Madras High Court
M/S.Brakes India Ltd vs M/S. Bic Logistics Ltd on 26 February, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.02.2010 CORAM THE HON'BLE MR.JUSTICE G.RAJASURIA C.S.No.546 of 2006 1.M/s.Brakes India Ltd. represented by Power Agent/ Subrogee M/s.United India Insurance Company Limited 2.M/s.United India Insurance Company Ltd.,represented by its Senior Divisional Manager .. Plaintiffs Vs M/s. BIC Logistics Ltd. .. Defendant Suit filed for recovery of a sum of Rs.10,78,094/- with interest at the rate of 18% per annum from the date hereof till the date of realization and for costs. For Plaintiffs : Mr.Nageswaran For Defendant : Mr.K.K.Sanchetti J U D G M E N T
This is a suit filed by the plaintiffs as against the defendant for recovery of a sum of Rs.10,78,094/- together with interest at the rate of 18% p.a. (being the commercial transaction) from the date of plaint till the date of realisation and for costs.
2. The facts giving rise to the filing of this suit as stood exposited from the plaint would run thus:
i) The first plaintiff entrusted certain automobile spare parts with the defendant, who is a public carrier within the meaning of the Carriers Act, 1865 at Polambakkam Cheyyar Taluk, Tamil Nadu for being transported to M/s.M.V.Axles Ltd., Jamshedpur on 30.05.2003. The goods were got insured by P1 (insured) with P2 (the insurer)- the Insurance Company.
ii) It so happened that the goods were not received by the consignee; whereupon it turned out that the goods were not handed over by the defendant to the consignee. Thereupon Statutory notice under Section 10 of the Carriers Act,1865 was sent by the first plaintiff to the defendant, for which the defendant gave unconvincing reply. The first plaintiff approached the second plaintiff, the insurer; whereupon the insurer probed into the matter. On getting Letter of Subrogation and Special Power of Attorney, executed by the first plaintiff in favour of the second plaintiff, the latter paid a sum of Rs.10,78,094/- to the former. As such, the first plaintiff and the second plaintiff had correspondences with the defendant, which evoked no positive response from the defendant. The plaintiffs have filed this suit seeking the following reliefs:
a) to direct the defendant to pay the second plaintiff a sum of Rs.10,78,094/- with interest at the rate of 18% per annum from the date hereof to the date of realization in full being a commercial cause and
b) for costs of the suit.
(extracted as such)
3. Denying and refuting, challenging and impugning, the averments/allegations in the plaint, the defendant filed the written statement, the gist and kernel of it would run thus:
1. This court is having no territorial jurisdiction to entertain this suit as the entrustment of the goods by P1 with the defendant took place outside Chennai.
2. The suit also is barred by limitation in view of Article 72 of the Limitation Act, which contemplates only a year's time to file a suit; whereas the suit has been filed beyond time.
3. The defendant, being a public carrier, is not liable to pay any compensation/damages due to Act of God or Act of Enemies of State.
4. Here, the correspondences, which the defendant had with the plaintiffs would clearly demonstrate and display, that owing to the murder of the driver and the cleaner of the vehicle, which carried the goods, there was non-delivery of the consignment on the part of the defendant to the consignee.
5. The suit claim is outside the scope of the conditions of policy of Insurance, which emerged between the first plaintiff and the second plaintiff. As such, the letter of Subrogation and the Special Power of Attorney executed by the first plaintiff in favour of the second plaintiff are not valid in the eye of law.
6. The defendant being a public carrier is not liable in view of the special circumstances involved in this case.
Accordingly, he prayed for the dismissal of the suit.
4. My learned Predecessor based on the pleadings framed the following issues:
1. Whether this court is having territorial jurisdiction to entertain the suit?
2. Whether the suit is barred by limitation in terms of Article 72 of the Limitation Act?
3. Whether the defendant is absolved from liability on account of Act of God or Acts of Enemies of States?
4. Whether there was a valid policy of insurance covering the risk resulting in the loss while the consignment was in the custody of the defendant-common carrier?
5. Whether there was a valid Letter of Subrogation and Special Power of Attorney in favour of the second plaintiff facilitating them to file and maintain a suit?
