1. This appeal by the plaintiff is directed against the judgment and decree of the learned Additional Civil Judge, Allahabad, dismissing his suit.
2. The facts involved in this appeal lie within a narrow compass and for the most part are not in dispute. It appears that on the 4th of September 1948 Tugun Ram, proprietor of Tugun Rarn Shriniwas purchased 79 bags of betel nuts from a place known as Bhola in East Pakistan and booked the same with the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd,, defendants 2 and 3, at Bhola for carriage to, and delivery to him, at Allahabad. When the consignment was delivered to the plaintiff at Allahabad, it was found that 37 bags of betel nuts, weighing 74 maunds were missing, and of the remaining bags one had been cut and restitched and on weighing was found to be short by 1 maund and 4 seers for which the necessary short certificate was issued to the plaintiff. Thus the plaintiff received 75 maunds 4 seers less of betel nuts which he alleged caused him a loss of Rs. 9169/3/- at the prevailing market rate of Rs. 122/- per maund. As the consignment passed over routes operated upon by the River Steam Navigation Company Ltd., and the India General Navigation and Railway Company Ltd., i. e. defendants 2 and 3, and the E. I. R. administration, i.e. defendant No. 1 in addition to the East Bengal Railway, Pakistan, the plaintiff after giving the requisite statutory notices to defendants 1 to 3 brought the suit giving rise to this appeal for the recovery of Rupees 9169/3/- from them.
3. All the defendants contested the suit, but as in' this appeal the plaintiff pressed his claim against defendants 2 and 3 only, it is unnecessary to set out the defence filed on behalf of defendant 1, i.e. the A. I. R. administration. Defendants 2 and 3 filed a joint written statement and their case was that under their agreement with the plaintiff they were liable for the consignment only so long as it was in their custody and as they had handed it over intact to the East Bengal Railway, they were not liable for any loss which might have occurred subsequently. It was also pleaded that as under the same agreement the plaintiff had undertaken to deal with the East Bengal and the East Indian Railways as Principals and the said defendants as their agents had further expressly agreed to absolve the defendants of all liability for loss etc. to the consignment whilst in the custody of the railways and as the loss took place when the consignment was in the custody of one or other of the railways referred to above, the said defendants were not liable for the same.
4. The trial Judge found (1) that the loss occurred during the carriage of the consignment over the East Bengal Railway, (2) that none of the defendants was liable for that loss and (3) that as the East Bengal Railway could not be sued, the suit had to fail. Feeling aggrieved by that decision, the plaintiff preferred the aforesaid appeal to this Court.
5. The appeal first came up for hearing before Gyaneridra Kumar, J., and it was contended before him that the trial Judge's view regarding the liability of defendants 2 and 3 for the loss caused to the consignment whilst in the custody of the East Bengal Railway was erroneous. The contention found favour with the learned Judge -- as is apparent from hisReferring Order -- but finding himself faced with the decision of Dwivedl, J. in First Appeal No. 166 of 1955 (All), in which on similar facts a contrary view was taken, he had So option but to refer the appeal to a larger Bench and it is in these circumstances that this appeal has come up before us for hearing.
6. For the proper appreciation of the rival contentions canvassed before us one more fact requires to be mentioned. It appears that at the time the plaintiff booked the consignment at Bhola, he executed a Goods Forwarding Note, which, inter alia, contained the following condition:--
Condition No. 11.
'The Company undertake to carry goods over their own transport system only. Where goods are accepted by the company for carriage beyond their own transport system, and where goods are either wholly or partly carried by other carrying administration, in the matter of carriage beyond the company's own transport system, the company act merely as agents for such carrying administrations. The contract of carriage shall be deemed to have been entered into between the consignor (and the consignee) on the one hand and the one or other of the various carrying administrations, including the Company, on the other hand, that may at any material time be in control or possession of the goods for carriage to destination and/or delivery to the consignee, and that any liability for loss, damages, destruction, partial or total deterioration, detention and delivery of the goods shall solely rest on the respective carrying administrations in whose charge the goods may have been placed at the time such loss, damage, etc., is found to have arisen. In case of goods accepted by the Company for carriage beyond their own system of transport the consignor (and the consignee) shall be deemed to have agreed that the Company has accepted such goods on the footing that the consignor (and the consignee) has entered Into a series of contracts with the different carrying administrations, and that the Company' will not be liable for any loss, damage, etc. which may happen when the transit over the Company's system of transport is over and when the goods are not directly under their control.'
