Andhra HC (Pre-Telangana)
Meet Road Lines vs United India Insurance Company And Ors. on 12 July, 2005
Equivalent citations: AIR2005AP485, AIR 2005 ANDHRA PRADESH 485
JUDGMENT P.S. Narayana, J.
1. 3rd defendant in O.S. No. 5/98 on the file of Additional District Judge, Adilabad had preferred the present Appeal. Respondents 1 and 2 herein are the plaintiffs in the suit and respondents 3 and 4 are defendants 1 and 2. The suit was filed for recovery of damages of Rs. 1,34,850/- together with costs. The learned Judge recorded the evidence of P.W.-1 and D.W.-1, marked Exs. A.-1 to A-26 and on appreciation of the evidence available on record, decreed the suit as against all the defendants. Defendants 1 and 2 had not carried the matter by way of Appeal. The 3rd defendant being aggrieved of the Judgment and decree had preferred the present Appeal.
2. Submission of Sri B. V. Ram Mohan Rao : The learned Counsel representing the appellant/3rd defendant Sri B. V. Rama Mohan Rao had argued in elaboration on the aspect of the privity of contract, the cause of action and the quantum of damages to be awarded in the light of the evidence available on record and the report of the Surveyor. The learned Counsel also had taken this Court through the different provisions of the Carriers Act 1865, hereinafter in short referred to as "Act" for the purpose of convenience, and would maintain, that in the light of Section 9 of the Act no doubt: the burden is on the carrier to prove the aspect of negligence and the effect thereof. The learned Counsel also would maintain that the legal notice is barred by limitation in view of Section 10 of the Act. The learned Counsel also pointed out to the evidence of D.W.-l and would comment that in chief-examination the damage was stated to be only to a tune of Rs. 25,000/- and there is no specific cross-examination on this aspect. The learned Counsel also would maintain that the contract is between 2nd plaintiff and defendants 1 and 2 and the 3rd defendant/ appellant herein though taken as a sub-agent, such sub-agent cannot be made liable since there is no privity of contract in between these parties. The contract, if any, is in between the 2nd plaintiff and defendants 1 and 2 only. The learned Counsel also explained that even D.W.-1 in his evidence deposed that the driver is no more and in the light of the same the driver could not be examined. The learned Counsel also had pointed out to the relevant portions of Exs. A-8 and A-13 and would submit even in the light of this correspondence it. is clear that the privity of contract is between the 2nd plaintiff and defendants 1 and 2 only. On the aspect of non-examination of Surveyor and lack of evidence on this aspect, submissions at length were made and reliance also was placed on certain decisions.
3. Submission of Sri K. L. N. Rao : Sri K. L. N. Rao, the learned Counsel representing the respondents 1 and 2 would maintain that the notice of demand Ex. A-8 is within the period and hence the provisions of the Act had been complied with. There is no specific denial by the appellant in Ex. A-13, but however the stand of 'act of God' had been taken as defence and in the light of the same, the fact that none concerned with the Surveyor's report had been examined would not alter the situation ill any way. The learned Counsel also would maintain that no doubt, there are certain terms and conditions in Exs. A-3 and A-4 but the Consignor had not signed the same. The transport was from Adilabad to Calcutta and at Nagpur what transpired Is the internal arrangement of defendants 1. 2 and 3 and the question of agent and sub-agent would not come Into play at all. The learned Counsel pointed out to Ex. A-25, the Surveyor's report, and made submissions at length in this regard. The learned Counsel also would maintain that the fact that the accident took place while the goods were in the custody of appellant/3nd defendant is not in serious controversy. Carrier can escape the liability only on the ground of 'act of God' or action of King's enemies and none of the grounds are available and even otherwise in view of Section 9 of the Act the burden being on the carrier the same had not been discharged and in view of the same the findings recorded are in accordance with law. The counsel also had taken this Court through the relevant provisions of the Act and ultimately would conclude that the non-examination of the Surveyor would not alter the situation in any way. The learned Counsel also would maintain that if Exs. A-3 and A-4 are read along with Ex. A-8. the position is clear and hence at any stretch of imagination it cannot be said that the findings recorded by the trial Court in this regard are in any way erroneous.
