1. This revision petition arises out of an action by the first respondent herein against the owner of a bus, the first defendant and the conductor of the bus, the second defendant, for the recovery of a sum of Rs. 303-37, being the value of a bag of betel-nuts which was lost by the negligence of the first defendant and his servant, while he was travelling in his bus from Panruti to Tirukoilur. It is in record that the first respondent herein paid extra charges for his luggage to be carried to his destination. The luggage was handed oven' to the conductor who stowed it on the top of the bus. On arriving at the destination, the first respondent found' his baggage missing and immediately reported it to the conductor, and afterwards also to the owner of the bus. The defendants attempted to trace the baggage, but subsequently they disowned their liability. According to them, it was the duty of the passenger to take care of his luggage, and it was due to his carelessness and negligence that the luggage was lost.
The first respondent herein filed the present suit for recovery of the value of the baggage of betel nuts. The learned District Munsif held that the first defendant was a common carrier, and, as such, he was liable Under Section 8 of the Carriers Act, III of 1865, which provide that every common carrier is liable to the owner for loss of, or damages to, any property delivered to such carrier to be carried, where such loss or damage has arisen from the negligence or criminal act of the carrier or any of his agents or servants. The learned District Munsif decreed the suit as prayed for. It is against this judgment and decree, the first defendant, the owner of the bus, has filed the present revision petition.
2. Learned counsel for the petitioner seriously contended before me that his client is not liable for the loss. According to him, the bus is intended only to carry passengers, and it is, therefore, the duty of the passenger to take care of his luggage, while travailing in the bus, and that therefore, he should not be held liable or responsible for the passenger's luggage, inasmuch as there is no privity of contract between the passenger and the bus owner that he would safely deliver the luggage at the destination.
3. What are the dirties of a public carrier is now the Question for consideration. The Indian Carriers Act presumes the general liability of common carriers for the safe conveyance and due delivery of goods delivered to them. It makes no distinction between personal luggage and other goods of merchandise. The Act is intended to protect both carriers as well as the persons who employ them. On the one hand there is the extraordinary severity of the general law as to the carriers. On the other hand, there is the extreme leniency and one sidedness of the terms which carriers secured to themselves by special contract-terms which are often submitted to by the customer without his being aware of what ha is doing, it also imposes liability on the carriers in case of loss or damage due to their negligence or criminal act or any of their agents or servants.
4. Dealing with the carrier's liability for passengers' luggage, Mr. Otte Krhn-freund in his book 'The Law of Carriage by Inland Transport' at page 335 observes as follows:
'In this, as in all other cases of common carrier's' liability, the carrier does not insure against the four excepted perils; act of God, act of the Queen's enemies, inherent vice and consignor's fault, to which, in this case, must be added the passenger's own fault. Of them the last is by far the most important. If luggage is carried by railway in the van of the train by which the passenger is travelling, or in a motor coach on the roof or in the dickey, the carrier is liable for the luggage in the ordinary way. With regard, however, to luggage talon by the passenger in the compartment or in the coach along with him, it may be that full control over such luggage is not given to the carrier. If the passenger himself takes charge of the luggage, the position of the carrier is modified; if a passenger has assumed in whale or in cart the custody and control of his own luggage, the carrier is not liable for any loss or injury occurring during its transit which has been caused by the act or default of the passenger. Even in respect of luggage carried in the compartment or coach with the passenger the carrier remains liable as a common carrier, but there is this modification, that if the passenger has interfered with the carrier's control, the carrier is not liable for loss or injury due to that interference.'
In Corpus Juris Secundum Vol XIII, the law on the subject has been summed up in the following words at page 861 :
'At common law a carrier is responsible as an insurer only for the personal baggage of a passenger, and not for merchandise' or other articles which properly constitute freight. Articles of merchandise which are not for he personal use of the traveler on his journey, but. which are carried for the purpose of sale or trade, are not ordinarily included in the term 'baggage'; the carrier is not obliged to carry them except on the payment of additional compensation, and in the absence of knowledge thereof cannot be held liable for them as for baggage, even though taken in a trunk, such as is usually used for holding personal effects, or mingled with other articles which are properly baggage. The liability of the carrier in. such a easel is that of a gratuitous bailee, and, in order to recover for loss of, or injury to the property carried, gross negligence or wilful injury must be shown. A carrier may, however, contract to carry as the baggage of a passenger merchandise which is not ordinarily regarded as a baggage, and if it does so, it is liable as a common carrier'.
In the instant case, the petitioner, as the owner of the bus, collected extra charges for carrying the luggage in his carrier. The luggage was stowed on the top of the bus by the conductor. The conductor has, thus, taken control of the respondent's baggage of betel nuts And, while the first respondent was travelling in the bus he had neither control nor custody of the luggage. It is not the case of the petitioner herein that he entered into a special contract with the first respondent, in order to relieve himself of the liability for loss of his luggage. In one of the earliest of decisions, Brooke v. Pickwick, (1827) 4 Bing 218 , Best C. J. observed as follows :-
'............they attract customers under the confidence inspired by the extensive liability which the common law imposes on carriers, and then endeavour to elude that liability by some limitation which they have not been at pains to make known to the individual who has trusted them.'
In another case reported in 1 Conyas' Rep. 24, it was held that, where there was no express contract for the carriage, but by the custom and usage, every passengers used to pay for the carriage of goods, the coachman was liable for the loss of goods. In Halsbury's Laws of England, 3rd Edn. Vol. 4 page 434, the learned author sums up the law under the heading 'Carrier's liability' thus:
'The liability of common carriers in respect of articles carried as passengers' luggage is that of carriers of goods as distinguished from that of carriers of passengers unless the passenger himself takes personal charge of the luggage. A carrier is liable for the safe custody of the hand luggage retained by the passenger, unless he proves that the passenger took the luggage under his sole charge and that its loss was caused or contributed to by the passenger's negligence.'
In Raipur Transport Co., Raipur v. Ghansham Das, ILR (1955) Nag 786 :AIR 1956 Nag 145 the owner of a transport company was sued for the loss of one bag of bidis in transit. The transport company contended that there was a contract to the effect that the goods were carried only at the owner's risk, as shown in the ticket It was held that, where a carrier set up a special contract by reference to a condition printed on a ticket, he could not succeed unless he could prove either that the. opposite party, when he accepted the ticket, knew of the condition or that everything reasonably necessary to bring the condition to his notice had been done.
5. On a review of the entire case law on the subject, I am of opinion that the learned District Munsif has come to the right conclusion in decreeing the suit of the first respondent herein. The revision petition1 is' accordingly dismissed. No costs.