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Murari Lal and ors. Vs. Delhi Cloth and General Mills Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 132D of 1966
Judge
Reported in18(1980)DLT67
ActsCarriers Act, 1865 - Sections 10; Evidence Act, 1872 - Sections 164
AppellantMurari Lal and ors.
RespondentDelhi Cloth and General Mills Co. Ltd. and ors.
Advocates: D.D. Chawla,; C.L. Choudhry and; K.S. Bindra, Advs
Cases ReferredSee Dabbs v. Sea Men
Excerpt:
.....section 164 of indian evidence act, 1872 - appeal against trial court holding carriers liable for loss of goods - section 10 does not prescribe any specific form in which notices are to be given - notice shall be given to carrier before institution of suit and within six months of time when loss comes to knowledge of plaintiff - plaintiff's had informed carriers about loss of goods - notice has to be interpreted in common sense way - hyper-technicality and hairsplitting ought not be encouraged - notice served was valid - appeal liable to be dismissed. (ii) cross objections - respondent cross objection for decree for balance amount - if consignor declares goods are of certain value he cannot allege subsequently that goods were in fact of higher value - consignors declared value of goods..........issues were raised. the trial judge came to the conclusion that the carriers were liable for the loss of goods. he valued them at rs 31,941.39 and passed a decree for the said sum in favor of the mills and the insurance company. from his decision the carriers appeal to this court. the mills, on the other hand, have filed cross-objections claiming a decree for the balance amount of rs. 18,353.08 in respect of which the trial judge had dismissed the suit of the plaintiffs. (6) in their appeal the carriers have raised only one point. it is contended that the letter dated july 3, 1958, and counsel's notice dated august 23, 1958 do not satisfy the requirements of s. 10 of the carriers act 186 and, thereforee, the plaintiffs' suit was not competent. section 10 of the carriers act 1865 reads:.....
Judgment:

A.B. Rohatgi, J.

(1) This appeal raises the question of liability of a common carrier.

(2) In the month of June 1958 Delhi Cloth Mills Limited (Mills) entrusted 54 bales of cloth and conyarn to the Delhi Dehradun Transport Company (carriers) for carriage from Delhi to Calcutta. The carriers issued 6 goods receipts, particulars whereof are as under :

_______________________________________________________________________ Sl. No- O.R. No. Date Amount Exhibit No. in the case 1. 383 3.6.1958 Rs. 1500-00 Ex. P3 2. 399 4.6.1958 Rs. 7024-00 Ex. P4 3. 2008 5.6.1958 Rs. 9995-00 Ex. P5 4. 2011 5.6.1958 Rs. 3714-97 Ex. P6 5. 2034 7.6.1958 Rs. 4991-00 Ex. P7 6. 374 3.6.1958 Rs. 4716-42 Ex. P8 ___________ Total: Rs.31,941-39 ________________________________________________________________________

(3) The consigner of these goods was the Mills. The consignee was their branch manager at Calcutta. The carriers agreed to carry the goods for reward from Delhi to Calcutta and deliver them at the destination. They failed to deliver the consignment of 54 bales at the destination. When the goods did not arrive at Calcutta the Mills wrote to the carriers on July 3, 1958 (Ex. Public Witness Public Witness 3/1) about the non-delivery of goods. This letter reads :

'REGD.A.D. July 3, 1958. Delhi Dehradun Transport Co., G. B. Road, Delhi. Sub : Non-receipt of goods. We regret to say that goods delivered to you for being transferred to Calcutta under G.R. No. 383 A and 374 dated 3.6.58, 399A dated 4.6.58, 2011 dated 5.6.58 and 2034 dated 7.6.58 have not yet been delivered at destination. We thereforee send you our bills dated 30.6.58 and 2.7.58 relating to the above goods and request you to arrange payment of these at the earliest. Thanking you, Yours faithfully, sd/- Seth R.D. Podar, for D.C. & General Mills Co. Ltd.'

(4) On August 23, 1958 counsel for the Mills issued a formal notice of the loss claiming a sum of Rs. 50,294.47 from the carriers. The carriers did. not pay. The Mills brought a suit for the recovery of the said amount in the court of the subordinate judge. As the goods were insured with London and Lancashire Insurance Company Limited the insurance company was also added as a plaintiff.

(5) The carriers contested the suit. They denied their liability. A number of issues were raised. The Trial Judge came to the conclusion that the carriers were liable for the loss of goods. He valued them at Rs 31,941.39 and passed a decree for the said sum in favor of the Mills and the Insurance Company. From his decision the carriers appeal to this court. The Mills, on the other hand, have filed cross-objections claiming a decree for the balance amount of Rs. 18,353.08 in respect of which the trial judge had dismissed the suit of the plaintiffs.