4. The parties hereinafter would be referred to as "plaintiffs" and "defendants" as shown in the suit.
Pleadings of the parties :
5. Plaint filed by the plaintiffs : The brief averments made in the plaint by the plaintiffs are as hereunder :
Plaintiff No. 1 is the United India Insmance Company Limited and plaintiff No. 2 is M/s. Cotton Emporium, Calcutta and defendants 1 and 2 are running transport business at Adilabad and 3rd defendant is running transport business at Nagpur. It was also pleaded that plaintiff No. 2 booked 50 cotton bales to a common carrier to M/s. Adilabad Nagpur Roadways, Adilabad, 2nd defendant as Lot No. 31 on 2-11-1989 by L. No. 7 dated S-11 -1989 and another 50 cotton bales to M/s. Pick Up Transport, Adilabad, 1st defendant, as Lot No. 30 by Lr. No. 401, dated 2-11-1989 for the purpose of transporting the same to Calcutta through its dealer Sri Jagadamba Traders, Cotton Dealers, Adilabad. The bales were transported to Nagpur by the said common carriers. Out of said bales 40 bales from Lot Nos. 31 and 20 bales from Lot No. 30 were loaded in Truck No. AMN-1M21 on 3-11-1989 and dispatched to Calcutta by another common carrier by name M/s. Meet Road Lines, Nagpur, 3rd defendant by Lr. Now. 4168 and 4169 dated 3-11-I989. Defendants 1 and 2 loaded 60 bales in AMN 1821 on their own risk represented by 3rd defendant, that on 3-11-1989 when the goods were under transit in midst 60 bales were burnt In the said lorry near Mahalgaon. The 2nd plaintiff ob tained Marine Insurance from 1st plaintiff at Adilabad bearing Policy No. 05701/21/ 26/11/08704/89. dated 2-11-19H9 and 05701/21/26/11/08705/89 dated 2-11-1989 in respect of the above said cotton bales for the purpose of transporting the same from Adilabad to Calcutta covering all the transit rest as per the policies. M/s. Kapadta Brothers, Nagpur were appointed by the 1st plaintiff as Surveyor to assess the damages caused to the above said 60 cotton bales in fire accident and the damages were assessed at Rs. 1.32.000/ and ultimately the claim was settled at Rs. 1.34.850/- including Its. 2850/- for surveyor lee with the insured 2nd plaintiff and the said amount was paid to the 2nd plaintiff through cheque. The total loss incurred by the 2nd plaintiff on account of entustment of 1st defendant is Rs. 44,950/ and total loss incurred by 2nd plaintiff on account of entrustment to 2nd defendant is Rs. 89.900/-. The defendants could not settle the claim of the 2nd plaintiff in spite of notice Issued by the 2nd plaintiff dated 6-11 -1989 to all the defendants and all the defendants gave replies dated 10-11-1989, 8-11 -1989 and 29-1 -1990 respectively to the above said notices. The defendants 1 and 2 denied their responsibility as I he accident occurred at Nagpur at Maharashtra State. The 3rd defendant denied its liability for the reasons that the accident occurred and the loss incurred due to "act of God'. Due to the replies of the defendants the 2nd plaintiff executed a letter of subrogation and Special Power of Attorney on 18-4-1990 in favour of 1st plaintiff and the Ist plaintiff paid Rs. 1,34,850/- to the 2nd plaintiff as the consignment was insured by the Ist plaintiff. The 1st plaintiff issued a legal notice on 13-12-1991 to all the defendants through registered post acknowledgments due stating that the 1st defendant is liable for damages to the extent of 20 cotton bales and the 2nd defendant is liable for damages to the extent of 40 bales and the 3rd defendant is liable for damages to payment of entire amount paid by the 1st plaintiff to the 2nd plaintiff i.e., Rs. 1.34.850/- and the above said amount should be paid to the 1st plaintiff. The 3rd defendant denied its liability by his reply dated 18-12-1991 and contended that the same was 'act of God' and the consignment was not entrusted by plaintiffs to it.
6. Written statement of defendants 1 and 2 : Defendants 1 and 2 resisted the suit filing written statement in detail and in view of the fact that defendants 1 and 2 had not carried the matter by way of Appeal, several details narrated in the written statement may not be essential for the present purpose. Be that as it may, in substance the stand taken by defendants 1 and 2 is that since the accident occurred while the goods were in the custody of 3rd defendant, the 3rd defendant alone is liable under the Act.
7. Written statement of 3rd defendant : The 3rd defendant filed a written statement denying the allegations and taking a stand that on 2-11-1989 the 2nd plaintiff entrusted 50 costume bales bearing lot No. 31 to M/s. Adilabad Nagpur Roadways, Adilabad, 2nd defendant, for transportation of the same to Calcutta. The 2nd defendant dispatched the same under lorry receipt No. 7 dated 2-11-1989 and another 50 cotton bales bearing lot No. 30 to M/s. Pick-up Transport, Adilabad, 1st defendant, for transportation to Calcutta. The 1st defendant dispatched the same under lorry receipt No. 401 dated 2-11-1989. The defendants 1 and 2 sought the services of the 3rd defendant for transportation of the aforesaid bales from Nagpur to Calcutta and the 3rd defendant dispatched 40 bales from lot No. 31 and 20 bales from lot No. 30 through lorry bearing No. AMN 1821 from Nagpur to Calcutta under lorry receipt Nos. 4168 and 4169 dated 3-11-1989. The 3rd defendant had taken sufficient care of goods entrusted as any ordinary man of prudence would take of his own goods. The 3rd defendant got loaded the above said 60 bales in the said lorry and safely covered them with tarpaulin cloth and tied with ropes. The lorry proceeded for Calcutta and hardly it covered 8 or 9 kms, distance when the fire took place. The lorry did not stop during its journey and no sooner the driver of the lorry noticed the fire, he stopped the lorry and immediately took steps for extinguishing the fire. The 3rd defendant also called fire brigade of Municipal Corporation, Nagpur for extinguishing the fire. The 3rd defendant had taken all possible measures to mitigate the loss. In the absence of adequate facility of water at the spot of fire some of the bales were damaged. There was no negligence on the part of the 3rd defendant and he cannot be held responsible for the fire. It took place due to the 'act of nature/God'. Even otherwise the 3rd defendant acted as sub-agent and as such he is not accountable for loss caused to the plaintiffs. The 3rd defendant is not aware of the feet that the goods were insured with the 1st plaintiff. Further the 3rd defendant is unaware of appointment of M/s. Kapadia Brothers, Nagpur as Surveyor to assess the damages caused to the above said bales. The damages assessed by said Surveyor is absolutely false, incorrect and exorbitant. The 3rd defendant denies that there was damage of Rs. 1,32,000/-. The owner and driver of the lorry bearing No. AMN-1821 are necessary and proper parties to the proceedings and in the absence of them the suit is not maintainable. The plaintiffs have no cause of action to file the present suit.
