1. About the facts of the case there is no material dispute. The controversy concerns the law applicable to the facts. The question is one of liability of a public carrier who carried goods and lost them due to circumstances beyond his control-
2. Mainly two questions arise and those are:
(i) Is the defendant a common carrier?
(ii) Can the destructive acts of an unruly mob be characterised as act of God?
3. Now the facts. On 8-11-1964 the plaintiff purchased 18 bags of green gram at Kottar in the Kaniyakumari District of the Madras State and booked it with the defendant for transportation to Quilon in one of his lorries. The defendant was running a lorry service under the name 'B. R. N. Lorry Service.' The goods were received by the defendant for transport to Quilon on 8-7-1964. But the goods were not delivered at Quilon as agreed upon. The suit was therefore filed for realisation of the price of the goods and interest thereon. The defence was that while the goods were being transported to Quilon the lorry was waylaid by a jatha at a place 11/2 miles to the east of Quilon and the unruly mob which formed the jatha robbed the goods.
It appears that the jatha was being taken out as a part of the food agitation and when they came across the defendant's lorry the mob attacked it and the goods were removed. The loss was therefore due to accident beyond the control of the defendant and it was therefore contended that defendant was not liable. There is, in fact, no plea that there was negligence on the part of the defendant and the circumstances also do not disclose any negligence or want of care. The circumstances which resulted in the loss of goods were not such as could have been prevented by the defendant. The question is whether defendant is liable in these circumstances.
4. The trial Court seemed to think that once it was shown that the defendant's conduct was not associated with negligence, he was not answerable. Of course, it is not disputed that there was no negligence on the part of the defendant. But the plaintiff's case is that a common carrier, which the defendant is cannot disown liability for loss caused by inevitable accidents. The only escape would be a loss caused by act of God or King's enemies and this is not one such. This necessitates a consideration of the question whether the defendant is a Common carrier and if he is. what is the nature and extent of his liability. It also remains to be considered whether inevitable accidents caused not by forces of nature but by human agency could be classed as acts of God.
5. The term 'common carrier' having been defined in The Carriers Act of 1865 there would have been no necessity to go into the meaning of that term as conceived in the English Common Law had this been a case to which the Carriers Act of 1865 applied. The case arises from that part of the Kerala State which was part of the erstwhile Travancore State and it is agreed that the Carriers Act 1865 was not made applicable to that area. That Act is in force only in those areas of the Kerala State which formed part of the State of Madras prior to the commencement of operation of the States Reorganisation Act 1956. In the erstwhile Cochin State there was a State enactment which was in force and that continues to be in force in that area.
In the erstwhile Travancore State there was no Statute which governed the matter. In the absence of a Statute, rules of justice, equity and good conscience were applied to questions which arose for decision. Whenever courts had' to apply such rules of justice, equity and good conscience, they were guided by! the rules of English Common Law in the matter, unless it be the circumstances did not warrant the application of such rules. Possibly no reference need be made at all to the English Common Law if the question is one covered by the Carriers Act, 1865 since that was the law in force in the rest of India for nearly a century and there is no reason why that should not be considered as indicating rules of justice, equity and good conscience. The fact that once the rules of English Common Law were normally adopted as indicating rules of justice, equity and good conscience (that was the case in the then State of Travancore, in certain matters not covered by Statute) need not compel continuance of the same approach for all time. If, under Indian conditions the enforcement of a particular Indian Statute has stood thetest of time there is nothing wrong in adopting such statutory law as indicating rules of justice, equity and good conscience. In the present case there cannot be any difficulty at all, as, in regard to the matter with which I am concerned in this Second Appeal, there does not appear to be any difference between English Common Law and the law as applied in India, of course, excluding such areas as the erstwhile Travancore State to which the Carriers Act had not been extended.
6. The incidence of the rights and liabilities, duties and obligations of a common carrier differs materially from that of a private carrier and hence the necessity of considering whether a person is a common carrier in any particular case or is otherwise.
