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The Carriers Act, 1865
Section 9 in The Carriers Act, 1865 [Entire Act]
The Marine Insurance Act, 1963
Section 3 in The Carriers Act, 1865 [Entire Act]
Criminal Rules (Assam)
Section 10 in The Carriers Act, 1865 [Entire Act]
M/S.Brakes India Ltd vs M/S. Bic Logistics Ltd on 26 February, 2010
21.The said observations squarely apply to the facts of the case on hand. In this case, though the appellant/defendant made an attempt to show that there was no negligence or criminal act on the part of the appellant/defendant, its agent or its servant leading to the loss of the consignment, it not only failed to prove it, but on the other hand the fact that there was a criminal act on the part of the servants or agents of the appellant/defendant was proved by the admission of DW1 and the even in the form of deposition of DW2 and Exs.B1 and B2. The learned counsel for the appellant relied on a recent judgment of a learned single Judge of this Court in Brakes India Ltd., and another Vs. BIC Logistics Ltd., reported in 2010 (3) CTC 258 and made an attempt to contend that the appellant shall be absolved of its liability to make good the loss because a highway theft of the consignment was committed and moreover case registered on the same is still under investigation. The said decision relied on by the learned counsel for the appellant shall not be applicable to the facts of the case. In the said case it was proved that the employees of the carrier viz., the driver and cleaner of the lorry were murdered and the goods were taken away by gangsters. The murder of the driver and cleaner would clinchingly establish the act of the State's enemies in looting the goods. That is the reason why in the said case this Court had chosen to decide the questions of the liability of the carrier to make good the loss in the negative. In the case on hand, it is not the clear case of the appellant/defendant that the driver /cleaner of the vehicle were murdered. Moreover, there is no clear cut plea that there was no complicity on the part of either the driver or cleaner of the lorry in looting the consignment. There is clear admission as indicated supra that the driver and cleaner have been implicated in the criminal case registered by the police regarding the looting of the consignment. It has been pointed out supra, that the burden is on the carrier to prove absence of negligence or criminal act on its part or on the part of its servant or agent. In this case, apart from there being no evidence to prove the absence of such negligence or criminal act, there is a clear admission regarding the involvement of the driver and cleaner in the commission of the offence. Cleaner was arrested and the driver is yet to be arrested. Under such circumstances, this Court is of the view that the judgment relied on by the learned counsel for the petitioner is not applicable to the case on hand. Therefore, though there is a special contract to the effect that the goods were transported at owner's risk, since the loss has occurred due the criminal act of the servant / agent of the appellant/defendant, the appellant/defendant is liable to pay compensation to the first respondent/first plaintiff, the owner of the goods.