8. Issues Settled before the trial Court :
1. Whether the plaintiffs are entitled for recovery of Rs. 1,34,850/- towards damages or to what amount?
2. Whether the plaintiffs are entitled to recover the damages from the defendants or from which defendants?
3. Whether the fire took place due to the act of God?
4. Whether the driver and owner of lorry bearing No. AMN-1821 are necessary and proper parties?
5. Whether the 2nd plaintiff is a registered partnership firm?
6. Whether the suit is barred by limitation?
7. Whether the 1st plaintiff has no cause of action against the defendants?
8. To what relief?
9- Evidence available on record :
PW-1 was examined on behalf of the plaintiffs and Exs. A-1 to A-26 were marked. DW-1 was examined on behalf of the 3rd defendant.
10. Findings recorded by the trial Court : The trial Court on appreciation of the oral and documentary evidence recorded findings that the plaintiffs are entitled to recover an amount of Rs. 1,34,850/- towards damages of the damaged cotton bales and also came to the conclusion that the 3rd defendant also is liable to pay the amount and there is cause of action to file suit and ultimately decreed the suit. Hence the Appeal.
11. The following Points arise for consideration in this Appeal :
1. Whether appellant / 3rd defendant also can be made liable in the facts and circumstances of the case?
2. Whether the provisions of the Act had been complied with in issuance of notice?
3. Whether the non-examination of Surveyor would in any way vitiate the findings?
4. Whether the liability and the quantum of damages can be either reduced or negatived in the absence of evidence?
5. If so to what relief the parties are entitled to?
12. POINTS 1 to 4 : The respective pleadings of the parties already had been referred to supra. PW-1, the Assistant Administrative Officer of United India Insurance Company Limited, Adilabad, deposed about the details. He deposed that M/s. Cotton Emporium, Calcutta is the 2nd plaintiff and the 1st. defendant is running transport business at Adilabad and the 2nd defendant also is doing the said business and the 3rd defendant is running the said business at Nagpur. He also deposed about the 2nd plaintiff booking 50 bales to common carriers through Adilabad Nagpur Roadways, Adilabad, the 2nd defendant, as lot No. 31 on 2-11 -1991 and another 50 bales through 1st defendant as lot No. 30 for the purpose of transporting to Calcutta through its dealer Jagadamba Traders, Adilabad and the bales were insured with their company. He also deposed that defendants 1 and 2 carried the bales upto Nagpur and they were shifted to 3rd defendant transport company and when the goods were under transit from Nagpur to Calcutta the bales were burnt in the lorry bearing No. AMN-1821 belonging to 3rd defendant. Because of the negligence of the 3rd defendant the Cotton bales were burnt in the lorry. The value of the cotton bales is Rs. 1,34,850/-. M/s. Kapadia Brothers, Nagpur was appointed by the plaintiff Company as Surveyor to assess the damages caused to the 60 bales in fire. This witness, PW-1, also deposed that 20 bales were taken from the 1st defendant Pick-Up Transport and 40 bales were taken from 2nd defendant Adilabad Nagpur Roadways. He also further deposed that M/s. Kapadia Brothers, Nagpur gave a report stating that the damage was Rs. 1,34,850/- including Rs. 2850/- of Surveyor's fee. The 2nd plaintiff issued notice to the 1st plaintiff and also to the defendants. The defendants got issued reply to the said notice. The 1st plaintiff after obtaining Letter of Subrogation and Power of Attorney from the 2nd plaintiff paid Rs. 1,34,850/- to the said party. Afterwards, the 1st plaintiff issued a legal notice to the defendants and defendants gave reply that they are not liable to pay damages. This witness also deposed about the documentary evidence i.e. Ex.A-1 Letter No. 401 issued by the 1st defendant, Ex. A-2 Letter No. 7 issued by 1st defendant dated 2-11-1989, Ex. A-3 Letter No. 4169 dated 3-11-1989, Ex. A-4 Letter No. 4168 dated 3-11-1989, Ex. A-5 Policy issued covering list of 50 bales of cotton entrusted to the 1st defendant dated 2-11-1989, Ex. A-6 Policy issued covering 50 bales of cotton entrusted to the 2nd defendant, Ex. A-7 Information regarding the burning of all bales dated 4-11-1989, Exs. A-8 to A-10 Notices of payment of loss dated 6-11-19-89, Exs. A-11 and A-12 Legal notices by defendants 1 and 2 elated 8-11-1989 and 16-11-1989, Ex. A-13 Reply notice by 2nd defendant dated 21-9-1990, Ex. A-14 Letter of Subrogation and Special Power of Attorney in favour of the 1st plaintiff by 2nd plaintiff dated 18-4-1990, Exs. A-15 to A-17 Legal notices to the defendants dated 13-12-1991, Exs. A-18 to A-20 Acknowledgment cards dated 13-12-1991, 16-12-1991 and 13-12-1991, Ex. A-21 Reply by 3rd defendant dated 18-12-1991, Ex. A-22 is the Driver's statement, Ex. A-23 is the claim bill dated 21-11-1989, Ex. A-24 is the panchanama conducted by Police, Nagpur dated 3-11-1989, Ex. A-25 