7. The question whether a person Is a common carrier would depend upon what he professes to be. If he publicly professes to undertake for reward or hire transport of all such goods as are entrusted to him he is making a public avowal of the profession of a carrier. He may limit the class of goods which he undertakes to transport or he may limit the routes or areas over which he is to operate. But these do not detract from his character as common carrier. What is important is whether he agrees to carry for whomsoever wants to engage him or whether he holds out only as a person who is free to choose his customers and would dictate the terms under which he would enter into contract with them. He need not declare his profession by a public notice but it is sufficient if his conduct discloses that he is holding out publicly as one who is undertaking to serve the public by transporting goods from place to place for hire or reward.
8. Chitty on Contracts defines a 'common carrier' as
'...a person who publicly professes to undertake for reward to transport the Roods of all such persons as desire to employ him.' (Page 481 Chitty on Contracts Vol. 2, 23rd Edition).
Otto Khan-Freund in his Treatise on 'The Law of Carriage by Inland Transport' which has often been treated as an authority on the subject, describes a 'common carrier' thus:
'Anyone employed to carry an article from one place to another is in a sense a carrier, but he is not necessarily what is known in law as a common carrier- The law makes a careful distinction between a common carrier and a private carrier. A common or public carrier is one who makes carrying his business who holds himself out to the world as prepared for hire to transport from place to place the goods of any person wishing to employ him, while a man who undertakes to carry goods only forcertain persons is not a common, but a 'private' carrier.'
The learned author quotes the definition Of this term as formulated by Alderson, B.. in Ingate v. Christie, (1850) 3 Car and K 61, a passage which has been cited by the Supreme Court of India in its decision in River Steam Navigation Co. v. S. S. Tea Co.. AIR 1962 SC 1276:
'Everybody who undertakes to carry for any one 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 every one who asks him he is a common carrier; but if he does not do it for every one, but carries for you and me only, that is a matter of special contract.'
This definition has been adopted by the Supreme Court. In the language of Lord Holt in Coggs v. Bernard, 1703-2 Ld Raym 909.
'......a common carrier is one whoexercises a public employment.'
Avory J., in Watkins v. Cottell. 1916-1 KB 10 has attempted to elucidate this concept quoting a passage from Macnamara's Law of Carriers by Land thus:
'...I think it well to state what I understand by the term 'common carrier.' The following definition, which I take from a well-known text-book, seems to me to be accurate:' A common carrier is a person who undertakes for hire to transport from a place within the realm to a place within or without the realm the goods or money of all such persons as think fit to employ him. To render a person liable as a common carrier he must exercise the business of carrying as a public employment, and must undertake to carry Roods for all persons indiscriminately, and hold himself out either expressly or by course of conduct, as ready to engage in the transportation of goods for hire as a business, not merely as a casual occupation pro has vice. On the other hand a 'private carrier', which term includes every person carrying for hire who is not a common carrier, is defined to be 'a person whose trade is not that of conveying goods from one person or place to another, but who undertakes upon occasion to carry the goods of another and receives a reward for so doing.'
In Belfast Rope work Co. v. Bushell. 1918-1 KB 210, Bailhache J. said:
'...to make a man a common carrier he must carry as a public employment he must carry for all indifferently; he must hold himself out as ready to carry for hire as a business and not as a casual occupation pro has vice. He is sometimes described as a person who undertakes for reward to carry the goods of such as choose to employ him from place to place. To this I think it would be safeto add the words 'at a reasonable rate.' All other carriers by land are private carriers.'
In AIR 1962 SC 1276 to which I have al ready adverted, after considering the definition of the term in the Carriers Act. 1865 and the definition attempted by Al-derson, B.. in (1850) 3 Car & K. 61, the Court said:
'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.'
9. Common Carrier is defined In the Carriers Act 1865 (Act III of, 1865) in these terms:
'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 indiscri-minately.'
In this definition the reference to 'engaged in the business' and the words 'for all persons indiscriminately' indicate the pub-lic nature of the employment. That there is no departure from the concept of a common carrier as understood in English Common Law in the definition in the Carriers Act, 1865 is indicated in the decision of the Privy Council in Irrawaddv Flotilla Co. v. Bugwandas. (1891) ILR 18 Cal 620 (PC). The words 'for all persons indiscriminately' was considered by the Privy Council in a later decision in India Gen. N. & R. Co. v. Dekhari T. Co.. (AIR 1924 PC 40). Lord Shaw, considering this term 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 are not at liberty to refuse business. 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.'
