agreed that the goods be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1949, and that the defendant was at best a bailee under the Contract Act and was not liable for the damage in the absence of any specific contract and negligence on its part. 5. In considering the first question the learned District Judge disbelieved the plaintiff's evidence and by believing the evidence of the defendant he came to the conclusion that cotton was taken by Dhanna Lal on his own responsibility in the gas plant truck. The learned District Judge then applied himself to the consideration of the question whether Dhanna Lal could take the responsibility on his own head on behalf of the plaintiff and thus exonerate the defendant of all liabilities under the law. The learned District Judge observed in this behalf that there was nothing to show on the record that Dhanna Lal had disclosed to the defendant that the cotton was of the plaintiff or that he had no authority on behalf of the plaintiff to give such an undertaking. According to him, it was usual for businessmen to take risks in such matters and, therefore! it was likely that Dhanna Lal shouldered this responsibility. In the light of these observations the learned Judge reached the conclusion that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held responsible for the plaintiff's loss. In the result the learned District Judge set aside the decree awarded by the Munsif, Kota, and dismissed the suit. 8. We may observe that, while under the first point the learned District Judge has reached the conclusion that there was no privity of contract between the plaintiff and the defendant, under the third point the learned District Judge has held that the defendant was a common carrier, though in the present case its liability was limited by a special contract made by one Dhanna Lal. The learned District Judge does not appear to have properly appreciated the position of a common carrier. In the case of a common carrier there need not be any privity of contract between the consignee of the goods and the carrier. A consignee, who is the owner of the goods, can certainly sue the common carrier for non-delivery. 9. Before we deal with the matter further it will be appropriate to consider the question as to how far the principles governing the liability of a common carrier as contained in the Carriers Act, 1865, could be invoked in the present case, as at the time the incident happened Carriers Act had not been extended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Fatal Accidents Act (No. XIII of 1855) could be taken to be applicable in Kota so that the heir of a deceased could be held entitled to sua in respect of a tort resulting in the death of the deceased. In considering the implications of Section 21 of the Kota State Civil Courts Act, extracted above, the learned Judges observed as follows : The first Sub-section of Section 21 of the Kota State Civil Courts Act deals with questions governed by personal laws, and the second Sub-section applies generally to all other suits or proceedings which are not governed by personal laws or by any other law for the time being in force. The two Sub-sections taken together exhaust the whole range of suits. It, therefore, follows that a suit for damages for tortuous action would fall under the second Sub-section of Section 21. The Indian courts, when applying the rules of justice, equity and good conscience would be justified in applying the law of toils as it stood at the relevant time and not go back to the pre-natal period, when Lord Ellenborough held that under the Common Law of England, no one could recover damages in tort for the death of another. It would be illog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods carried may be varied by contract. If the contract is such as to obliterate or destroy his character of a common carrier, he must be regarded for the purposes of that particular contract as a private carrier, but if the contract does not so obliterate or destroy that character, and merely limits his liabilities in some respects, in all other respects he remains under a common carrier's liability. Such a contract may be express or implied from conduct, but whether it is to be implied or not is a question of fact. Exemptions by special contract to the general liability of a carrier are to be construed strictly, and are not created by the use of subtle implications or ambiguous words. In some cases such a contract must be in writing and signed by the consignor . Section 2 of the Carriers Act, 1885, defines a common carrier as a person, other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately. Section 8 deals with the question of limiting the liability of any common carrier and runs as follows : Section 6. In respect of what property liability of carrier not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be absolute and it could be excused from such delivery only, if the loss is caused by an act of God or an act of the enemies of the realm. As will be found irom the passage from Halsbury's Laws of England, quoted above, exemptions by special contract to the general liability of a carrier are to be construed strictly, and are not created by the use of subtle implications or ambiguous words. The learned District Judge has only dealt with this aspect of the matter in a most perfunctory manner. He has not taken into consideration the provisions of Section 6 of the Carriers Act at all. Besides the contract being in writing, it has to be by the owner of the goods or by a person authorised by him in this behalf. Assuming that the requirement about the contract being in writing is a technical provision, it has still to be shown that the contract was made by the owner of the goods or by a person who was authorised by him. The question, therefore, immediately arises whether Dhanna Lal was the owner of the goods or a person authorised by the owner to enter into a contract as would relieve the carrier of its liability. We have looked to the pleadings. The defendant has averred that Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bugwan-das, ILR 18 Cal 620 (PC), that the liability of a common carrier is not founded upon contract, but on the exercise of public employment for reward. The duty arises irrespective of contract, and the owner of the goods may, therefore, sue the common carrier for breach of the common law duty in an action of tort. 16. In India General Navigation and Rly. Co. Ltd. v. Dekhari Tea Co. Ltd., AIR 1924 P C 40, in construing the provisions of Section 2 of the Carriers Act their Lordships of the Privy Council observed that a common carrier was not at liberty to refuse business and his duty arose from public employment in which it was engaged. Apart from danger arising, say, from the nature of the goods received, their Lordships of the Privy Council observed, 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. 17. In Sukul Bros. v. H. K. Kavarana, AIR 1958 Cal 730, it was observed : The duties and obligations of a common carrier are governed by the English common Law as modified by the provisions of the Indian Carriers Act. By th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in respect of which the liability of the common carrier (in this case, the owner of a lorry) is not limited by a special contract, the owner of the goods (in this case, bales of cotton) in a suit against the common carrier for loss, damage, or non-delivery of articles or goods entrusted to the carrier is not required to prove negligence; the reason is that the liability of a common carrier is that of an insurer. It therefore, follows that, notwithstanding the fact that there is no negligence on the part of the common carrier, he is liable to compensate the owner of goods for the loss of the goods that occurred during the transit thereof by the lorry belonging to the carrier. The learned Judges placed reliance on Irrawaddy Flotilla Company's case, ILR 18 Cal 620 (PC). 20. It will be thus seen that there need not be any privity of contract between the owner of the goods and the carrier. It is sufficient if the carrier has accepted the goods for transit and has failed to deliver them. Thereafter to escape his liability which is normally absolute, he has to show that there was; a special contract made by the owner of the goods or his duly authorised agent, even if, for ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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