is the Surveyor's Report dated 15-11-1989 and Ex. A-26 Discharge voucher showing the payment dated 16-5-1990. PW-1 was cross-examined by defendants 1 and 2. In the cross-examination certain questions were put relating to Exs.A-1 and A-2 and certain suggestions were denied. In the cross-examination of the 3rd defendant, this witness deposed that it is mentioned in Ex. A-3 that the consignment is on owner's risk and it is mentioned in Ex. A-3 that in case of fire accident the 3rd defendant is not. liable to pay damages and defendants 1 and 2 booked goods with 3rd defendant. Jagadamba Traders, Adilabad sold the cotton bales to 2nd plaintiff on cash. M/s. Cotton Emporium, Calcutta is a partnership firm and he does not know whether the 2nd plaintiff is a registered firm or unregistered one. He further deposed that it is true that by the month of November winter season sets in arm he does not know whether the 3rd defendant covered the bales with tarpaulin and tied with ropes and it is correct that fire accident took place 8 or 9 k. kms. away from Nagpur and the driver of the lorry immediately called the fire brigade to extinguish the fire. This witness further deposed that the 3rd defendant is not the owner of the lorry No. AMN -182 ]. PW-1 also deposed that it is not correct to suggest that there is no negligence on the part of the 3rd defendant and that due to 'act of God' and not due to the negligence of the driver the fire accident happened. Suggestion was put in relation to the Surveyor's report Ex. A-25 and the same had been denied and the suggestion relating to correctness of the amount, mentioned in Surveyor's report also was denied. He also further deposed that there is no direct contract between the 2nd plain-tiff and the 3rd defendant and other suggestions also had been denied.
13, DW-1 on behalf of the 3rd defendant was examined who deposed about the details and also deposed that the driver of the lorry noticed the fire and immediately informed them and called fire brigade, Nagpur for extinguishing the fire and. they made all the arrangement for fire brigade and the fire was extinguished by the fire brigade. The body of the truck and the cover of cotton bales were burnt in the fire. DW-1 also deposed that there was damage to a tune of Rs. 25,000/- and he is not the owner of the lorry AMN-1821 and they acted in the transaction as forwarding agent and the consignment was booked at owners risk and the terms and conditions are mentioned in the lorry hire receipt. Exs. A-3 and A-4 are the consignment receipts issued by them. The fire accident happened because of the God and not due to their negligence. This witness also deposed that he was not called at the time when the Surveyor, assessed the loss and he does not know whether- Kapadia brothers was appointed as Surveyor and the claim of the Surveyor is false. This witness, DW-1, was cross-examined. No doubt DW-1 deposed that the driver of AMN- 1821 was no more. The driver of the lorry intimated about the incident to the fire bridge and in turn the fire brigade informed him. He went along with the fire brigade and he enquired the driver how the fire accident happened. Then he informed him that he saw smoke from the mirror and found the bales burning. DW-1 deposed that the driver had not: informed him as to how the fire caught the bales. He also deposed that it is not correct. to suggest that due to the negligence of the driver of the lorry the fire took place. Police conducted panchanama and he does not know its contents. This witness also deposed that it is not true to suggest that because of the negligence the lorry accident happened and therefore he is responsible to pay an amount of Rs. 1,34,850/- and it is not true to suggest that the bales were transported at his risk and it is not true to suggest that the Surveyor estimated the loss in his presence and he was deposing falsely. DW-1 denied the suggestion that the driver of the lorry had not expired and that the said lorry driver Narang Singh is still working as driver and he is deposing falsely.
14. Ex. A-8 is the notice from the 2nd plaintiff to the 3rd defendant dated 6-11-1989 which reads as hereunder :
M/s. Meet Road Lines, Behind Bharatiya Niwas Lodge, Central Avenue, Nagpur 440 002.
Dear Sir, Sub :-- Fire to 60 FP Cotton Bales (40 bales from lot Nos. 31 and 20 bales from lot No. 30} in Truck No. AMN 1821 on Nagpur Bhandia Road on 3-11-1989.
********** We hereby give you a notice as under:
(1) We had handed over 50 Nos. Cotton Bales (lot No. 30) to M/s. Pickup Transport, Adilabad for Transportation from Adilabad to Calcutta {Nagpur) vide L. R. No. 401 dated 2-11-1989.
(2) The above referred 100 bales were unloaded at Nagpur for Transshipment. Out of this 100 bales. 60 bales (40 bis. From lot 31 and 20 from lot 30) were loaded In truck No. AMN 1821 on 3-11 -1989 and dispatched to Calcutta by M/s. Meet Road Lines, vide L. R. Nos. 4168 and 4169. dated 3-11-1989. . The remaining 40 bales were dispatched to Calcutta separately.