(6) In their appeal the carriers have raised only one point. It is contended that the letter dated July 3, 1958, and counsel's notice dated August 23, 1958 do not satisfy the requirements of S. 10 of the Carriers Act 186 and, thereforee, the plaintiffs' suit was not competent. Section 10 of the Carriers Act 1865 reads:

'NOsuit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.'

(7) In accordance with this statutory requirement the Mills sent the letter dated July 3, 1958 which I have set out above. In this letter the Mills seem to have forgotten to mention the Goods Receipt No. 2008 dated June 5, 1958 of Rs. 9995.00. Nor was this receipt mentioned in counsel's notice dated August 23, 1958. It is on this limited ground that counsel contended that the carriers were not liable to pay this amount of Rs. 9995-00 to the Mills because no notice of loss was given to them as required by S. 10 of the Carriers Act.

(8) On the question of invalidity of the notice an issue was raised. The trial judge held that the notice served under the Carriers Act was not invalid. He repelled the argument raised before him and which has been repeated in this court.

(9) In my opinion, the trial judge was right. Section 10 of the Carriers Act does not prescribe any specific form in which the notice is to be given. All that it requires is that a notice of the loss of the goods shall be given to the carrier before the institution of the suit and within six months of the time when the loss came to the knowledge of the plaintiff. The object of notice is to afford the carriers an opportunity to reconsider the claim of the plaintiff and to make amends or settle the claim, if so advised, without recourse to litigation. The question is : Did the Mills inform the carriers about the loss of goods? I think the question must be answered in the affirmative. It is true that Goods Receipt No. 2008 is not mentioned in the letter dated July 3, 1958, nor is lawyer's notice. But the- object is to inform the carrier of the loss of goods. This was done by the Mills by sending bills dated June 30, 1958 and July 2, 1958 to the carriers asking them to arrange payment of the sum of Rs. 50)294-47. This amount was obviously, according to the Mills, the value of the goods which had been lost. Now when we turn to these bills we find that they give full particulars of 54 bales which were entrusted to the carriers for safe conveyance.. Of these 50 bales were of cotton piece goods and 4. bales were of cone-yarn. In the bills number of each bale was indicated and its price was also given. It is, thereforee, futile to say that the carriers did not have notice of the loss of the goods in respect of G.R. No. 2008. A notice has to be interpreted in a common sense way. Hypertechnicality and hairsplitting ought not be encouraged. Gone are the days of ancient hairsplitting technicalities of special pleadings. In agreement with the trial judge I, thereforee, hold that the notice served by the Mills on the carriers was not invalid.

(10) This is the only point that was argued before me in the appeal. This point is decided against the appellant. The appeal, thereforee, fails.

(11) I now turn to the cross-objections. The Mills have claimed a decree for the balance amount of Rs. 18,353.08. that trial judge refused to pass a decree for this amount The question before him was : What was the value of the lost goods He came to the conclusion that the value of the goods was Rs. 31,941.39. For this he made a decree in favor of the Mills and the Insurance Company. His approach was simple. He added the price of the goods shown in each of the seven goods receipt setforth earlier. The total came to Rs. 31,941-39. This he accepted as the value of the goods.

(12) Counsel for the Mills submits that the trial judge was in error in refusing to award the balance amount. He founds his argument on four bills (Ex. Public Witness PW25/1 to Ex. Public Witness Public Witness 25/4) dated June 30, 1958 and July 2, 1958 sent by the Mlils to the carriers after the loss had occurred. The value of the goods is shown as Rs. 50,294-47 in these bills. These bills are the basis of the Mills' claim. The carrier's case, on the other hand, before the court of first instance was that they had taken the price of the goods from the challans handed over to them at the time of the entrustment of the goods. This they included in the goods receipts which were issued to the Mills. These challans were produced by the Mills in court. Quite a large number of such challans were produced. But the dispute arose between the parties in respect of Seven challans around which the controversy centres.