7. Great reliance was placed on behalf of defendants 2 and 3 on this condition and it was contended that in virtue thereof they held themselves out as common carriers only so far as their own transport system was concerned and that thereafter they ceased to be common carriers and became the agents of the other transport systems, and as such were not liable for any loss, destruction etc. which might occur on transport system other than theirs. On behalf of the plaintiff, it was however, vehemently contended that notwithstanding the said condition the status of defendants 2 and 3, vis-a-vis those railways remained that of Principal and further that as defendants 2 and 3 were common carriers under the Carriers Act (Act 3 of 1865), they remained liable, under Section 8 of that Act, for any loss occasioned by the negligence etc. of those railways. Defendants 2 and 3 admitted that they were common carriers but their case was that they were entitled under Section 6 of the Carriers Act to limit their liability by entering into a special contract with the consignor, I. e. the plaintiff and as they had done it by including condition No. 11 in the Goods Forwarding Note, they were not liable for the loss caused to the consignment by the East Bengal Railway.
8. Now, from what has been said above, it is clear that the first and the foremost matter which falls for our consideration is whether defendants 2 and 3 are in law common carriers of the consignment for the entire distance, i. e. from Bhola to Allahabad or in view of condition No. 11, contained in the Goods Forwarding Note, from Bhola to Khulna where they handed over the consignment to the East Bengal Railway. In order to decide this question reference has to be made to the definition of 'common carrier' as contained in Section 2 of the Carriers Act. According to that definition,
'Common carrier' denotes 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.'
Even a cursory glance at this definition would show that the main attribute of a common carrier is that he transports for hire property for all persons indiscriminately. The question whether in a particular case a carrier is a public i. e. a common carrier or a private carrier came up for the decision of the Supreme Court in River Steam Navigation Co. Ltd. v. Shyam Sunder Tea Co. Ltd. 0044/1961 : (1962)IILLJ498SC , and that Court after quoting the following passage from Ingate v. Christie, (1850) 3 Car and Kir 61, viz.
'Everybody who undertakes to carry for anyone who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for everyone. If a man holds himself out to do it for everyone who asks him, he is a common carrier, but if he does not do it for everyone, but carries for you and me only, that is a matter of special contract.'
observed thus: --
'The question in any particular case whether the carrier was a common carrier or a private carrier has to be decided on the ascertainment of what he publicly professes. This profession may be by public notice or by actual indiscriminate carrying of goods. The profession to carry goods indiscriminately may be limited to particular goods or to particular routes or even as to two or more specified points.
The mere fact that the carrier is engaged in the transport of goods from certain places on their Steamer Service to other place does not necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a common carrier. It is necessary to examine the nature of the public profession made by the carrier with regard to the carriage of goods undertaken by it elsewhere.'
9. Thus according to the aforesaid decision the question whether a carrier is a private or a common carrier depends upon the nature of 'the public profession made by the carrier with regard to the carriage of goods undertaken by it elsewhere'. It follows, therefore that the mere fact that a common carrier is engaged in the transport of goods from places on its transport system to places outside it would not be sufficient to justify the conclusion that whatever carriage it may undertake elsewhere is also in his capacity as a common carrier. We have, therefore, necessarily to ascertain the nature of the public profession made by defendants 2 and 3 in regard to the carriage of goods outside their transport system, i. e. from Khulna to Allahabad -- since it isPossible for a common carrier to limit its public profession to the carrying of goods indiscriminately 'to particular goods or to particular routes or even as to two or more specified points.' Now, the only evidence on this point consists of the affidavit filed by Mr. Walter Duncan Morgan, the Superintendent of the Joint Claims Department of defendants 2 and 3 in answer to the Interrogatories carved on him by the plaintiff.
