1. This appeal and revision arise out of the appellate judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bargarh and dismissing the plaintiff's suit for compensation. As the appellant petitioner was not sure whether a second appeal would he, he took the additional precaution of filing a civil revision also. Both the appeal and revision are dealt with in this judgment.
2. The facts found are these. The appellant delivered a parcel weighing 211/2 tolas containing two gold ornaments at the Sub-Post Office, Bargarh, on 16-6-1958 and insured the same for Rs. 1,000/-. The addressee was one G. Kamayya Dora, village Bhairipuram, P. O. Sompeta in the district of Srikakulam in Andhra State. When it was delivered to the addressee it was noticed that one of the gold ornaments was missing and in the acknowledgment form the weight of the packet was shown only 18 tolas. After some correspondence with the postal authorities and an abortive attempt to start a criminal case the petitioner instituted the suit under appeal on 24-4-1961, mainly against the Union of India, representing the Postal Department, claiming damages to the extent of Rs. 665/- for the loss of one of the two gold ornaments weighing about 31/2 tolas
3. The learned Munsif decreed the claim for Rs. 388.50 nP. On appeal the learned Subordinate Judge while agreeing with the trial court as regards the facts of the case including the loss of a gold ornament weighing 31/2 tolas, held that the suit was barred under Article 30 or 31 of the Limitation Act, because the Post Office was a 'carrier'; and the suit was admittedly not brought within one year from the date of loss or damage of the packet.
4. Thus, the sole point for consideration is whether, when a packet is sent by insured post the Post Office is a 'carrier' within the meaning of article 30 or 31 of the Limitation Act of 1908.
5. The expression 'carrier' has not been defined in the Limitation Act, but from the definition of the expression 'common carrier' occurring in the Carriers Act 1865, it is reasonable to infer what 'carrier' means. In the Carriers Act 'common carrier' is
'a person other than Government engaged in the business of transporting for hire, property from place to place by land or inland navigation for all persons indiscriminately'
It follows from the aforesaid definition that a carrier is a person engaged in the business of transporting for hire property from one place to another by land or inland navigation and if he engages in this business for all persons indiscriminately, he becomes a common carrier.
6. So far as the Post Office is concerned, it carries insured parcels and other articles for all persons indiscriminately. If it is to be held to be carrying those articles for hire, it would necessarily follow that it is a common carrier -- though it may not be a common carrier for the purposes of the Carriers Act, because Government is expressly excluded from the scope of the definition in that Act.
7. That leads to the most important question for decision namely whether the Postal Department, while performing their duties of carrying mails, insured articles etc. perform governmental functions subject of course to the provisions of the Indian Post Office Act, 1898.
8. The English law on the subject has been stated in Halsbury, III Edition, Volume 30, page 148 (paragraph 239) as follows:
'The post office is a branch of the public service and accordingly the Post-master General is not a common carrier. Acceptance of letters by him, and packets for transmission through the post does not give rise to any contractual relationship between him and the owner of the letter or packet.'
This view was based mainly on the well known decision of Lord Mansfield in Whitfield v. Le Despencer, (1778) 2 Cowp 754. The reasons given for taking this view may be quoted in the very words of Lord Mansfield:
'The Postmaster has no hire: enters into no contract: carries on no merchandise or commerce. But the Post Office is a branch of the revenue and a branch of the Police created by an Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public arising from the fund. As a branch of the Police, it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under Government and entrusts the management and direction of it to the Crown and officers appointed by the Crown. There is no analogy therefore between the case of the Postmaster and a common carrier. The branch of revenue and the branch of Police are to be governed by different officers. The superior has the appointment of inferior officers; but they give security to the Crown. One requisite is that they shall take the oaths taken by all public officers; another strong guard is that they are made subject to heavy penalties and this is carried so Far that what, in the case of a common carrier or any other person would be only a breach of trust; is in them declared to be a capital felony ........ If the man who receive a penny to carry letters to the post office loses any of them, he is answerable; so is the sorter in the business of his department so is the post-master for any default of his own ...... The case of the postmaster, therefore is in no circumstance whatever similar to that of a common carrier'.
The aforesaid view of Lord Mansfield has been followed in succeeding decisions in England--I need refer only to Bainbridge v. Postmaster General, (1900) 1 KB 178 and Triefus and Co. Ltd. v. pOST Office, (1057) 2 All ER 387.
9. If the provisions of the Indian Post Office Act are carefully scrutinised, it will be noticed that the various tests laid down by Lord Mansfield to show that the post office is a mere department of the State and not a common carrier are all present in the Indian Act also. Section 6 of that Act says that Government shall not incur any liability by reason of loss or delay or damage to any postal article, in the course of its transmission by post, except in so far as in express terms that liability is undertaken by Government as provided in the succeeding Sections of that Act: and no officer of the Post Office shall incur any liability unless he has caused the same frandulently or by his wilful act or default.
