1. The question in this case is whether the respondents were common carriers and liable as such in respect of the goods belonging to the plaintiff and which they were carrying from Nagpur to Pusad. The goods were despatched on 21st April 1949 from Nagpur and were to be delivered to one Vinayakrao Patil of Pusad. The plaintiff alleged that he had expressly declared the value and the description of the goods at the time of delivery to the defendants. On the way the goods were burnt to ashes and hence the plaintiff filed the present suit for recovery of the value of the goods (they were all pieces of furniture) on the basis of a contract to reimburse and also on the basis that the defendants were common carriers.
2. Defendant No. 1 contended that there was no negligence on his part, that the truck was operated by gas plant, and the days being summer days, the goods were destroyed by fire due to some accident, and that there was no negligence on his part. He also denied that they were common carriers. The defendant No. 2 contended that he had already transferred the truck to defendant No. 1 and was not therefore responsible.
3. The suit failed in the trial Court but succeeded in the District Court. In second appeal which was heard by Mudholkar, J. the plaintiff failed and the suit was dismissed.
4. The trial Court held that the defendants were common carriers but that it was not proved that the fire was due to the negligence of the defendants and therefore they were not liable. It also held that if liable, both of them would be liable. The appellate Court held that under the Motor Vehicles Act the defendants were not bound to carry any goods that were offered to them and that they were not common carriers but only ordinary bailees and their liability was only as such. It however held that the burden of proof of absence of negligence was on the defendant. It found in favour of the plaintiff on that issue and decreed the plaintiff's suit. In second appeal, the question as to whether the defendants were common carriers was not decided as probably it was not canvassed. The learned Judge proceeded on the basis of the liability of the defendants as bailees and held that the burden lay on the plaintiff. He held that no facts which could amount to prima facie evidence of negligence were established in the case, nor its causal connection with the destruction of the plaintiff's goods.
5. It is argued on behalf of the plaintiff that the defendants were common carriers and therefore liable.
6. He relies for this purpose on the authority 'of the cases River Steam Navigation Co. v. Syam Sunder Tea Co. Ltd., ILR (1954) GAU 433: AIR 1955 GAU 65; Kalaswami Nadar v. Ponnuswami Mudaliar, ILR I960 Mad 1091: AIR 1962 Mad 44and Mooljee Sicka and Co. v. Narharsingh, : AIR1959MP351 .
The decision of the Privy Council in Irrawaddy Flotilla Co. Ltd. v. Bugwandas, 18 Ind App 121 is clear enough to show that the liability of common carriers under the Common Law and the Carriers Act, 1865, is not affected by the provisions of the Contract Act. It was said in that case:
'The obligation imposed by law 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. 'A breach of this duty', says Dallas, C. J.,Bretherton v. Wood, (1821) 3 B 62, 'is a breach of the law, and for this breach an action lies founded on the common law which action wants not the aid of a contract to support it.''
It was said 'that the written law relating to that liability (the Carriers Act, 1865) is untouched by the Act; the unwritten law was not within its scope.' If therefore the respondents were common carriers, they were liable as insurers for the goods burnt by fire.
7. A preliminary objection was raised on behalf of the respondents that this point was not raised by the plaintiff before Mudholkar, J. and therefore be was not entitled to urge this point in an appeal under Clause (15) of the Letters Patent. The learned counsel relied on Shripad v. Shivram, AIR 1934 Bom 466; Sattappa Gurusattappa v. 'Mahomedsaheb Appalal Kazi, AIR 936 Bom 227 and Kanhaiyalal v. Jerome D'Costa, 1955 NLJ 710 : AIR 1955 Nag 302. In AIR 1934 Bom 466, the question was one of adverse possession and it was not allowed to be raised in the Letters Patent appeal for several reasons. The point was not seriously considered by either of the parties in the original Court. No issue was asked for on that point. In the District Court, it was not pressed nor was it pressed in second appeal, and therefore the Judges said:
'In the circumstances, we must follow the ruling of the Lahore High Court, and refusing to interfere, dismiss this appeal with costs.' Similarly in AIR 1936 Bom 227 the point was not taken in any of the lower Courts and therefore the learned Judges said: '......and in accordance with the usual practiceWe have declined to allow it to be taken in the Letters Patent appeal.'
