Karnataka High Court
Assam Bengal Roadways Ltd. And Anr. vs Union Of India on 6 November, 1987
Equivalent citations: AIR1988KANT157, 1987(3)KARLJ172, AIR 1988 KARNATAKA 157
ORDER
1. Heard counsel on both sides on the merits of the matter.
2. Petitioner has challenged the validity of S. 9 of the Carrier~ Act, 1865 as violative of Art.14 of the Constitution. The contention is, that, the provision imposes a burden on one set of common carriers only, without a similar burden being cast on other common carriers like Railways and Airways. It is contended that petitioners are carrying on their trade as a common carrier by road; the onerous restriction imposed by S, 9 of the said Act read with its discriminatory results, renders it void, as being violative of Art.14 of the Constitution.
3. Before adverting to the provisions of the impugned provisions, the law governing the Railways may be referred as stated in Pollock and Mulla's Contract Act, 10th edition (page 781 etc.):
RE. RAILWAYS:
"When goods are entrusted to railways for carriage it has to take such care as is provided in S. 151, Contract Act. The onus on the Railway to show that it had taken such care and if that onus is discharged the onus shifts to the plaintiff to show negligence. And the fact that S. 160, Contract Act, is not mentioned in the Railway Receipt (f or return of goods) makes no difference to the liability. If there is any discrepancy in documents, the Railways have to explain."
"Goods at Railway risk - Where goods are booked at Railway risk and there is destruction of goods by fire en route, it is for the Railways to show reasonable care all through. The principle of recipes loquitur and S. 114(3) evidence Act apply".
"The responsibility of the Railway under Section 72 of the Railways Act is that of a bailee and now under Section 74A of the Railways Act the onus is on the Railways to show want of negligence. In the absence of evidence of the extent of precaution taken by the Police Protection Force, the Railway is liable for loss of goods in transit."
4. The object and reasons for S. 73 of the Railways Act, 1890 is stated, to treat it on par with common carriers. It reads as follows : -
"73. Save as otherwise provided in this Act, a railway administration shall be responsible f or the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely,
(a) act of God;
(b) act of war:
(c) act of public enemies;
(d) Arrest, restraint or seizure under legal process:
(e) Orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorised in this behalf. -
(f) Act or omission or negligence of the consignor or the consignee or the agent or servant of the consignor or the consignee;
(g) Natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;
(h) Latent defects.
(i) Fire, explosion or any 'Unforeseen risk;
Provided that even where such 1oss, destruction, damage, deterioration or non delivery is' proved to have arisen from any one or, more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage', deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in. the carriage of the animals or goods."
5. The proviso to S. 73 imposes the burden of proving that it has taken reasonable foresight and care, on the Railway administration. The liability of the Indian Railways f domestic since) is also same as that of a common carrier - of course, not under the Common Carriers Act. It is governed by the English Carrier law as administered in India. Thus it can expect itself by special agreement of all liabilities including its liability for negligence.
6. Under the English Common Law, Common Carriers were liable as insurers of goods and they were responsible for every injury to the goods occasioned by any means whatsoever, except only the act of God and the enemies. But wherever, Common Carrier Act is applicable, this principle stands modified by the said Statute. To some extent this Act enables the carrier to limit his liability by special contract in the case of certain goods, but not so as to get rid of liability for negligence. Carriers Act has classified goods into two categories.
7. The goods described in the Schedule are specifically treated by Ss. 3, 4 and 5. There are several valuable goods such as gold and silver, writings, title-deeds, silk items etc. etc. The State Government by 'notification may add to this list of articles. The sender (i.e., the person delivering such property described in the schedule) is required to declare to the carrier the value and description of the goods delivered, in case the value of the goods exceeds Rs. 100/- .If no such declaration is made, the common carrier will not be liable for the loss or damage to such a property delivered to the common carrier. In respect of such scheduled goods, carrier is entitled to charge for the risk undertaken.
8. Regarding non-scheduled goods, the liability of the common carrier cannot be limited 1)), any public notice. However, the liability in respect of, these non-scheduled goods can 'be limited by the common carrier by entering into a special contract with the owner of those goods.
9. Section 8 overrides the earlier provisions (Sections 1 to 7). It declares that the common carrier shall be liable to the owner for loss of or damage to any property delivered to it to be carried. where such loss or damage arises from the criminal act of the carrier or any of this agents or servants. It further says that the carrier shall be liable for loss or damage arising from the negligence of the carrier or any of his agents or servants. The second clause is inapplicable to the scheduled goods if the provisions of S, 8 are not complied by the owner.
10. Thus S. 8 imposes the liability on the carrier for the loss or damage to the property delivered, -arising out of:-
(i) the criminal act of the carrier:
(ii) The criminal act of the agents or servants of the carrier:
(iii) The negligence of the carrier; and
(iv) The negligence of the agents or servants the carrier.
11. Section 9, which is attacked, reads thus :--
"Plaintiffs, in suits for loss, damage or non delivery, not required to prove negligence or criminal act - 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."
The impact of S. 9 is quite clear. It relieves the plaintiff from proving the negligence or the criminal act, referred in Section 8. Sections 8 and 9 are to be read together. If so read, the burden of showing that the loss or damage that was caused to the property, was not owing to t he negligence or criminal act of the carrier, his servants or agents, will be entirely on the carrier' Since the carrier's liability is declared under Section 8, it can escape the liability by showing that the liability is not attracted due to the absence of the vitiating elements stated in S. 8.