10. The defendant before me is admittedly operating a lorry service, transporting goods of others from place to place. Such transport in respect of each vehicle can be only with the authority of a permit obtained under the Motor Vehicles Act, 4 of 1939. An owner of a transport vehicle other than a pub-lic carrier who uses the 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, is a private carrier. Section 2(23) defines a 'public carrier as under:
'2 (23) 'Public carrier, means an owner of a transport vehicle who transports or undertakes to transport gooda. or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agree-ment or otherwise, and includes any person, body, association or company engaged in the business of carrying the goods of persons associated with that person, body, association or company for the purpose of having their goods transported.'
The words 'for another person at any time and in any public place' indicate the duty which the carrier has to operate as a common carrier. Section 54 of the Motor Vehicles Act specifies matters to be contained in an application for a public carrier's permit. One of the matters to be shown is;
'......... the manner In which it Isclaimed that public need will be served by the vehicle...,.....'
In considering the application, for a public carrier's permit the Regional Transport Authority will have to regard many matters; the interest of the public generally the advantages to the public by the service to be provided, the convenience afforded to the public by the provision of such service and the saving of time likely to be effected thereby (Section 55 (a) and (b)). Once permit is granted, a vehicle is to run in accordance with the terms of the permit including fixation of rates. Section 57 provides that in the grant of the public carrier's permit the public is one of the parties entitled to appear and object. These indicate that a public carrier is one who is carrying on a profession really in the nature of a public trust. He has no discretion to refuse to transport goods of any particular person indiscriminately since he has a public duty to serve as a carrier.
No doubt he can, refuse to transport goods either on the ground that the goods are not of the nature which he usually carries or that the destination, is not one to which he normally plies or for other sufficient reason. Just as a stage carriage operator cannot refuse the facility of travel in his vehicle to any member of the public arbitrarily, there is a duty cast on the public carrier too in this regard and that really makes him one who carries on a profession of service to the public. Therefore, I donot think there is any substance in the contention that a public carrier under the Motor Vehicles Act is not a common carrier, a contention which has been urged with considerable force before me. In the passage in the work of the learned author Otto Khan-Freund, to which I have already referred earlier, the learn-ed author uses the term 'common carrier' as synonymous with public carrier. This question has been considered in a decision in the Bombay High Court in Hussainbhai v. Motilal, (AIR 1963 Bom 208). Considering the provisions of the Motor Vehicles Act, it was held therein that a public carrier is a common carrier. I am in respectful agreement with that view. The liability of the defendant is therefore that of a common carrier.
11. A common carrier is not a mere bailee of goods entrusted to him. He is an insurer of goods. He is answerable for the loss of goods even when such loss is caused not by either negligence or want of care on his part, act of God and of King's enemies excepted. This arises because responsibility attached to the public nature of the business carried on by him. He holds out as a person who has the expertise and the facilities to conduct the business of transport; consequently he is treated as an insurer of the goods and is answerable for its loss. This concept as to the liability of a common carrier has been applied in India uniformly. The rule of the Roman law as to the liability of a carrier is different- It does not conceive of an absolute liability as in the English Common Law and the rule of the Roman Law has been adopted by many States in the continent.
The extent of liability of a bailee under Sections 151 and 152 of the Indian Contract Act, 1872, is different from the extent of liability of a common carrier. A bailee is only bound to take proper care of the goods and for loss beyond his control he is not answerable. But the provisions of the Indian Contract Act do not govern the liability of a common carrier nor do they override the provisions of the Carriers Act 1865. This question was considered by the Privy Council in (1891) 1LR 18 Cal 620 (PC) and it was held that notwithstanding the provisions of the Indian Contract Act, the liability of a common carrier continues to be absolute subject to any special contracts entered into by him.