6. Whether there was a valid notice under Section 10 of the Carriers Act?
7. Whether the suit claim is outside the scope of the conditions of policy of insurance in force between the parties?
8. Whether the defendant common carrier is liable for the loss of the suit consignment?
9. Whether the plaintiffs are entitled to any other relief in the suit?
5. During trial, on the plaintiffs side one S.Srinivasan was examined as PW1 and Exs.P1 to P18 were marked. On the defendants side one K.Venkatasubramaniam was examined as DW1 and Exs.D1 to D9 were marked.
6. A 'resume' of facts, absolutely necessary and germane for the disposal of this suit would run thus:
Indubitably and indisputably, unassailably and unarguably, the goods referred to in the plaint were entrusted by the first plaintiff with the defendant, being a common carrier, for transporting the same to the consignee M/s.H.V.Axles India Ltd., at Jamshedpur;but the goods were not handed over for which, the defendant would plead that the driver of the lorry and the cleaner concerned were murdered by inter-state gangsters; wherefore, the protection offered under the Carriers Act is available to them to invoke the plea of Act of Enemies of State and the court cannot mulct the defendant with liability.
7. It is therefore, just and necessary to analyse each and every issue.
Issue No.1:
8. Ex facie and prima facie and at first blush the contention of the defendant raising the issue as to whether this court is having territorial jurisdiction to entertain this suit, might be attractive; but a deep analysis of the plaint averments would demonstrate that such a plea is not tenable. Here, the first plaintiff executed the power of attorney as well as the letter of subrogation in favour of the second plaintiff, within the city of Madras on receipt of a sum of Rs.10,78,094/- whereby, the substantial cause of action has arisen within the jurisdiction of this court; wherefore, I hold that this court has got territorial jurisdiction to entertain the suit.
Accordingly, this issue is decided in favour of the plaintiffs.
Issue No.2:
9. This issue is relating to limitation.
10. The pertinent question arises as to whether, Article 10 or 72 of the Indian Limitation Act is applicable in the facts and circumstances of the case and both those Articles are extracted here under for ready reference:
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Article Description of suit Period of Time from which period Limitation begins or run
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10 Against a carrier for compensation Three When the loss or injury
for losing or injuring goods years occurs
72 For compensation for doing or One When the act or
for omitting to do an act alleged to year omission takes place
be in pursuance of any enactment
in force for the time being in the
territories to which this Act extends.
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11. I recollect and call up the following maxims:
(i)Expressio unius, exclusio alterius. {The express mention of one thing implies the exclusion of another.}
(ii) Expressum facit cessare tacitum. {Mention of one or more things of a particular class may be regarded as silently excluding other members of the class.}
(iii) Generalia specialibus non derogant. {Generalities do not derogate from special provisions.} These sister maxims would unassailably and unequivocally, highlight and spotlight the fact that whenever there is special clause governing a special case that will exclude the other. Here, the said Article 10 is squarely applicable to the facts and circumstances of this case as admittedly and indubitably, the defendant is the carrier and for such cases, Article 10 is specifically meant; wherefore, the defendant cannot try to invoke Article 72, which is coming under the caption part VII covering the suits relating to Tort in general.
12. This point is also decided in favour of the plaintiffs that the suit is not barred by limitation as this suit has been filed on 12.06.2006, which falls within three years from the date of entrustment of the goods by P1 with the defendant.
Issue No.6:
13. This issue is relating to the validity of the notice issued under Section 10 of the Carriers Act by the first plaintiff as against the defendant. Ex.P10 is the said notice, which in my opinion, covers comprehensively the requirement of Section 10 and nothing has been highlighted on what ground the said notice falls foul of Section 10 of the Carriers Act.
Accordingly, this issue is also decided in favour of the plaintiffs.