In 1955 NLJ 710: AIR 1955 Nag 302 the language employed is somewhat strong and the learned Chief Justice said that a new plea is not allowed to be raised in a Letters Patent appeal if it was not raised before the Single Judge. He further said:
'Once a case is decided by a Single Judge, it is his judgment which is the subject-matter of an appeal under Clause (10) of the Letters Patent on a leave given by him. If a particular topic was not considered fit for argument before the learned Single Judge, or a point was abandoned before him, it is not right or proper for the Division Bench in the Letters Patent appeal to allow it to be urged. Further, it is the judgment and what arises therein which is under appeal, and not a matter which was not urged before the single Judge.' In that case their Lordships were dealing with a case where a specific admission was made by the counsel that the document required registration and an attempt was made to show that the admission was erroneous. The learned Chief Justice observed: 'To hold otherwise would be to go behind the leave and to consider the judgment under appeal on a point which was not before the learned Single. Judge............'
With respect, while granting a certificate the Judge does not necessarily confine the points on which leave is granted. Once leave is granted the whole appeal is before the Court. In Raghunathdas Gopaldas v. Secy, of State, ILR 29 Bom 514 in respect of a similar provision as to certificate in the City of Bombay Improvement Act, Sir Lawrence Jenkins C. J. said:
'The sub-section does not provide for leave to appeal being granted to any individual, but fora certificate that the case is a fit one for appeal, that is, the whole case, and not any particular part of it.'
The observations in 1955 NLJ 710; AIR 1955 Nag 302 appear to be too strong. As pointed out by Broomfield, J. in AIR 1936 Bom 227 that in Mahabir Singh v. Dip Narain Tewari : AIR1931All490 , though the practice was recognised, it was held that it did not mean any absolute prohibition. We_ think in a proper case the Court may be justified in permitting the point to be raised. If the contention raised was the very basis of the party's case and formed the subject-matter of issues before the two Courts below and was not touched before the Single Judge, in some cases in its discretion the Bench may allow the point to be raised. Normally, it would not permit the appellant to do so. But in cases like the present where the point is of importance, the Court may in the interests of justice permit it to be done. We accordingly allow this point to be raised on behalf of the appellant.
8. In Halsbury's Laws of England, third edition, volume 4, pages 130-1, paragraph 365, the definition of common carrier is:
'To constitute a person a common carrier he must be ready to carry for hire as a business and not as a casual occupation. It is essential that he should hold himself out as being ready to carry goods for any person or to carry any passengers no matter who they may be. If he carries for particular persons or certain passengers only he is not a common carrier, and the relationship between him and the owner of the goods or the passengers is one of special contract. If he retains a right of selection as to whom or what he shall carry he is not a common carrier.'
The definition given by Story in his book on Bailment's (9th edition) is
'one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.'
This definition was adopted by Wilde, C. J., in Benett v. Peninsular and Oriental Steam Boat Co., (1848) 6 CB 775. The Carriers Act of 1865 defines a carrier to mean:
'a person, other than the Government engaged in the business of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately.'
This definition is taken from the English Law.
9. In India General Navigation and Rly. Co. v. Dekhari Tea Co., ILR 51 Cal 304: 51 Ind App 28 : AIR 1924 PC 40 a question arose as to whether the appellants were within the definition. The appellants before the Privy Council who were common carriers between ports upon a river agreed with a Railway Company to assign vessels for the purpose of carrying from Port A to Port B. without calling at intermediate ports, goods consigned to the Railway Company for carriage, and there was no evidence that if persons other than the Railway Company had tendered to the appellants goods for carriage from A and B, these goods also would not have been carried in the vessels. It was held that the appellants were common carriers within the meaning of the Act. The Privy Council considered the definition and said:
'So far as the words 'for all persons indiscriminately' are concerned these simply mean that persons so engaged in and catering for business satisfy the demands or applications of customers as they come and arc not at liberty to refuse business.'
Then it made it further clear and observed:
'This arises from the public employment in which they are engaged. Apart from danger arising, say, from the nature of the goods received, the carrier is by his office bound to transport the goods as clearly as if there had been a special contract which purported so to bind him, and he is answerable to the owner for safe and sound delivery.'
