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1. This is an appeal by the defendant against the judgment and decree in O.S. No. 401 of 1981 on the file of the V Additional Judge, City Civil Court, Hyderabad. The suit filed by the first plaintiff, National Insurance Company Ltd., was decreed as prayed for Aggrieved by the same, the defendant, the Transport Company, which acted as a common carrier, has come forward with this appeal.

2. The second plaintiff booked a consignment of biscuit tins to M/ s Roy Brothers at Burdwan, West Bengal. The defendant, a common carrier, undertook to transport the consignment. The defendant issued Ex.A.3 lorry receipt on 25-9-1978 and sent the goods by Lorry B.H.N. 6889. The lorry receipt is signed both by the consignor as well as the representative of the defendant. The lorry receipt indicates that the goods were being carried at owner's risk and there was also a rubber stamp to indicate 'not responsible for leakage and breakage'. The consignment did not reach the destination. It was not delivered to M/s Roy Brothers at Purdwan. On 27-10-1978, the defendant issued non-delivery certificate stating that the whole consignment has been looted near Kolaghat, West Bengal. As can be seen from Ex. A.2 delivery memo, 1250 tins of biscuits, each tin weighing 4.5 K.Gs.

10. The two questions that arise for determination in this appeal are :

(1) On the facts and circumstances of this case, whether the defendant conies within the definition of 'common carrier' as per Act 3 of 1865?

(2) Whether in this particular case, the defendant has no liability for the loss of the consignment on the basis of the terms of the contract and the terms of the special contract.

POINT NO. 1 :

11. 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, Jorhat 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 D.W.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. 15/-, 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 D.W. I that he has licence to carry on this 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 Exs. A.5 to A.8 and Ex.A.12 positively show that the defendant is a common carrier. I hold point No.1 against the appellant.

17. M. P. Highway Organisation v. New India Assurance Co. Ltd., 1991 ACC CJ 330 (MP) is an instance of a case where the consignor did not sign in the lorry receipt. The lorry agency carrying the goods, namely, 504 tins of Sikka brand mustard oil, was found lying capsized at a particular place. There was no material to show that the accident was a deliberate mishap or that there was any negligence or default of the driver for which the owner of the truck was vicariously liable. In such circumstances, the insurer settled the claim of the consignor and then filed the suit for recovering the amount from the common carrier. In such a background, the court observed that the suit filed by the insurer has to be dismissed. In that case also, the consignment was being carried at owner's risk and it was an insured consignment. There was a special contract and Condition No.1 printed on Ex.P.2 reads as follows: "All consignments are carried entirely at owner's risk. Consignors should take out their own insurance to protect themselves against any or all risks." In paragraph 5, the court observed that in view of this particular condition, it is not open to the consignor to contend that the goods were not to be carried at his risk or that the goods were not to be insured the risk not to be covered by the insurer. Dealing with Sections 151 and 152 of the Contract Act in paragraph 6, the court observed as follows:

The court pointed out that the law of common carriers must be regulated under the Carriers Act and they cannot claim to have their liability determined on the basis of a risk note in Form--H.

20. The principle of that decision is not applicable to the facts of our case. That decision is clearly distinguishable.

21. In the present case on hand, the following are the main facts which are not in controversy.

The goods are insured goods and they were carried at "owner's risk." While booking the goods, the consignor signed the lorry receipt Ex. A. 3 and so he is naturally bound by the special conditions printed on the reverse of EX. A. 3. The third condition, which cannot be said to be against the provisions of the Carriers Act, clearly stipulates that the company will not be liable for loss or damage due to theft, riots, civil or political disturbances and weather conditions. The paper publications Exs.B.1 to B.14 clearly show that there were extraordinary floods at the relevant time. Exs. B.20 and B.21 clearly show that the lorry BHN 6889 was looted by flood victims. The criminal case was investigated and a charge-sheet was filed. The loss was occasioned due to circumstances beyond the control of the common carrier. They are not situations which can be visualised by the common carrier. In effect, they should be equated to an act of God or vis major though strictly speaking, the looting is through the intervention of a human agency.