(13) The controversy arose in this way. The Mills produced carbon copies of these seven challans (Ex. Public Witness Public Witness 20/1 to Ex. Public Witness Public Witness 20/7) after serving a notice on counsel for the carriers under 0. 12 rule 8 of the Code of Civil Procedure. The Mills called upon the carriers to produce in court the original of these seven challans which they had in their possession. The carriers did not produce the original documents. As a result the Mills become entitled to produce the carbon copies which they had with them. When these carbon copies were produced in court the carriers noticed that in six out of seven one column regarding the amount : 'Dhanrashi & Rupee-Annas-Pies' had been struck out. The words Rupee-Annas-Pies were crossed in red ink and the words 'square yards' were written in their place. This set the carriers on enquiry. They examined the original challans which were in their possession. They found that in the originals no such correction had been made as had been made in red ink in the carbon copies. Immediately they made an application to the trial judge and sought his permission to produce the originals of the seven challans. The trial judge gave permission to file the original documents. This they did. The trial judge relied on the original seven challans (Ex. R1 to R7) as representing the correct value of the consigned goods. He refused to rely on the Mills' carbon copies (Ex. Public Witness Public Witness 20/1 to Public Witness Public Witness 20/7). With regard to the change made in the carbon copies the judge said : 'This change cannot possibly be accepted as it did not appeal* in the originals which were sent to the defendants at the time when the goods in suit were consigned and on the basis of which the defendant gave the value in G.Rs.'

(14) Counsel for the Mills has taken objection to the procedure adopted by the trial judge. It was said that the original document Rl to R7 ought not to have been allowed to be produced. Reliance was placed on S. 164 of the Evidence Act. That section reads :

'WHENa party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.'

(15) It is true that the carriers did not produce the original documents of which the Mills had given them notice to produce. It is also true that the rule enacted in S. 164 says 'You must either produce a document when it is called for or never' (per Alderson B. in Doe v. Cockell, 6 G. 525 But the court has the power togive permission to the carriers to produce the original documents. Its order seems to me eminently just. When such a discrepancy in the original and the carbon copies as in this case is brought to the notice of a tribunal it would be perfectly justified in giving permission to produce the documents which the party had refused to produce on notice. The reason is that the introduction of and alteration by inserting new or foreign matter itself calls for an immediate enquiry. Curiosity is at once aroused and the intellect demands an answer.

(16) The case of the Mills now is that the figures indicated in the column of price or amount do not represent the price of the goods. It represents 'square yards', counsel said. How will these be square yards when the yardage is given in the preceding column This is something beyond my comprehension. I put it to counsel. He was unable to explain. The change in red ink occurs only in Ex. P. W. 20/1, P. W. 20/3, P. W. 20/4, P. W. 20/5, P. W. 20/6 and P. W. 20/7. It does not appear in Ex. P. W 20/2. There the words appear in English as 'amount-Rupees-Annas-Pies'. Counsel for the carriers drew my attention to other challans on the record namely, challans marked H, I, J & K. In these four challans the value of the goods is given in rupees, annas and pies against each bale and the yardage of each is also given in other columns which are more or less on the same pattern in. all the bills. On the basis of challans H, and I, the carriers prepared their Goods Receipt P/8. This relates to seven bales in all. The price of seven bails taken from the challans is as under :

Bill Nos. Price 2663) Rs. 1,308-72 2662) Rs. 679-80 2678) Rs. 679-80 2664 Rs. 654-36 2581) 2582) Rs. 1,393-74 ____________ Total: Rs. 4,716-42 ____________ Similarly, Goods Receipt P6 indicates the value as Rs. 3,714-97. This covers the following bales the price of which indicated in the challan is as below: 20576) 20577) Rs. 2,835-56 20578 835-56 20578 ) 20579) 20583) 20584) Rs. 879-41 19934) 19935) ______________ Total: Rs. 3,714-97 ______________

I have taken these two goods receipts as illustrative. The other goods receipts were also prepared on the same basis and in the same manner taking the price of the bales from the challans as indicated therein.

(17) Counsel for the Mills said that the column of amount 'Dhanrashi' did not represent the price of the goods It was square yards as noted in red ink. But he has not been able to explain how it can be square yards in some of the challans while it correctly represent the price of goods in other challans, for example, H, I, J &K.; After listening to his arguments the lusid interpretation remains to puzzle to me of which counsel was unable to give any clue. Who made it and with what end in view Was it done to improve the case or to bolster the claim To these questions no satisfactory answer was given. Counsel then said that in any event the price did not include the excise duty and profit etc. which they were entitled to claim from the carriers on the loss of the goods. In my opinion, this is a fallacious argument.