(3) We are Informed that all the 60 bales loaded In Truck No. AMN 1821 were burnt In a fire on 3-11-1989 during the journey from Nagpur to Calcutta.
(4) You are now hereby called up on to pay an amount of Rs. 1,92,890/- as under:
Value of 40 Nos. Bales (lot 31) Rs. 1,25,600
Value of 20 No. Bales (lot 30) Re. 62,000
Freight Rs. 1,440
Fire Brigade charges Rs. 1,000
Survey Fee Rs. 2,850
Rs. 1,92,890
Kindly reimburse the same within 15 days.
Thanking you,
Yours faithfully
For COTTON EMPORIUM
Sd/-
PARTNER
Copy to Branch Manager,
United India Insurance Co. Ltd. Allahabad.
Ex. A-13 Is the reply dated 29-1-1990 given by the 3rd defendant to the 2nd plaintiff which reads as hereunder :
M/s. Cotton Emporium, P-36, India Exchange Place Extn.
Room No. 34, 3rd Floor.
Calcutta 700001.
Re : Fire to Cotton Bales as against Lot Nos. 31 and 30 in Truck No. AMN 1821 on Nagpur-Bhandla Road on 3-11-1989.
********** Dear Sirs.
We confirm having received your notice dated 6th Nov. 1989 and our reply is as under :--
That above referred bales were unloaded at Nagpur for transshipment and 60 bales as mentioned in para 2 of your notice were loaded in the above mentioned Truck with due care and were sent to destination for safe delivery at destination. That due to GOD ACT and unforseen reasons the above bales were burnt In an accidental fire on 3-11-1989 during the journey from Nagpur to Calcutta.
Since the incident occurred in the running truck and due to God Act as such we being a transporter are not at all responsible for the loss sustained therein because the Incident was beyond human control.
Hence we advise you to please lodge the claim on your underwriters. We regret for the loss suffered by you.
Yours faithfully, For Meet Road Lines Sd/-
CC: To: M/s. Sri Venkatcsh Cotton Corpn. Adilabad for Inf. please.
Certain submissions were made that Inasmuch as the legal notice was issued on 13-12-1991 the provisions of the Act had not been complied with. Section 1@ of the Act reads as hereunder :
Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of. or injury to. goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. In M/s. Indian Drugs and Pharmaceuticals Ltd., Hyderabad v. M/s. Savani Transport P. Ltd.. Hyderabad. while dealing with Section 10 of the Act it was held :
"A reading of the Section shows that a suit cannot be instituted against a common carrier for the loss of. or Injury to, goods entrusted to him unless notice in writing of the loss or injury is given to him. That notice must be given before the institution of the suit and it must be given within six months when the loss or injury first came to the knowledge of the plaintiff. Thus. re-ally Section 10 does not prescribe, ,the period of limitation for filing the suit under the Act. It only prescribes that a notice should be given before filing the suit and it should be given within six. months when the loss or injury first came to the knowledge of the plaintiff. The learned Counsel for the respondent has submitted that because the conjunction "and" is used in the Section, it means that a notice should be given before instituting the suit and the suit should also be filed within six months when the loss or injury first came to the knowledge of the plaintiff. I do not agree. A plain reading of the Section does not lead to that conclusion. What the conjunction "and" means is that not only the notice in writing should be given before the institution of the suit, but it should be given within six months when the loss or injury first came to the knowledge of the plaintiff.
Inasmuch as at the earliest point of time Ex.A-8 was issued, it cannot be said that notice of demand was not made within six months period and hence the findings recorded in this regard by the trial Court cannot be found fault.
15. Section 9 of the Act dealing with Plaintiffs, in suits for loss, damage or nondelivery, not required to prove negligence or criminal act, reads as hereunder :
"In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents."
On the terms and conditions of "without prejudice" reliance was placed on Umesh Jha v. State, AIR 1956 Patna 425 and Union of India v. Shew Bux, . However, on the aspect of burden of proof in the decision referred (1) supra while dealing with Section 9 of the Act, the learned Judge held at para-11 as hereunder :
"Next, I take up the contention of the appellant that when once the learned Judge has found that part of the same goods were sent back to Hyderabad, he should have held that the negligence on the part of the defendant was proved. In this connection, it is necessary to refer to the relevant provisions of the Act. Section 8 of the Carriers Act, to the extent it is relevant, provides that every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss of 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. Section 9 says that in any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. Therefore, Section 9 relieves the plaintiff from the burden of showing that the loss or damage or non-delivery was owing to any negligence or criminal act of the carrier, his servants or agents. The burden of proving the absence of the negligence is on the carrier. The reason is that the liability of the common carrier is that of an insurer. Even if there is no negligence on the part of the common carrier, he is liable to compensate the owner of the goods for the loss of the goods that occurred during the transit. This position is well settled by the decisions of the Courts (See: P.K. Kalaswami Nadar v. K. Pormuswami Mudaliar, AIR 1962 Mad. 44, Vidya Ratan v. Kota Transport Co. Ltd., , Tugari Ram v. Dominion of India, , Commrs. For the Port of Calcutta v. General Trading Corporation Ltd., and R.K. Abdulla Yelinje Mammi v. Kadambalithava Chennakeshava, )."