Mr. Morgan stated in answer to Interrogatories Nos. 2 to 4 that for the last 10 years --i. e. since about 1941 -- every shipper i. e. consignor had to fill the Goods Forwarding Note containing Condition No. 11 (which has been quoted in an earlier part of this judgment) and if he did not agree to fill that form his goods were not received for carriage. He also stated that this condition was introduced 'in order to let the shippers know clearly the extent of transport undertaken by defendants 2 and 3 as common carriers and the nature of service to be rendered by them in the matter of transport falling beyond, i. e. outside their own transport system'. It is significant to note that Mr. Morgan has not said a word that defendants 2 and 3 ever refused to accept the goods of a shipper who was prepared to sign She Goods Forwarding Note; that is to say that defendants 2 and 3 were always prepared to carry the goods of shippers who agreed to fill the Goods Forwarding Note without making any discrimination between one shipper and another. In this connection we might mention that the Supreme Court also in the case of Steam Navigation Co. Ltd., 0044/1961 : (1962)IILLJ498SC attached great weight to this circumstance for holding that the Steam Navigation Co. Ltd.was a common carrier. It follows, therefore, that defendants 2 and 3 were as much common carriers for place falling beyond their transport system as for place lying within it.
10. We shall now proceed to the consideration of the question whether the introduction of Condition No. 11 in the Goods Forwarding Note has made any difference in their position as a common carrier. The answer to this question depends upon the construction of Sections 6 and 8 of the Act. These sections read as follows:
'Section 6. The liability of any common carrier for the loss of or damage to any property delivered to him to be carried, not being of the description contained in the Schedule to this Act, shall not be deemed to be limited or affected by any public notice; but any such carrier, not being the owner of a rail-road or tram-road constructed under the provisions of Act 22 of 1863 (to provide for taking land for works of public utility to be constructed by private persons or Companies, and for regulating the construction and use of works on land so taken) may, by special contract, signed by the owner of such property so delivered as last aforesaid or by some person duly authorized in that behalf by such owner, limit his liability in respect of the same.'
'Section 8. Notwithstanding anything herein before contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the * * * criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of Section 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants.'
11. We might mention here in passing that prior to the coming into force of the Act containing the aforesaid sections, the law by which the liability of the common carrier was regulated was the common law of England. The extent of this liability is to be round summed up in the speech of Lord Dunedin in London and North Western Rly. Co. v. Richard Hudson and Sous, Ltd., 1920 AC 324, as follows:--
'That a common carrier is an insurer of goods entrusted to him for carriage, and can only excuse himself on the ground of act of God, or of inherent vice (in which expression I include bad packing) of the goods themselves is axiomatic. Now Lord Mansfield in -- 'Forward v. Pittard' (1785) 1 TR 27 at p. 33, speaks of this obligation on the carrier's part as an obligation independent of the contract. By that I understand that it is not an adjected term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the owner of the goods, whoever he may be. For indeed in many common cases it would seem to be inaccurate to speak of a contract of carriage as being made between the carrier and the consignee.'
Presumably with a view to giving some relief to the common carriers that in 1965, the Act was passed. Section 6 of that Act enables a common carrier, not being one of the prohibited class mentioned therein, to limit his liability in regard to the property delivered to him for transport by entering into a special contract to that effect with the owner of such property. So far as this section is concerned itis of the widest amplitude and would seem to apply to all kinds of liabilities. Hence if there had been nothing else in the Act to circumscribe the scope and ambit of Section 6, there would have been great force in the contention of the learned counsel for defendants 2 and 3 that Condition No. 11 in the Goods Forwarding Note confined their liability for destruction, loss etc. to the plaintiffs' goods to their transport system only. But that, however, is not so because of Section 8. That section begins with the words 'notwithstanding anything hereinbefore contained', and then goes on to declare 'the common carriers liability for loss or damage caused by the criminal act or negligence of the carrier or any of his agents or servants.'