Issue Nos.3 and 8:
14. These two issues are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
15. The tour d' horizon of the learned counsel for the plaintiffs concerning these two issues would run thus:
a. The plaintiffs, for the purpose of fastening the common carrier, viz., the defendant with liability, are not expected to prove anything apart from the fact that there were entrustment of the goods for being taken to a particular destination and there occurred non delivery of the same within the time stipulated. The plaint averments and the evidence adduced on the side of the plaintiffs would amply make the point clear that the defendant committed default in performing its part of the duty as a common carrier under the Carriers Act, 1865.
b. The defendant, being a common carrier cannot try to wriggle out its liabilities simply by pleading that the driver and the cleaner of the lorry, which carried the goods, were murdered and that there is an exclusionary clause in the contract so as to absolve the defendant from its liability.
c. Admittedly, the defendant entrusted the goods to one other contractor; whereby the defendant committed breach. Absolutely, there is no shred or shard of evidence much less reliable evidence for the court to arrive at a conclusion that in fact the driver and the cleaner of the lorry, which carried the goods, were murdered in the manner that the defendant has projected in the written statement and also during trial.
d. The term "Acts of Enemies of the State" would not include mere criminals. There is nothing to indicate that the perpetrators of the alleged crime were proclaimed offenders or terrorists, etc. Accordingly, the learned counsel for the plaintiffs prayed for decreeing the suit as prayed for.
16. Denying and refuting the argument as put forth by the learned counsel for the plaintiffs, the learned counsel for the defendant, has set forth and put forth his argument, the gist and kernel, the pith and marrow of it would run thus:
i) Section 8 of the Carriers Act, 1865 makes the point pellucidly and palpably clear that unless the defendant, being the common carrier, is shown to have acted negligently, the question of the defendant paying damages would not arise.
ii) There is also no indication that the defendant or its employees or the driver or the cleaner of the lorry indulged in any criminal acts and thereby caused loss or damage to the goods.
iii) On the contrary, positive evidence has been adduced by marking voluminous documents on the defendant's side as set out supra and those documentary evidence coupled with the surveyor's report Ex.P14 marked on the plaintiff's side would amply and adequately make the point clear that the non-delivery of the goods resulted not due to any negligence on the part of the defendant but due to the "Acts of Enemies of State".
iv) The documents marked on the defendant's side with translation would also express and expatiate, convey and portray, that in fact, inter State gangsters committed such murders and appropriated the goods.
v). The police, in fact, recovered part of the goods and handed it over to the Magistrate Court concerned, from where the first plaintiff, with the assistance of the defendant, obtained those goods and those are all undisputed facts. The defendant, wherefore, cannot be mulcted with the liability to pay compensation or damages to the plaintiffs.
Accordingly, he prayed for the dismissal of the suit.
17. Both sides cited case laws and it is just and necessary to refer to those precedents.
18. The learned counsel for the plaintiffs cited the following precedents:
(i) AIR 1962 Madras 44 (P.K.Kalasami Nadar v. K.Ponnuswami Mudaliar and others) and an excerpt from it would run thus:
3. . In Halsburys laws of England, Vol.4 (Simonds Edn.) at page 141, the liability for loss of damage of goods entrusted to a common carrier is stated thus:
A common carrier is responsible for the safety of the goods entrusted to him in all events, except when loss or injury arises solely from act of God or the Queens enemies or from the fault of the consignor, or inherent vice in the goods themselves. He is therefore liable even when he is overwhelmed and robbed by an irresistible number of persons.
(ii) 2004 (4) CTC 273 (Patel Roadways Ltd. Formerly Patel Roadways Private Ltd.) No.100, Sherif Devji Street, Bombay 400 035 vs. Seshasayee Industries Ltd. Vadalur 607 303 and another). An excerpt from it would run thus:
"15. Section 9 of the Act reads, "In any suit brought against a common carrier for the loss, damage or non-delivery of goods including container, pallets or similar article of transport used to consolidate 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"
thereby indicating that the plaintiffs are relieved from proving that such damage had occurred, owing to the negligence or criminal act of the Carrier, provided the defendant Roadways comes within the meaning of "common carrier", attracting the provisions of the Carriers Act, 1865. If the defendant/appellant is not a common carrier, then the benefit and protection given to the plaintiffs under Section 9 of the Act, may not be applicable. In this view alone, a defence had been raised, that the defendant/appellant is not of a common carrier and in the absence of proof of negligence or criminal act of the carrier, the claim is not sustainable.
16. By going through the evidence available on record, the attending circumstances, as well as theother provisions of the Act, we are unable to persuade ourselves to take the defendant/appellant outside the definition of "common carrier". In fact, the evidence available on record and the nature of business conducted or carried on by the defendant/appellant would suggest unquestionably, that it is a common carrier, as defined under the Act and therefore, as such the appellant/defendant cannot escape from the provisions of law, throwing the burden upon the plaintiffs, to prove the negligene or the criminal act of the carrier".