In Road Transport Corporation v. Kirloskar Brothers Ltd., a Division Bench of the Bombay High Court while dealing with Sections 8 and 9 of the Act held at paras 9 and 46 as hereunder :
"Once these are admitted, certain consequences follow and they may briefly be stated here. One of the terms in the consignment note (Ex. 49) was that the goods were transported subject the terms and conditions mentioned on the overleaf and therefore a vain attempt was made both in the trial Court and in this Court that the defendants were not liable as carriers for the payment of compensation for the short delivery of goods. The trial Court has rightly come to the conclusion that under the mandatory provisions of Section 8 of the Carriers (Act III) of 1865, every common carrier shall be liable to the owner for loss or damage to any property caused by the negligence or fraud of defendants or their agents, notwithstanding anything contained in the terms and conditions in Ex. 49. The lower Court was also right in holding that such condition would not exonerate defendants from liability for short delivery of goods and further finding of the trial Court that admission given by Shri Gole, the plaintiffs witness that the suit consignment to defendants for being transported from Calcutta to Kirlos-karwadi was subject to the terms and conditions printed overleaf of the consignment note would also not assist the defendants to escape from their liability, is also unassailable. In fact the provisions of Section 9 of the said Act are too unambiguous to be emphasized here and under these provisions the plaintiff No. 1 is absolutely free from the burden of proving that short delivery or nondelivery is the factum of loss by way of short delivery or non-delivery.' The presumption of negligence on the part of the defendants being rebuttable presumption, it is for the" common carriers-defendants in this case, to rebut such a promotion and if that is not done satisfactorily the suit has to be decreed. The liability of carriers is not that of a mere bailee. It has been held that such a liability is on the part of the defendants and the liability of an insurer is that of risk. Therefore, the best of the efforts on the part of the defendants will not assist them in their defence in the case if there is a short delivery or non-delivery of the consignment in question.
The most important question that has to be answered is : Did the defendant do what was sufficient to draw the plaintiffs attention to the relevant condition before the contract was concluded ? In the facts of the present case the last condition was to restrict the jurisdiction to a particular Court out of the two Courts having concurrent jurisdiction. In order that terms and conditions on the overleaf of a consignment note passed by common carrier be binding on the consignor or consignee and in order that temporary injunction should operate as special contract between the consignor or consignee on the one hand and the carrier on the other hand, the consignment note must be signed by the consignor and consignee and constitute a contractual document. In cases of unsigned consignment notes containing clauses limiting the liability of the carriers as well as excluding the jurisdiction of certain Courts and restricting it to specific Court only, such clauses or terms and conditions must be brought to the notice of the consignor of the goods. If such terms and conditions are not brought to the notice specifically and adequately then the consignor or consignee would not be bound by these terms and it would be open for them to file a suit in any competent Court having jurisdiction other than one mentioned in the clauses excluding jurisdiction of other Courts. When more than one Court have concurrent jurisdiction to try a suit in order to exclude jurisdiction of one Court such condition required explicit warning. It must be brought to the notice before hand and preferably printed in red ink or pointed by a document as observed by Lord Denning M. R. In the present case no sufficient and adequate notice was given to the consignor or consignee by the carrier of the term excluding the jurisdiction of the Sangli Court and restricting it to the Calcutta Court alone and therefore it was not binding on the plaintiffs i.e., the consignees in this case. It was therefore, open to the plaintiffs to have its claim instituted and settled in any one out of the two or more competent Courts having territorial jurisdiction in respect of the subject matter in dispute".
In Milap Carriers v. National Insurance Co. Ltd., , while dealing with Sections 6, 8 and 9 at paras 11,12 and 15 it was held :
"A reading of the written statement indicates that at the stage of the written statement, the defendant took the attitude of denying everything including incontrovertible facts. The defendant goes to the extent of denying issue of Ex. A-3 lorry receipt and it. also goes to the extent of denying the goods being the insured goods. It further claims that the defendant was never entrusted with the goods for transport and that it did not load into the lorry B. H. N. 6889. The defendant also denied issuing the non-delivery receipt. One look at the documents clearly shows that the defendant Milap Carriers is a common carrier. Ex. A-3 issued by it clearly shows that it is Transport Contractors and Commission Agents with offices at Hyderabad and at Calcutta. It proclaims that it has daily service to various places like Cuttack, Bhuwaneswar, Calcutta, Ranchi, Patna, Guwahati, Jprhat etc. To claim that it is not a common carrier and that it did not issue Ex. A-3 lorry receipt is too much to be believed. Ex. A-5 non delivery certificate clearly indicates that Milap Carriers is Transport Contractors and Commission Agents and it certified that the goods had been looted near Kolaghat and hence delivery could not be effected. It also mentions that the goods were sent on 25-9-1978 vide Delivery Memo No. 96 i.e., Ex. A 2. When DW-1 gave evidence, he claimed that he is the sole proprietor of the defendant firm and that he simply printed letter heads and lorry receipt books and gave them to plaintiff No. 2. Though he claims that he is only a lorry broker and Commission agent and that he received only a commission of Rs. l5/-, in the cross-examination, he admits that he has no document to show that he received Commission from the driver of the vehicle and he admits that he has L. Rs. and letter heads for the purpose of correspondence. Considering the overwhelming documentary evidence, It is well established that the defendant is a common carrier as defined under the Carriers Act. He himself admits in his evidence as DW-1 that he has licence to carry on his business and that he has branches at Hyderabad and Calcutta and that he arranges transport vehicles to Bengal, Assam, Orissa and Andhra. The trial Court rightly held that Ex. A-3 and Ex. A-5 to A-8 and Ex. A-12 positively show that the defendant is a common carrier.