The opening words of this section make it perfectly clear that its provisions override those of Section 6. In other words, that whatever other kinds of liabilities the carrier may be able to limit by special contract with the owner of the property, he cannot limit his liability for the criminal act or negligence of himself or any of his agents and servants. This prohibition is a statutory prohibition, with the result that if a special contract contains a stipulation in derogation of it, it would be void to that extent as offending Section 8. See River Steam Navigation Co. Ltd. v. Jamuuadas Ram Kumar, : AIR1932Cal344 , and River Steam Navigation Co. Ltd. v. Shyam Sunder Tea Co. Ltd., AIR 1955 Assam 65. We shall refer to the decisions cited by the learned counsel for defendants 2 and 3 later. The validity of the latter part of Condition No. 11 therefore, depends upon the determination of the question whether the other transport systems in question were in fact and law the agents of defendants 2 and 3 or they are the latter's disclosed or known Principals as stated in Condition No. 11.
If the other transport systems--in the present case the East Bengal Railway and the East Indian Railway--were the Principals, then defendants 2 and 3 would not be liable for their criminal act or negligence under Section 8. but if the position is otherwise then defendants 2 and 3 would be liable for the loss caused to the plaintiffs' goods due to negligence of their agent i.e., the East Bengal Railway.
12. Now, so far as the evidence on this point is concerned, the affidavit filed by Mr. Morgan in answer to the Interrogatories served on him by the plaintiff shows that there was no specific authority by the Railway to defendants 2 and 3 to act as their agents, but as the railways concerned always accepted the goods covered by the said defendants goods Forwarding Note, for carriage on their systems, they had impliedly agreed to Condition No, 11. It further shows that no letter of authority was needed for acting as agents as agency was implied from the course of conduct. As against this there is the evidence of Mr. H. N. Roy, Special Attorney for the Indian Union representing the East Indian Railway. Mr. Roy stated that the Dominion of India or the Indian Union had never appointed defendants 2 and 3 as agents for the Railways. From theevidence summarised above it is clear that defendants 2 and 3 have, at all events, failed to prove that at the relevant time they were the agents of the East Indian Railway and the recital to the contrary in Condition No. 11 is, therefore, not correct. The position in regard to the East Bengal Railway is not so clear but having regard to Mr. Morgan's statement that as the agency in the case of the Railways was an implied one, it would not be unreasonable to hold that it must have been the same as in the case of the East Indian Railway.
In any case it was for defendants 2 and 3 to have proved their assertion in that regard as, in law, the East Bengal Railway would be the agent and not the Principal of defendants 2 and 3, as held by a Full Bench of this Court in Chunni Lal v. Nizam's Guaranteed State Railway Co., (1907) 4 All LJ 80 (FB). The headnote of this case which contains both the facts and the ratio decidendi succinctly and accurately reads thus;
'Where a railway company receives and undertakes to carry goods from a Station on its railway to a place on another distinct railway with which it communicates, this is evidence of contract with the receiving company for the whole distance, and the other railway company will be regarded as its agent and not as contracting with the bailor.
A receipt note given by a railway company for goods to be sent to a place on another railway and there to be delivered for one entire sum is one entire contract for the whole distance and constitutes an entire contract with the railway which gave the receipt note.
The Nizam's State Railway Company received certain goods to be delivered to the plaintiffs at Agra Station through the Great Indian Peninsula Railway Company, and received a certain amount for the wagon load. At Agra, the Great Indian Peninsula Company refused to deliver the goods unless a further amount was paid at maund rate. The plaintiffs paid the amount under protest and bought a suit for recovery of the amount against both the railway companies. Held that the Nizam's State Railway Company being the Principals and the Great Indian Peninsula Railway Company being their agents the former were liable in damages to the plaintiffs. Held further that the Railway Company were not competent to alter the contract between the parties and charge per maund rate instead of wagon rate as settled.'