It is significant that in that case there was no law which compelled the appellant to carry the goods as it did. The test adopted was
'whether there was evidence that if persons other than the Railway Company had tendered to the appellants goods for carriage from A and B, these goods also would not have been carried in the vessels'.
It was also held that that there was in that case a special contract did not make any difference. The test therefore is whether the transaction was of a casual nature or as a result of public employment.
10. This question was also considered by the Supreme Court on an appeal from the judgment of the Assam High Court in River Steam Navigation Co. v. Syam Sunder Tea Co. : (1962)IILLJ498SC . The Supreme Court laid down a test for determining the question, and the test is,
'what he publicly professes. The public profession may be made apparent by a public notification or by actually indiscriminately carrying all goods, such profession may be limited to transport of particular kinds of goods and/or may be limited to one particular route and/or to particular places.'
It was held in that case by the High Court that the appellant Company was a common carrier and the finding was confirmed by the Supreme Court. It was observed that there was no evidence that similar offer was refused, by the Company to any one.
11. The question therefore has to be approached from this aspect, and one very important and one very important and relevant consideration is the provisions of the Motor Vehicles Act. It is admitted that respondent No. 2 holds a permit of a public carrier under the Motor Vehicles Act, 1939. That Act classifies carriers into public carriers and private carriers. In Sub-section (22) of Section 2 of the Act, 'private carrier' has been defined to mean
'an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport or who uses the vehicle for any of the purposes specified in Sub-section (2) of Section 42.'
The rules under the Act prohibit a private carrier to carry (some?) one else's goods either gratis or for reward. The definition does not apply in the present case.
'Public carrier' is defined to mean,--'an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods for another person at any time and in any public place for hire or reward............'
The definition leaves no room for doubt that a public carrier exercises a public employment and not a private one. This is made more clear if one refers to the particulars which he must supply under Section 54 of the Act in the application for a public carrier's permit. These particulars are:
'(a) the routes on which or the area in which it is intended to use the vehicle:
(b) * * * * (c) the manner in which it is claimed that a public need will be served by the vehicle;
(d) such particulars as the Regional Transport Authority may require.........of the ratescharged by the applicant;
(e) particulars of any agreement or arrangement 'affecting in any material respect the provision within the region, of the Regional Transport Authority of facilities for the transport of goods for hire or reward, entered into by the applicant with any other person by whom such facilities are provided.........' .
12. Section 55 lays down matters to be taken into consideration while' granting such a permit. They are:
'(a) the interest of the public generally;
(b) the advantages to the public of the service to be provided and the convenience afforded to the public by the provision of such service;
(c) the adequacy of existing road transport services for the carriage of goods upon the routes or within the area to be served and the effect upon those services of the service proposed;
(d) the benefit to any particular locality or localities likely to be afforded by the service
(e) the need for providing for occasions whenvehicles are withdrawn from service foroverhaul or repair; and * * * *'
13. These provisions show that it is a matter of public employment that a licence is granted and not for doing the transport work for only a particular individual or individuals casually. The words 'at any time and at any place' in the section have got considerable importance, and they indicate that without a legitimate excuse a public carrier cannot refuse to carry the goods. If he does so because he wants exorbitant charges or for some other unjustifiable reason and representations are made to the transport authority concerned, his licence may be withdrawn.
14. It is true that in the case of passenger carriers there is a rule that he shall not refuse to do so, while there does not appear to be any rule in respect of the goods carriers. In our view, the absence of the rule does not really affect the question. The liability to carry the goods arises by Virtue of his profession as a public carrier under the Common Law, for, as said by Lord Holt, in Lane v. Cotton, (1701) 12 Mad 472:
'Wherever a subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him, and for that see Kelway, 50, If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest when his house is not full, an action will lie against him; and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier; and t have known such actions maintained, though the cases are not reported.'
These observations were cited with approval by Baron Parke in Johnson v. Midland Ry. Co., (1849) 18 LJ Ex 366 and he added:
'Perhaps there may be some doubt now in the case of the smith...... It is clear that in the caseof an innkeeper an action will lie. There has never been any doubt about the liability of a carrier to carry according to the profession which he has made to the public.'