A combined reading of Sections 6 and 8 of the Carriers Act indicates that, the liability of a common carrier for loss of damage to any consignment can be limited by a special contract signed by the owner of such property or by some person duly authorized in that behalf. Section 8 stipulates that a common carrier is liable for loss or damage caused by neglect or fraud by himself or his agent. It also stipulates that where the damage is caused by a criminal act of his agents or servants, lie would be liable. Section 9 of the Carriers Act. reads as follows :
"In any suit brought, against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not, be necessary for the plaintiff to prove that, such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents."
Tills Section clearly stipulates that it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to negligence or criminal act of the carrier, his servants or agents. The burden. is upon the carrier to prove that, the loss, damage or non-delivery was not due to negligence or criminal act of the carrier or his servants or agents. Section 10 stipulates that no suit can be instituted against a common carrier for the loss of a consignment unless a notice is issued within six months from the time when the loss or injury came to the knowledge of the plaintiff. Bearing in mind the provisions of the Carriers Act, we have to judge the facts of the present case to find out whether the carrier has liability for the loss of the consignment.
It is true that on the facts of that particular case, the common carrier was made liable, because there is no special contract. There is no doubt about the fact that the liability of the common carrier is in the nature of an insurer. In the present case on hand, the loss has been occasioned by circumstances beyond the control of the common carrier. The common carrier never anticipated or expected the heavy floods in Bihar and Bengal, nor could he, by any stretch of imagination, anticipate that the hungry Hood victims would loot the lorry carrying biscuits tins. If there was no special contract between the parties, certainly the common carrier would have been liable in this case. In the present case on hand, Ex, A-3 was signed by the consignor and the common carrier's representative and hence the special contract, which is found printed on the reverse of the lorry receipt springs into action. Clause (3) of the special conditions, which covers theft, civil and political nots and disturbances, certainly comes to the rescue of the defendant and exonerates the common carrier from liability."
In Madura Co. Ltd. Alleppy v. Xavier, AIR 1931 Madras 115 it was held that under the Carrier's Act negligence is presumed by the loss of goods and no question of misconduct, arises if the common carriers fail to rebut the presumption with which every case starts, by showing that they are not guilty of such negligence as would make them liable and they are liable for damages. In Transport Corporation of India v. Hindustan Polymers, 1979 (1) ALT 196, while dealing with Section 9 where the suit was filed by carrier for certain amounts due as charges for carrying the goods of defendant and defendant pleaded short delivery of goods it was held that the burden lies on the plaintiff to prove that short delivery was not due to his negligence. In Banwari Lal Podar v. Road Transport Corporation, it was held :
"From a perusal of the aforementioned provision it is evident that a common carrier shall be liable to the owner for loss or damage to any property delivered to it where loss or damage has arisen from the criminal act of the carrier and loss or damage to the owner of any such property other than the property to which the provisions of Section 3 apply and in respect whereof no declaration as required thereunder has been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants.
From a perusal of Sections 8 and 9 of the Carriers Act, 1865 it is, therefore, clear that the burden of proof that there was no criminal act or negligence on the part of the carrier or its agents or servants is upon the carrier."
In Assam Bengal Roadways Ltd. v. Union of India, it was held that Section 9 of the Act is not repugnant, to Sections 101 to 104 of their Indian Evidence Act 1872. In Hindustan Corporation (Hyderabad) Pvt. Ltd. v. U. I. F. G. Insurance Co. Ltd. it was held at para 12 as hereunder :
"We are, therefore, of the view that the appellant, as common carrier, cannot contract out or relieve Itself of its absolute liability under Section 8 of the Carriers Act, 1865 by stipulating that the goods were being carried at the owner's risk, and that the burden is clearly upon it to establish that there was no negligence on its part. No reliable and convincing evidence has been adduced by the appellant to discharge the burden on it and to establish that it and its servants or agents had taken all reasonable are in respect of the goods entrusted to it and that there was no negligence on its part. That the goods were damaged due to rain waters splashing and that they were delivered in wet condition cannot be disputed because of the admission to that effect in Ex. A-5 certificate and Ex. A-6 reply given by the Manager of the appellant at Madras. The learned trial Judge observed that neither the driver of the lorry in which the goods were transported nor the person accompanying that lorry during the transit of the goods from Hyderabad to Madras was examined and that was fatal to the case, of the appellant as regards negligence because the knowledge or cause for the damage would be within the exclusive knowledge of the driver or the person accompanying that lorry. The trial Judge also held that there, was no special contract under Section 6 of the Carrier Act, 1865 between the appellant and the 2nd respondent to the effect that the goods were being transported at owner's risk because one of the lorry's receipts Exs. A-1 to A-4 bear the signature of the 2nd respondent or any other person on its behalf and that therefore, the absolute liability of the Carrier under Section 6 would be attracted to the facts of the present case. These findings were not seriously questioned before the learned single Judge. The requirement of notice of loss or injury "within six months of the time when the loss or injury first came to the knowledge of the plaintiff under Section 10 of the Carriers Act, 1865 is also satisfied as is seen from Ex, A-6 which was the reply of the appellant to the letter dated 16-12-1972 of the 2nd respondent. The appellant tried to get over its liability by suggesting to the 2nd respondent:
"that you kindly take up the matter with Insurance Company with whom you should have taken a policy for covering the above circumstances."