The ratio of this case was unquestioningly accepted by this Court in Firm Moti Lal Raghubar Dayal v. Bombay Port Trust Railway : AIR1939All649 , The same view we might mention has been taken in : AIR1932Cal344 . also.
13. We shall now refer to the cases cited on behalf of defendants. The first case is the unreported decision of Dwivedi, J. in River Steam Navigation Co. Ltd. v. Shri Ram Shanker Lal, FA No. 166 of 1955 dated 16-10-1962 (All). This decision, it will be recalled, is the same which necessitated the present reference to us. In this case Dwivedi, J. held that inview of Condition No. 11 the Railways must be held to be the Principals and as such Section 8 did not apply to the carriers of that case who happened to be no other than the present defendants 2 and 3. No assistance can be derived from this case inasmuch as there is no reference to the two authorities cited by us above.
14. The other decisions are Chandubhai Fulabhai, v. River Steam Navigation Co. Ltd. : AIR1953Cal547 , Indian General Navigation and Railway Co- Ltd. v. Krishna Kanta Das, AIR 1949 Assam 25, and Jiauddin Mia v. Indian General Navigation and Rly. Co. Ltd., AIR 1956 Assam 122. We regret we are unable to share the view taken therein. In the Calcutta case it was assumed that the position of the River Steam Navigation Co. Ltd., the common carrier, was that of an agent for known principals. In the 1949 Assam case, (AIR 1949 Assam 25), the decision proceeds on the supposition that the Indian General Navigation and Railway Co. Ltd. and another--the common carriers--'must have had some arrangement with the R. and A. Railway by which they were to act as forwarding agents for the B. and A. Railway.' In 1956 Assam, (AIR 1956 Assam 122), the decision proceeds on the basis that it was 'immaterial what the railway companies had to say but as between the consignor and the steamer companies they were bound by the agreement entered into between them and as such the liability was limited to Clause No. 11 of the Goods Forwarding Note. .........'. This decision isbased on the assumption that Clause or Condition No. 11 was something sacrosanct between the parties, notwithstanding what the correct position in fact and law may be and notwithstanding that its effect was to render the liability imposed on the common carrier under Section 8 illusory, at the instance of a party exercising a dominant position in the matter.
In our judgment the mere fact that Condition No. 11 is agreed to by the plaintiff would not make it inviolable for the very obvious reason that parties cannot by agreement create a fiction of law and make a person who is in fact and law an agent a Principal or vice versa. We are, therefore, unable to agree with 1956 Assam also. Thus on final analysis, the position in the present case appears to be that while on the question of fact defendants 2 and 3 have failed to prove that they were the agents of either the East Bengal or the East Indian Railways, in law they are the Principals and not the agents of those railways. They are, therefore, liable for the loss occasioned to the plaintiff as a result of the negligence of their agent--the East Bengal Railway.
15. Section 9 of the Act lays down that in a suit for loss, damage, or non-delivery of goods entrusted to a common carrier the plaintiff is not required to prove negligence or criminal act of the carrier or his agents or servants. Under this section, therefore, once loss etc. is proved, negligence or criminal act is presumed and it then becomes the duty of the common carrier to rebut that presumption, failing which, the suit has to be decreed. In this case the plaintiff has proved the damagessustained by him, defendants 2 and 3 have not led any evidence to rebut the statutory presumption arising against them under the aforesaid section, with the result that the suit must be decreed in full.
16. As stated earlier, the appeal was not-pressed against defendants 1 and 4 and it is accordingly dismissed against them.
17. The result, therefore, is that we allow this appeal in part, set aside the judgment and decree of the Court below against defendants 2 and 3 and decree the suit against them with costs of both the courts. The appeal against defendants 1 and 4 is dismissed with costs of both the Courts to defendant 1 only.