No doubt a mere perusal of the above precedents and more specifically, the aforesaid excerpts would demonstrate and display that under all circumstances the public carrier under Carriers Act, 1865 is liable to compensate the plaintiffs unless it could be shown that owing to Act of God or Acts of Enemies of State, the goods could not be delivered at the destination and it is not the duty of the plaintiff to prove negligence on the part of the defendant and it is for the defendant to take such defensive plea and prove them to the satisfaction of the court.
19. The learned counsel for the plaintiffs also cited the Kerala High Court decision reported in AIR 1971 Kerala 197 (R.R.N.Ramalinga Nadar vs. V.Narayana Reddiar) and an excerpt from it would run thus:
"15. Act of God is one arising from natural causes. Some of the well-known instances of acts of God are the storms, the tides and the volcanic eruptions. They are, in a sense, inevitable accidents beyond the control of man. What is urged in this case is that all inevitable accidents must be taken as acts of God. Matters which are not within the power of any party to prevent, is, according to learned counsel, inevitable accidents so far as he is concerned and consequently it is to be considered as acts of God. I cannot agree. Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases accidents may be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God. Cockburn C.J., in the leading case in Nugent v. Smith (1876-1 CPD 423) said, "It is at once obvious, as was pointed out by Lord Mansfield in Forward v.Pittard, that all causes of inevitable accident -" "fortuitus" may be divided into two classes those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, of nonfeasance or of misfeasance, or in any other cause independent of the agency of natural forces. It is obvious that it would be altogether incongruous to apply the term "act of God" to the latter class of inevitable accident. It is equally clear that storm and tempest belong to the class to which the term "act of God" is properly applicable".
In Halsbury's Laws of England, Vol.8. 3rd Edition, Page 183, this question is dealt with as under:
"An act of God, in the legal sense of the term, may be defined as an extra ordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or more accurately, as an accident due to natural causes, directly and exclusively without human intervention, and which cold not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it. The occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extra ordinary, 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, it 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 Iyer Nataraja Yier v. South Indian Rly.Co. (21 Trav LJ 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 cannot 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".
Placing reliance on the said decision, the learned counsel for the plaintiffs would strenuously argue that even in case of robbery, the liability of the defendant Public carrier cannot be exonerated and it has to pay the damages, unless there is exclusionary clause in the contract to that effect.
20. Here, simply because in the back page of the invoice, according to the learned counsel for the plaintiffs, certain clauses are found printed, it cannot be taken as a contract, which emerged between both sides so as to absolve the defendant from paying any compensation or damages to the plaintiffs, in the event of the loss of goods due to act of criminals. Axiomatically, I have to hold that simply because certain clauses are found printed on the back of Ex.P8, so as to exclude its liability in the event of certain criminal acts, it cannot be taken as a binding contract, which got concluded, between the first plaintiff and the defendant, whereby vinculum juris emerged in that regard.
21. The learned counsel for the defendant cited the following decisions:
2001-1-L.W.756 (Nath Bros.Exim International Ltd. Vs. Best Roadways Ltd.) and certain excerpts from it would run thus:
26. If a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section 9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the King, a phrase used by the Privy Council). .
22. Placing reliance on the said decision of the Hon'ble Apex court, the learned counsel for the defendant would appropriately and appositely, correctly and convincingly argue that the public carrier like the defendant is exempted from liability in the case of Act of God or Act of enemies of State. No doubt, the factual matrix involved in the said precedent is concerning fire accident. But, here, the factual matrix would indicate and demonstrate that the driver and the cleaner were murdered. Albeit, the learned counsel for the defendant taking a cue from the cited precedent of the Hon'ble Apex Court would highlight and spotlight the fact that Act of Enemies of State would absolve the defendant from paying compensation for damages. Inconcinnity and in parimateria with the law as stood enunciated in the decision of the Hon'ble Apex Court, various other decisions also emerged and they are listed here under:
1. AIR 1963 Bombay 208 (Hussainbhai Mulla Fida Hussain vs. Motilal Nathulal and another)
2. 2006 (2) CTC 483 (Kerala Transport Company v. National Insurance Co.Limited).