12. Section 6 of the Carriers Act. 1865, enables common carriers to enter into special contracts so as to limit or restrict their liability. But this cannot be so restricted or limited as to avoid liability to answer even when the loss is caused by negligence or criminal acts of the common carrier or its agents. ThisIs the purport of Section 8 of the Act, Therefore, it is open to any common carrier to keep himself out of the scope of absolute liability with regard to any particular contract of carriage by entering into special contracts with regard to the particular carriage with his customer. But no such contract would avail against gross negligence and criminal acts,
13. Based on certain observations in Otto Khan-Freund's Treatise referred to by me earlier and in Halsbury's Laws of England Vol. 4 Paragraph 368, learned counsel would contend that in England the liability of Common Carriers for road transport is not held to be absolute. According to him the law as developed his England indicates that the Courts in England have not recognised such absolute liability on the part of common carriers undertaking road transport. I do not see how the contention canvassed by learned counsel could be supported on the basis of the passages relied on by him. It has been noticed that in England carriers operating road transport have generally protected themselves by the method of entering into special contracts, so much so, that their absolute liability as common carriers do not normally arise. That and that alone, according to me has been said in the passages relied on by learned counsel. In fact, it is the decision in (1918-1 KB 210), that is cited in support of these passages. What was found by Bailha-che, J. in that case was that on the facts of that case the defendant was not shown to be a common carrier. The learned Judge said in conclusion:
'After all the question Is one of fact, and I am not sure that this elaborate discussion of textbooks and cases and questions and answers is very useful.'
I do not think that the scope of liability of a common carrier engaged in road transport is in any way different from that of other common carriers by land.
14. There is no case that thedefendant entered into any special contract with the plaintiff negativing liability in the event of loss being caused dueto causes occasioned by events beyondhis control. The only exception to suchabsolute liability is the event of losscaused by act of God or King's enemies.It is finally urged before me by learnedcounsel for the defendant, that the exception applies to the case before me as,according to counsel, any event beyondthe control of the defendant, any circumstance not of his creation, must betaken to be an inevitable accident, and.that according to him, is synonymouswith what is 'generally understood as vismajor or act of God.
15. Act of God is one arising from natural causes. Some of the well-known instances of acts of God are the storms, the tides and the volcanic eruptions. They are, in a sense, inevitable accidents beyond the control of man. What is urged in this case is that all inevitable accidents must be taken as acts of God. Matters which are not within the power of any party to prevent, is, according to learned counsel, inevitable accidents so far as he is concerned and consequently it is to be considered as acts of God. I cannot agree. Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases accidents may be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God-Cockburn C. J.. in the leading case in Nugent v. Smith. (1876-1 CPD 423) said.
'It is at once obvious, as was pointed out by Lord Mansfield in Forward v. Pittard, that all causes of inevitable accident--' 'fortuitus' -- may be divided into two classes -- those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, of nonfeasance or of misfeasance, or in any other cause independent of the agency of natural forces. It is obvious that it would be altogether incongruous to apply the term 'act of God' to the latter class of inevitable accident. It is equally clear that storm and tempest belong to the class to which the term 'act of God' is properly applicable.'
In Halsbury's Laws of England, Vol. 8, 3rd Edition, page 183, this question is dealt with as under:
'An act of God. In the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or. more accurately, as an accident due to natural causes, directly and exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it or who seeks to excuse himself on the around of it. The occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated. The mere fact that a phenomenon has happened once, when it does not carry with it or import any probability of arecurrence (when, in other words, if does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must, however, be something overwhelming and not merely an ordinary accidental circumstance, and it must not arise from the act of man.'
I see nothing in the decision in Chidam-barakrishna lyer Nataraja lyer v. South Indian Rly. Co. (21 Trav LJ 1) to which my attention has been drawn by learned counsel for the defendant to warrant the view that even when the accidents are purely the result of acts of human agency, it should be taken to be acts of God.
16. The criminal activities of the unruly mob which robbed the goods transported in the defendant's lorry can-not certainly be an act of God so as to absolve the defendant from the rule of absolute liability as a common carrier. Hence the defendant will be answerable for the loss of the goods.
In the result, I dismiss the second appeal with costs.