Compulsion is by common law because he exercises a public employment. Though for improper refusal he is liable to indictment, there does not appear to be a single case of a conviction on any such indictment: see note (a), Halsbury's Laws of England, third edition, volume 4, page 137. In this country there can be no prosecution for a refusal, since it is not made an offence. Obligation to carry may however be enforced in different ways, such as for example, a suit for damages for refusal to carry by cancellation of the public carriers permit. The District Judge, it appears to us, has not applied the proper test.
15. The evidence of the defendants themselves, clearly shows that they were carrying goods as public carriers. Defendant No. 1 says that he used to ply the truck on hire for carrying the goods of others as a public carrier. To the same effect is the evidence of defendant No. 2. The evidence of the plaintiffs witnesses shows that these goods were not the only goods that were carried in the truck on that fateful day, there were grain bags also. This is deposed to by Hussainbhai (P. W. 1), Bhayyalal (P. W. 2) and Babulal (P. W. 3). There is no evidence on behalf of the defendants that they ever refused to carry anyone's goods or that such a right was reserved by them in the application made by them for the permit of a public carrier. We doubt very much that if any such reservations were made, defendant No. 2 could have secured a permit as a public carrier. We therefore hold that defendant No. 2 was a common carrier and both the defendants would be liable as such.
16. On behalf of the respondents, it has been emphasised that 'public carrier' as denned in the Motor Vehicles Act is not synonymous with 'common carrier'. On behalf of the respondents Mr. Chandurkar attempted to bring his case within Balfast Ropework Co. v. Bushell, (1918) 1 KB 210 where the defendant described his business as that of an automobile engineer and haulage contractor. He owned two lorries intended for sale. With these and others which he hired when necessary he carried sugar from Liverpool to Manchester. At Manchester he invited offers of goods of all kinds, except machinery, for carriage to Liverpool and other places at charges varying with the state of his business. The offers made were either rejected or accepted if suitable to him as to goods or as to the rates. It was held that he was not a common carrier. He also relied upon Scarify v. Farrant, (1875) 10 LREx. 358. But that again is a case where there was a special contract, and as pointed out by Denman, J. the terms of business conducted by the defendant showed that the defendant did not so deal with the public as to undertake to carry goods in the absence of an agreement as to terms of carriage. Moreover, in that case the liability of the parties was governed by a special contract. These cases therefore do not help the contention of the respondents.
17. It is also argued that the question whether defendant No. 2 was a common carrier was one of fact and would not be open in second appeal. It will appear from the discussion above that the decision of the question depended upon the proper law to be applied to the facts of the case and thereforethe question would be open for consideration in second appeal and therefore in Letters Patent appeal.
18. The next question is about liability in the absence of proof of negligence. By law common carriers are liable as insurers of goods and they are responsible for any injury caused to the goods delivered to them, however caused except only by act of God or action of alien enemies. The principles are well established and apply in India. No proof of negligence is in such a case needed and the defendant has to establish the exception: see 18 Ind App 121; ILR (1954) GAU 433: AIR 1955 GAU 65; ILR (1961) Mad 1091: AIR 1962 Mad 44 and : AIR1959MP351 .
19. The next question is whether both the defendants are liable. The truck is admittedly owned by defendant No. 2. He was admittedly carrying on the business of transport of goods. Defendant No. 1 is his close relation and he allowed him to carry on the business by means of the same truck. Though defendant No. 2 maintains accounts, he has not produced them in support of his allegation that the truck has been given to defendant No. 1 on hire purchase agreement. Though the agreement is alleged to be of 12-11-1948 no steps are taken to transfer the ownership. The Court of facts was therefore justified in coming to the conclusion that the business was of defendant No. 2 and defendant No. 1 was only managing on his behalf. In second appeal the learned Judge could not have reviewed facts and held otherwise. Agency being established, it does not affect the question of liability even if the plaintiff did not know that defendant No. 2 was the owner and defendant No. 1 was only an agent. We are of the view that both are liable.
20. We accordingly allow the appeal and restore the decree of the District Court. In the circumstances of the case, however, we direct the parties to bear their own costs.
21. Appeal allowed.