(18) The peculiarity of a common carrier of goods is that he is bound to convey the goods of any person who offers to pay his hire and that he is an insurer of goods entrusted to him, that is, he is liable for the loss or injury, in the absence of a special agreement or statutory exemption, unless the loss or injury was caused by the act of God or the queen's enemies. (Nugent v. Smith (1876) 45 L.J. C. P. 697. As the law compels carriers to undertake the responsibility of an insurer, it would be most unjust if it did not afford them the means of knowing the extent of their risk. Other insurers always have the amount of what they are to answer for specified in the policy of insurance. How will the carrier protect himself against risks, the extent of which he cannot know His reward for carriage must be in proportion to the risk. 'Indeed) besides the risk that he runs, his attention becomes more anxious, and his journey more expensive, in proportion to the value of his load'. He can say to the owner : 'I will not undertake the safe conveyance of goods unless you state their value and pay me a premium proportionate to their value'. The carrier will be liable only for what he is fairly told of. He is not obliged to take a package the owner of which will not inform him what are its contents, and of what value they are. He is entitled to be apprized of the value of the property entrusted to him for safe conveyance.

(19) As long ago as 1828 the principle was established that :

'Acarrier has a right to know the value and quality of what he is required to carry. If the owner of the goods will not tell him what his goods are and what they are worth, the carrier may refuse to take charge of them, but if he does not take charge of them, he waives his right to know their contents and value. It is the interest of the owner of goods to give a true account of their value to a carrier, as in the event of a loss he cannot recover more than the amount of what he has told the carrier they were worth- and he cannot recover more than their real worth, whatever value he may have put on them when he delivered them to the carrier '

(Ritey v. Borne, 130 E. R. 1044 per Best C. J.)

(20) Applying this principle to the instant case it is clear that the Mills made a declaration of the value of the goods in the challans and this declaration formed the basis of the contract which the parties intended to make, and by which it was to be regulated and governed. The contract was made upon the footing and understanding that the value of the goods to be transported was that given in the challans. Here it appears in evidence that the contract was to be regulated and governed by a state of facts understood by the parties, viz., that the goods were of the value indicated in the challans. Having agreed to regard the truth of the assumption as the basis of their contract the parties cannot subsequently be allowed to receds from that position. The governing principle is that stated in Blackburn's Contract of Sale--viz. that 'when parties have agreed to act upon an assumed state of facts, their rights between themselves are justly made to depend on the conventional state of facts and not on truth ' {Mc Cance. v. London & North Western Rail Co., 159 E. R. 563. The principle has again been stated as 'that the parties agree for the purposes of a particular transaction to state certain facts as true; and that so far as regards that transaction, there shall be no question about them.' See Dabbs v. Sea Men, (1925) 36 C. L. R. 538 per Issacs J. Spencer Bower and Turner-Estoppel by Representation 2nd ed.p. 147). Applying this rule to the present case, I think that both parties are bound by the conventional state of facts agreed upon between them.

(21) In Halsbury's Laws of England (4th Hailsham's ed.) Vol. 5, para 458 it is said :

'WHEREgoods are entirely destroyed or lost by a common carrier, the measure of the damages recoverable from him is prima facie the value of the property lost. The owner is entitled to the value of goods dealt in by way of trade at the place to which they were consigned. If there is a market for that description of goods at that place, the damages are the market value of the goods there at the time when they ought to have been delivered; but if there is no market, then the damages are the cost price of the goods, together with the expenses of carriage, and such profits as might reasonably be expected to have been made in the ordinary course of business, provided the carrier had notice that the goods were brought for resale. If the consignor has declared the value of the goods before the carriage, he is bound by the declaration and is estopped from giving evidence that the goods have any higher value.'

(22) The general rule is that the value of the property lost is the measure of damages. Where marketable goods are lost it is almost axiomatic that the market price measures the damage. But if the consignor declares the goods are of certain value, he cannot allege subsequently that the goods were in fact of a higher value. (See Halsbury Para 337). This is exactly the case here. The consignors declared the value of the goods before the carriage. They did it in the challans.. The original challans were handed over to the carriers. The Mills are, thereforee, bound by their declaration and are now estopped from giving evidence that the lost goods had a higher value. This higher value they claim on the basis of bills which total Rs. 50,294.47. But this higher value cannot be awarded to them, bound as they are by their own declaration. The evidence regarding bills cannot be admitted. The Mills are precluded from giving this evidence. A mass of oral evidence was given to prove the price of goods with the help of rate lists. A number of witnesses were examined. All this evidence, in my opinion, ought to be excluded, once it is held that the Mills are bound by their declaration and estopped in law from proving that the goods had a higher value. This is my conclusion on this aspect of the case. No other contention was raised in the cross-objections.

(23) In the result both the appeal and the cross-objections are dismissed. In the circumstances of the case I leave the parties to bear their own costs.


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