But, the appellant cannot escape its liability for its negligence that, way and it has to compensate the 2nd respondent, the owner of the goods, for the damage caused to them."
16. It is no doubt true that the consignor had not signed the L. R. It is also true that in Ex. A-8 and Ex. A-13 defendants 1 and 2 had been referred to. On a careful scrutiny of the evidence available on record, at no point of time the quantum of damage as such estimated had been seriously disputed. In that context only submissions at length were made relating to the report of the Surveyor and non-examination of the Surveyor in this regard. The decisions in M. Iqbal and Company v. Someswara Cements Chemicals Limited', , Grandhi Padmariabham v. Rajesh Gothi, Vedantham Satyavathi v. P. Verikataratnam, 1988 (1) Andh LT 915, United India Assurance Co. Ltd. v. Sri Satyanarayana Ghee Trading Co. and Sail: Tarajce Khirnchand v. Yelamarti Satyam, also had been relied upon and certain submissions were made at length in this regard. Reliance also was placed on M/s. Economic Roadways Corporation, Hyderabad v. National Insurance Co. Hyderabad, 2002 (1) L. S. 128 wherein it was held that where objection was not taken by defendant when the Surveyor's report was accepted by the 1st plaintiff/Insurance Company and no steps had been taken by defendant to prove the signatures on damage certificate were forged even though Surveyor was not examined the claim was settled and the amount was paid to the 2nd plaintiff and in the facts and circumstances of the ease the contention that the plaintiffs had not proved their case is unsustainable.
17. It Is to be-appreciated that even in Ex. A-13, the reply given, only the ground of 'act of God' had been taken. It is no doubt true that DW-1 deposed about the quantum of damages of Rs. 25,000/- but specific suggestions were put in cross-examination. The evidence of a witness may have to be read as a whole and hence the contention that there is no specific denial relating to this aspect and henee it should be taken as admission relating to quantum of Rs. 25,000/-by the plaintiffs definitely cannot be accepted especially on careful reading of the whole evidence of DW-1. Hence the examination or non-examination of the Surveyor in this regard need not be seriously considered especially in the light of the stand taken by the 3rd defendant.
18. Yet another attempt was made that absolutely there is no privity of contract. It is true that the goods were entrusted to de-' fendants 1 and 2. Certain submissions were made that the consignor had not signed the L. Rs. Certain submissions were made relating to whether the appellant / 3rd defendant is bound by the terms and conditions of the L. Rs, or not. Strong reliance was placed on The State Bank of Hyderabad, Branch Warangal v. Devarakonda Chandra Mouli, 1983 (2) APLJ 188 wherein it was held:
"Under Sections 190 and 191 of the Indian Contract Act the sub-agent is a person employed by and acting under the control of the agent. The principal has no control over the sub-agent. The fact that after such employment the sub-agent and the Principal directly correspond does not convert the sub-agency into a case of substituted agency. Nor does mere knowledge of the principal regarding the sub-agency create any direct privity. The terms for which the sub-agent works, under the agent are different from the terms for which the agent works under the principal. Notwithstanding the employment of the sub-agent, the relationship between the principal and agent continues. The agent, continues to be liable for the acts and negligence of the sub-agent."
Certain submissions were made relating to the privity of contract, the sub-agent and the substituted agent. On a careful reading of the evidence of PW-1 and DW-1, the picture is very clear, There is no serious controversy that when the 3rd defendant; was carrying the goods the fire accident occurred and consequent thereupon, the damage occurred. As can be seen from even the L. Rs. the agreement was for the transport from Adilabad to Calcutta. No doubt Nagpur also Is shown. The internal arrangement at Nagpur which made the 3rd defendant to carry further in the peculiar facts of the case, in the considered opinion of this Court, would not alter the situation in any way so far as the liability of the carrier is concerned under the provisions of the Act. The question of sub-agency or substituted agency may not come into play since this is the liability of the carrier governed by the provisions of the Act as aforesaid. The plea of 'act of God taken in this regard had not been established. Even if the driver was no more certain others could have been examined to show at least the fire accident was due to 'act of God'. There is absolutely no evidence with regard to what happened at the relevant point of time and there is no serious controversy on this aspect. The appellant/3rd defendant was unable to discharge this burden cast upon him by law. Hence, viewed from any angle, this Court is of the opinion that the Judgment and decree made by the trial Court in this regard cannot be found fault In any way in the light of the detailed and clear findings recorded relating to the whole of the documentary evidence.
19. POINT NO. 5: In the light of the findings recorded above, it is needless to say that the Appeal is devoid of merit and accordingly the same shall stand dismissed. However, in the peculiar facts and circumstances of the case, this Court makes no order as to costs.