23. At this juncture, I would like to refer to certain jurisprudential points. 'Ratio decidendi' of a case would act as a binding precedent normally. However, trite the proposition of law is that so far the Supreme Court judgements are concerned both the 'ratio decidendi' and the 'obiter dictum' found there in should be taken as binding precedents by all the lower Courts in India. I would hasten to add that 'obiter dictum' of the Supreme Court in a decision would not have binding effect on one other co-ordinate Bench of the same Supreme Court.
24. From the law laid down in the said precedent cited supra that Act of enemies of State would absolve the public carrier from liability, the question arises as to whether in this case any Act of Enemies of State is involved in causing damage to the goods entrusted by the first plaintiff with the defendant and the consequent failure on the part of the defendant to entrust the goods with the ultimate consignee.
25. The learned counsel for the plaintiffs would submit that the defendant was not at all justified in entrusting the goods to a third party for being transported. Per contra, the learned counsel for the defendant would submit that it is the general practice of the transport carriers to engage vehicles belonging to others for the purpose of transporting the goods as the defendant carrier itself may not be having sufficient number of vehicles and such practice is not illegal or prohibited under law.
26. I would like to agree with the submission made by the learned counsel for the defendant that the defendant is not enjoined upon to transport goods entrusted with it by the plaintiff only by its own registered lorries. The defendant public carrier can always draft vehicles on contract, along with the drivers and cleaners, for transporting the goods entrusted by the plaintiff with the defendant and I could see no illegality in that.
27. The maxims,
(i) Ex turpi causa non oritur actio (Out of a base (illegal or immoral) consideration, an action does (can) not arise.
(ii) Ex dolo malo non aritur actio - (Out of fraud no action arises; fraud never gives a right of action. No court will lends its aid to a man who founds his cause of action upon an immoral or illegal act.
(iii) Ex nudo pacto non oritur actio : No action can arise from a bare agreement, cannot be pressed into service by the plaintiffs in the factual matrix of this case. If at all the defendant is stated to have committed any breach of condition of the contract or breach of law in entering into such contract with third party for transporting the goods, then applying the aforesaid three maxims the court can mulct the defendant with liability by stating that he is having no cause of action at all to invoke the pleas such as Acts of Enemies of State, in the event of the goods having got lost. The maxim "Delegatus non potest delegare" [ A delegate cannot delagate; an agent cannot delegate his functions to a subagent without the knowledge or consent of the principal; the person to whom an office or duty is delegated cannot lawfully devolve the duty on another, unless he be expressly authorized so to do] also for the reasons adverted to supra by me, cannot be invoked by the plaintiffs. But, in this case, a mere perusal of the Surveyor's Report Ex.P14 coupled with Exs.D2 to D9 along with English translations [D2- certified copy of the FIR in Crime No.72 of 2003 with Maubander P.S.Ghatsila Division, East Singhbhum District, Jharkhand; D3- certified copy of the statement of witness; D4- copy of post mortem certificate of driver; D5-certified copy of final report in Crime No.72/03 with Ghatsila Police station East Singhbhum District, Jharkhand State; D6-certified copy of FIR in crime No.63/03 with Bharagoda P.S.East Singhbhum District, Jharkhand State; D7-certified copy of statement of witness; D8-certified copy of post mortem certificate of cleaner and D9-certified copy of final report in Crime No.63/2003 with Bharagoda P.S. East Singhbhum District, Jharkhand State ] and also the evidence of DW1,would amply make the point clear that the goods were entrusted by the first plaintiff with the defendant, who in turn, engaged through a lorry broker, the concerned lorry involved in the mishap along with its driver and cleaner and got the goods transported. When the lorry was negotiating along the border of the Jharkhand and West Bengal, inter state gangsters way laid the lorry and abducted the driver and the cleaner and brutally murdered them and threw away their dead bodies in different places and decamped with the said goods.