12. This burden of proof cast on the common carrier may be onerous: it may be on occasions. Impossible to discharge the same. But this burden flows out of the nature of the responsibility cast on the common carrier, by virtue of its character as the insurer of the goods entrusted to it. Section 4 enables it to charge for the risk in respect of scheduled goods. Section 6 enables it to restrict its liability by special contract. Section 8, no doubt, imposes an absolute liability if the loss or damage is due to the criminal act or due to the negligence. But none can plead immunity from a liability arising out of his (including his agents and servants) criminal act or negligence. There is no escape from the consequences of a criminal act or negligence. But if the loss or damage is caused due to other causes, the common carrier can safeguard its interest either under S.4 or S.6.
13. The Characteristics of a common carrier are stated to be thus: (vide 5 Halsbury's Laws of England page 134):
"A common carrier is one who exercises the public profession of carrying the goods of all persons wishing to use his services or of carrying passengers whoever they may be. His rights and liabilities are determined by the common law for reasons of public policy, although they may be varied by contract, and stem from his status as a common carrier rather than from contract, express or implied. His position is analogous to that of an innkeeper at common law."
Again at para 333(p. 156), the liability is stated thus :-
"Subject to the statutory limitations hereinafter mentioned, a common carrier is absolutely responsible for the safety of goods entrusted to him for carriage save where loss or damage results from (i) an act of God
(i) An act of the Queen's enemies, (iii) the fault of the consignor, or (iv) inherent vice in the goods themselves.
Thus, he is an insurer of the safety of the goods against every extraneous risk save act of God or the Queen's enemies. He is liable even when overwhelmed and robbed.
This responsibility is imposed upon a common carrier by law, so the failure to deliver safety is a breach of duty independent of any contract of carriage. Where there has been a breach of duty on his part, such as an unjustifiable deviation, he may be liable for loss or damage even though it results from an act of God or of the Queen's enemies. Where however there is a contact, liability may arise either at common law or under the contract, and the contract may limit the carrier's responsibility."
It is found that different kinds of common carriers like ship, air or railway, are subject of special legislation even in U.K. Having regard to their special features, such legislations were found necessary.
14. The carriage of goods by road, is not the same as carriage by Railway, Ship or Air Similarly, the passengers as the subject of carriage cannot be equated to the carriage of goods. International transport is generally regulated by legislations enacted in compliance with the conventions, as in the case of carriage by Air Act, 1972. But broadly, the liability of all the classes of common carriers is the same. The difference, if any, exists in degrees of liability and the permissibility of special contracts to limit the liability. But that is necessary having regard to the peculiarities and characteristics of each class of common carriers.
15. The nature of the liability of a common carrier, in India, has been stated long ago by the Privy Council, in Irrawaddy Flotilla Company Ltd. v. Bugwandass, (1891) 18 Ind App 121 at p. 129. The law is stated thus :
"The obligation imposed bylaw on common carriers has nothing to do with contract in its origin. It is a duty cast upon common carriers by reason of their exercising a public employment for, reward."
Regarding Section 4, the Privy Council said, (at P. 13), "The section authorises common carriers to charge extra rates for the risk involved in carrying articles of great value in small parcels. The risk intended to be covered is the risk of carriers who are also insurers, and part of the extra charge would, of course, be in the nature of a premium for insurance."
16. As to the nature of the burden of proof imposed on the common carrier, the decision of the Privy Council in River Steam Navigation Company v. Choutmull, (1898) 26 Ind App I may be referred to. The goods in the common carrier (a vessel) was destroyed by fire. The defence of the common carrier was that the fire occurred not due to its negligence, but by outside causes. The trial Court had accepted the defence and held that the common carrier discharged the onus of proving diligence (i.e., non-negligence on its part). This view was reversed by the High Court, and held that the defendants had not discharged the onus cast on them of showing that- the loss was not due to their negligence. The High Court's view was affirmed by the Privy Council. The ratio of the decision, thus, takes us to read Ss. 8 and 9 together, as fastening liability on the common carrier under S. 8, which liability can be discharged, by the common carrier, by establishing that the loss or damage was not due to its criminal act or negligence. Section 9, thus, is a rule of procedure. Such casting of burden on a particular patty is not an innovation of this Act alone. The principle is also found in S. 106 of the Evidence Act. Reasonableness of all most a similar burden imposed under the Sea Customs Act, 1878 has been upheld by the Supreme Court in Collector of Customs, Madras v. Nathella. Sampathu Chetty, .
17. The entire attack of the petitioner, on S. 9 is based on the discrimination said to have been made against different classes of carriers. According to the learned counsel, the stringent provision of liability found in Carriers Act, is not found in similar enactments governing the liabilities of Railways and Airways.
18. Section 8 is not specifically challenged in the writ petition. Actually S. 9 supplements it and is ancillary to S. 8. In view of non-challenge to S. 8, the challenge to S. 9 can be thrown out. Since I heard the learned counsel for the petitioner, dehors his pleadings in writ petition, and the question raised being purely one of law, I thought it not necessary to shut him out at the threshold of his arguments on this ground.
19. Vice of discrimination, results in the law contravening Art.14 of the Constitution. But, equality guaranteed by Article 14 is equality amongst equals. All classes of common carriers cannot be treated on par. Each has its special features. Further, I found the difference in the liabilities amongst these three classes of carriers (of Road, Railway and Air) are of degrees only and in the matter of permitting special contracts. These differences exist both in U.K. and in India. The liabilities imposed by the Carrier Act existed ever since 1865.
20. Equally untenable is the contention that S. 9 of the Act is repugnant to sections 101 to 104of the Evidence Act. It is for the legislature to formulate the principles of evidence to govern the cases pertaining to subject matter of legislation. In fact S. t of the Act is in consonance with the principle underlying S. 106 of the Evidence Act.
21. In the circumstances, it is not possible for me to accept the contentions urged by the learned counsel for the petitioner.
22. Consequently writ petition is dismissed, without any order as to costs.
23. Petition dismissed.