Though postage is not expressly defined as revenue', nevertheless the use of the expression 'fees' in some of the provisions--such as Sections 8(d), 29(2)(b), 30(b), 32(2)(c) and 34 of the Act seems to indicate that though postage and fee are charged for specific services rendered, nevertheless they form part of the revenue of the Union Government. Moreover, the postal authorities have extensive police powers of opening and examining any packet and withholding delivery of certain articles transmitted by post, including, in extreme cases, destruction of the same or handing them over to the Customs authorities--see Sections 23, 24, 24(a), 25 and 26--They are also subject to heavy penalties prescribed in Chapter X of the Act, for certain acts of misconduct. Thus, on the very principles laid down by Lord Mansfield it can be held, on a mere construction of the provisions of the Indian Post Office Act that the Postal Department is not a common carrier and that it does not enter into any contractual obligations while accepting letters and packets for transmission by post.
10. It is true that by the express provisions contained in Section 33 of the Post Offices Act the post office is bound to pay compensation not exceeding the amount for which the postal article has been insured, to the sender thereof for the loss of the postal article or its contents or for damage caused to it in the course of its transmission by post. But this liability does not arise by virtue of the general law of contract but by virtue of the express provision contained in that section read with Section 6 of the Act.
11. The learned Government Advocate relied on a decision of their Lordships of the Supreme Court reported in Commr. of Income-tax v. P. M. Rathod and Co., AIR 1959 SC 1394 where it was held that where a seller sends goods to the buyer under the V. P. P. system the post office becomes as agent of the seller For the recovery of the price and if it fails to recover the price and delivers the goods it is liable for damage to the seller. The learned Government Advocate argued that this decision would impliedly show that Lord Mansfield's dictum about the Postmaster not entering into a contract cannot be applied with full force in India, and that a contractual relationship does not exist between the sender of the packet and the postal department. I may quote the following passage in that judgment:
'This shows that 'whatever be the jural relationship between the seller and the post office' inrespect of carriage of goods sent by the seller'under the V. P. P. system' it becomes an agent ofthe seller for the recovery of the price.'
The words underlined (here into ' ')would show that their Lordships expresslyleft open the wider question of juralrelationship between the sender of packets andthe post office. The peculiar liability of the postoffice as the agent of the seller where goods aresent by V. P. P. system are found in Section 34 of theIndian Post Office Act which casts on the postaldepartment the duty to recover the price from thebuyer and to pay the same to the seller. It maybe that, on a construction of this provision theirLordships held that so far as recovery of the pricefrom the buyer was concerned the post office wasin the position of an agent of the seller. But their Lordships have not gone further and stated that in respect of transmission of all packets either by registered post or insured post, the post office is in the position of an agent of the sender. This question did not arise for consideration in that ease and was left open.
12. In the instant case, however, we are concerned with the jural relationship between the sender of the insured packet and the Postal Department, and this is governed by Section 33 read with Section 6 of the Indian Post Office Act, In the absence of any authority to the contrary, I see no reason why the principles laid down in English Law should not be applied here--see in this connection the observation of Dhawan, J. in the Allahabad High Court case reported in Union of India v. Firm Ham Gopal Hukam Chand, AIR 1960 All 672.
13. It will also be useful at this stage to compare the corresponding provisions of the Indian Railways Act, 1890. While passing that Act the Legislature took the special precaution of expressly saying in Section 72 (prior to the amendment of 1961) that the responsibility of the Railway was to certain conditions, that of a bailee under Sections 152 and 161 of the Indian Contract Act. The Indian Post Office Act was passed by the same legislature in 1898 (eight years later) and if the intention of the Legislature was that there was contractual relationship between the Postal Department on the one hand and the person who transmits a package by post, on the other, they would surely have inserted an appropriate provision on the lines of Section 72 of the Indian Railways Act. The deliberate omission to insert such a provision leads to the reasonable inference that the Legislature intended that the liability between the post office and the sender of the package by post is not of a contractual nature but is purely statutory.
14. I would accordingly take the view that the insured article in question was not carried by the Postal Department for hire and consequently the post office is not a 'carrier'. Articles 30 and 31 of the Limitation Act cannot therefore apply.
15. Once it is held that there is no contractual obligation between the post office and the sender, the appropriate article of the Limitation Act applicable to the present case would perhaps be the latter part of Article 65 of the First Schedule which refers to compensation on the happening of a specified contingency. Here the contingency is the damage caused to the goods during transmission for which the liability is fixed on the post office by Section 33 of the Indian Post Office Act. The period of limitation would, therefore, be three years and as the suit in the present case was brought within three years of the date of delivery of the insured article at Bargarh Post Office, it must be held to have been filed within time. If that article be held not to apply, the residuary Article 120 will apply and the period of limitation therein prescribed is six years. It is, however, unnecessary to decide this question finally here because, in any case the period for limitation cannot be less than three years.
16. I should further add that the new Limitation Act of 1963 has no application to the present case though, there, the period of limitation for a carrier has been extended to three years as in any other money claim--see Article 10 of that Act.
17. As the quantum of compensation payable to the plaintiff-appellant namely, Rs. 388.50 nP has not been challenged, I would accept that figure as estimated by the learned Munsif.
18. For these reasons, the appeal is allowed, the judgment and the decree of the lower appellate Court are set aside and the judgment and decree of the learned Munsif arc restored, with costs throughout.
19. Hearing fee is assessed at Rs. 100 (Rupees one hundred only).
20. I agree.