28. It appears that the father of the owner of the said ill-fated vehicle lodged a complaint with the police, whereupon, the police swung into action and conducted the investigation; in the course of the same, the police also got recorded the confession statement of Vidyasagar Dubey. An excerpt from Ex.D5, the certified copy of final report in Crime No.72/03 with Ghatsila Police station East Singhbhum District, Jharkhand State, would run thus:
On 20.07.2003 the Mango police raised the Godown of Feku Mian on rent from Malkit Singh within Mango P.S.area in Punjabi Line and seized 90 pairs of break shoes and also arrested persons present there (1) Vidyasagar Dubey son of Bhagwati Sharan Dubey of Burmamines, Road No.Q.No.39, P.S.Burmamines, (2) Rajoo Prasad @ Tuinkoo son of Dinesh Prasad of Road No.43, B.Block, Bagunhatu P.S.Sidhgora (3) Nisaraul Hque son of Late Md.of Tuiladungri, B.Block Road No.1, near gurudwara,P.S. Golmuri and (4) Chakudrika Prasad son of Ram Dular Sao of Purana Purulia Road Mango, near Bijli office, P.S.Mango, whereas Feku Mian of Munsh-Mohalla, managed to escape. In the confessional statement of Vidyasagar Dubey admitted his quilt and stated that for gain with the help of Raju pd. @ Tinkoo waylaid the truck No.AP-13-T-6949 from the Bahragora P.S.area and after killing the driver and khalasi threw the deadbody in Bharagora and ghatshile area drove the truck to Nimdih P.S.Area in village Adapur and unloaded the Truck with the help of Chandrika Jaiswal and abandoned the Truck in Bankura Then material (break shoe) were lefted from there and brought at TAL of Dharampaswan if Hume Pipe and which was not disposed, if was brought to the godown of Feku Mian after selling 225 pieces, 180 pieces 90 pairs where it was seized.
During investigation till date, statement of witnesses inspection of P.O., P.M.report supervision of officers this case has been formed to be true u/s 320/201/379/361/414 I.P against non FIR accused(P) Vidyasagar Dubey son of Bhagwati Sharan Dubey of Verma Road, Q.No.39, P.S.Burmamines (2) Rajoo Pd @ Tuinkoo son of Dinesh Prasad of Road No.13, B.Block, Bagunhatu P.S.Sidhgora (3) Nisaraul Haque son of Lal Mohammed of Tuiladungri,B B.Block Road No.1, near gurudwara,P.S. Golmuri and (4) Chakudrika Pd. Sao son of Ram Dular Saw of Purana Purulia Road near Bijli office, P.S.Mango, and (5) Feku Mian son of unknown of Munshi-Mohalla with sufficient material for charge sheet. Therefore,keeping the investigation pending against Fenku Mian son of Unknown of MUnshif Mohalla, Mango Ghatshila P.S. Charge sheet No.72/03 dated 26.10.03 u/s.302/201/379/364/414 IPC against the above named progress report. Investigation also pending on the direction noted in report 2/3. (extracted as such) In pursuance of the said confession, the police also recovered part of the plundered goods and entrusted them to the Magistrate court concerned and admittedly with the help of the defendant, the first plaintiff also received those goods from the Magistrate Court and the plaintiffs also in all fairness deducted from their claim in the plaint, the value of the goods recovered.
29. At this juncture, the learned counsel for the plaintiffs would raise a technical objection that Exs.D2 to D9 were not marked on the defendants side as per law. No doubt, a mere perusal and poring over of the deposition of DW1, the official of the defendant, would demonstrate and evince that he had no personal knowledge about such police investigation. However, he placed reliance only on documents, as through him alone all these documents were marked.
30. The learned counsel for the plaintiffs would even go the extent of pointing out that the translations appended to those documents are also not authenticated ones. Whereas the learned counsel for the defendant by way of explaining and expounding the position would submit that the certified copies were obtained from the Magistrate Court concerned and from the certified copies, photocopies were taken and before this court photo copies were compared with the certified copies and the certified copies were returned as the defendant is facing similar case in Coimbatore court also.
31. No doubt, the normal practice is that original has to be marked or copies of certified copies could be marked exceptionally in matters of this nature copies compared with the copy could be entertained provided the copy compared with the copy is beyond doubt.
32. I would like to visualize this case from a different angle because, I would like to give importance to Ex.P14, the plaintiffs own document, the surveyors report. If for any reason, Ex.P14 had not been marked and relied on by the plaintiffs themselves certainly, the argument as canvassed and put forth by the learned counsel for the plaintiffs would have found favour with me. Peculiarly, as a singularly singular case, in this matter, the plaintiffs' do very much rely on Ex.P14, their own surveyors report and documents Exs.D2 to D9 marked on the defendants side are keeping in consonance and inconcinnity with the Surveyors report; and in view of this peculiar feature involved in this case, I do not like to simply take a technical view and discard Exs.D2 to D9. Ex.P14, is worthy of being considered for the reason that the Insurance Company- P2 as per its own procedure appointed a Surveyor and the Surveyor concerned conducted extensive survey and submitted a voluminous report running to 18 pages, which contains photos of the dead bodies of the murdered persons and also the details relating to the First Information Reports registered, etc.
33. The learned counsel for the defendant convincingly and appropriately has drawn the attention of this court to page Nos.7 to 10 of the Surveyors report and developed his argument that the surveyor's findings is in concinnity with Exs.D2 to D9.
34. A mere poring over of the surveyors report would evince and expatiate that the lorry, which carried the said goods was way laid in the place as found set out in the surveyors report as well as in the copy of the First Information Reports filed on the defendants side, that the driver and the cleaner were forcibly taken out of the lorry and they were murdered in two different places and their dead bodies were thrown away and the gangsters also took away the goods.
35. At this juncture, I recollect and call up the famous maxim that preponderance of probabilities would govern the adjudication in civil cases and as such, technicalities should not be allowed to mar the vision of justice.
36. I am of the view that the evidence available is more than sufficient to establish a clear case that the driver and the cleaner were murdered and the goods were plundered away by the inter state gangsters. No doubt, as contended by the learned counsel for the plaintiffs, those documents were not marked by the authors of those documents, viz., by summoning police officials who registered the FIR and also the police official who filed the charge sheet before the court concerned. In my opinion, in the civil cases of this nature, such technical compliance is not warranted. Punctilious of court procedure in marking should not stand in the way of rendering justice.
37. To the risk of repetition and pleonasm and without being tautologous, I would like to hold that in the wake of Ex.P14, the surveyors report, which the plaintiffs themselves, are relying on, strict proof of Exs.D2 to D9, is not necessary legally and it would be too much to visualize or develop doubt that Exs.D2 to D9 might be concocted documents by the defendant so as to put forth its plea for the purpose of wriggling out of its liability from this case.
38. I would like to hold that the defendant to the satisfaction of this court established that the said goods were transported by the lorry, which they engaged from a third party and in the process of transporting the same, the driver and the cleaner were murdered for no fault of them by the Enemies of State and no negligence of the defendant is involved in entire episode.
39. A mere perusal of the surveyors report as well as Exs.D2 to D9 would clearly convey and portray that the gangsters actually indulged in braggadocion chess man type of murders and it is not an ordinary criminal act. Those gangsters indulged in brutal murder of the driver and the cleaner and also tried to secret the dead bodies. It is not an act of an ordinary criminal. The nature of the attack as found depicted would clearly display and demonstrate that the perpetrator's acts would clearly attract the definition of "Acts of Enemies of State" and it is not necessary that they should be proclaimed offenders or terrorist or some such personnel. No where, I could come across a definition as per the plea of the plaintiffs that in order to push the acts of gangsters within the ambit of the definition of "Acts of Enemies of State", those gangsters involved in the case should have been declared earlier as proclaimed offenders etc.
40. The learned counsel for the plaintiffs would invite the attention of this court to the decision of the Kerala High Court cited supra and submit that Kerala High Court clearly and categorically pointed out that, even in case of robbery, there should be an exclusionary clause, so as to absolve the defendant-Public Carrier from the rule of absolute liability. Without disagreeing with the view as expressed by the Kerala High Court, I would like to distinguish the said judgment by referring to my discussion supra. Here, horrendous, blood curdling, hair raising, macabre and gruesome crime had been perpetrated by those inter state gangsters on hapless and helpless poor, poverty-stricken, driver and cleaner and such an act cannot be simply taken as a mere act of robbery. If their acts of ghastly murders cannot be described as "Acts of Enemies of State, I am at a loss to understand as to what else could be described so. Expecting that if at all a foreign enemy indulges in such brutal acts, then only the public carrier would be absolved from liability, would amount to throwing the baby along with the bath water and consequently, rendering the defence of negligence as found embodied in Section 8 of the Carriers Act, 1865 nugatory and otios. The defendant cannot be found fault with, as though they were negligent in not protecting the goods from such gangsters. No doubt, the common carrier is bound to provide safety for preserving the goods during carriage and till delivery even as against theft and robbery and the employees of the defendant or the employees of the contractor viz., the driver and the cleaner cannot behave in a nonchalant or cavalier fashion and simply shrug their shoulders as though they were not at all responsible for the theft or robbery.
41. At this juncture, I would like to refer to certain definition relating to "Act of King's Enemies/ Act of Queen's enemies:
"An Act of the Queen's enemies, if, for most practical purposes limited to acts of enemy soldiers in times of war: but it would presumably also apply to rebels fighting against the Crown under the orders of a de facto rebel government in a civil war. The acts of bandits and armed robbers, even if acting in large bands by open violence, or of rioters or strikers are not acts of the Queen's enemies (The Marshall of the Marshalsea's Case (1455) Y.B.33 Hen VI)."
An excerpt from the Salmond on the Law of Torts 17th edition at page Nos.194 and 195, is extracted here under:
The decision of the House of Lords in Donoughae v. Stevenson, "treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialised breach of duty". Actions do not lie for a state of mind. Negligence is conduct, not a state of mind conduct which involves an unreasonably great risk of causing damage. There is no necessary element of 'fault' in the sense of moral blame worthiness involved in a finding that a defendant has been negligent. It is negligence in the objective sense that is referred to in the well known definition of Alderson B. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". So also Lord Wright said 'in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing". It is worth noting that it is erroneous, although usual, to speak of injuries being caused by negligence: injuries do not result from legal concepts, but from acts or omissions which may involve or constitute negligence."
The jurisprudential concepts and views relating to Carriers liability should be read subject to the statutory provision, viz., Section 8 of the Carriers Act, 1865, while adjudging the matter arising out of transporting of goods under the Carriers' Act, 1865.
42. I recollect and call-up the maxim verba ita sunt intelligenda, ut res magis valeat quam pereat - [The words (of an instrument) are to be so understood, that the subject-matter may rather be of force than perish (rather be preserved than destroyed; or, in other words, that the instrument may have effect, if possible].
43. Accordingly, we cannot read anything new into the statutory provisions. The statutory provisions, viz., Section 8 of the Carriers Act, 1865 embodied in itself the concept that a Carrier should not be made to pay damages, if it is not at all negligent.
44. So far this case is concerned, even by phantasmagorical thoughts or by any stretch of imagination it cannot be stated that the defendant or the owner of the lorry, which carried the goods should have taken care to prevent the driver and the cleaner being murdered and the goods taken away in the peculiar facts and circumstances of this case. As such, I would like to describe this case as a singularly singular case relating to which strict liability theory cannot be applied.
45. But, here, the plaintiffs cannot expect the defendant, that the defendant should have taken precautionary measures to preserve the goods from such sort of inter state gangsters. There is also nothing to indicate and exemplify that in those areas concerned, the goods were expected to be transported only with the help of armed guards etc. Wherefore, I am of the considered view that the plea of "Acts of Enemies of State" could rightly be pressed into service by the defendant and that the defendant cannot be mulcted with liability of paying damages or compensation in favour the plaintiffs.
46. Accordingly, these two issues, viz., Issue Nos.3 and 8 are decided in favour of the defendant and as against the plaintiffs.
Issue Nos.4, 5 and 7:
47. These issues are pertaining to the defence taken by the defendant as though there was no proper insurance contract, which emerged between the first plaintiff and the second plaintiff and that there were no proper execution of the letter of subrogation and the special power of attorney. My discussion under the aforesaid issues would clearly exemplify that there is nothing to find fault with the contracts, which emerged between the first plaintiff and the second plaintiff. The plaintiffs could not succeed in this case in view of the fact that the defendant could successfully attract the plea of "Acts of Enemies of State".
Accordingly, these issues are decided.
Issue No.9:
48. In view of the ratiocination adhered to in deciding issue Nos. 3 and 8, in favour of the defendant, the suit is dismissed. However, in the circumstances, there is no order as to costs.
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