1. The plaintiff filed this civil revision petition against the dismissal of a suit for damages against the Madras-Bangalore Transport Company, represented by its branch manager at Madurai.
2. The short facts are the plaintiff booked a parcel with the first defendant on 28-11-1958 containing sarees to the value of Rs. 1566.12 nP. to be delivered to the second defendant at Bombay. The plaintiff obtained the parcel receipt from the, first defendant and sent it to the second defendant along with the invoice by ordinary post. But due to mishap the second defendant did not receive either the parcel receipt or the invoice. Subsequently the plaintiff's agent was informed that goods were delivered. Immediately the plaintiff sent a registered notice to the first defendant asking him to give the details of the delivery but no reply was sent to him. Therefore the plaintiff filed the present suit to recover damages against the first defendant. He also impleaded the second defendant as a party to the suit.
3. The defence to the suit is that it is true that the plaintiff booked a parcel on 28-11-1958 and the defendants delivered the plaintiff's consignee in the month of December 1958. They did not deliver the goods to a wrong person. The second defendant filed a written statement that he did not receive the parcel way bill and the original invoice and he was not aware of the consignment of the goods till he was informed by the plaintiff's agent.
4. On these pleadings the parties went to trial. The learned Subordinate Judge who tried the suit gave a finding that the goods were not delivered to the second defendant but they were delivered to a wrong person because of the negligence of the plaintiff in not sending the consignment receipt by registered post. Therefore, he dismissed the suit. It is against this dismissal of the suit that the plaintiff filed the present revision petition.
5. This is a case of importance to the rights of carriers. It is also important with respect to their obligations and the rights of the public. There is no doubt that the Madras-Bangalore Transport is a common carrier and it satisfies the description of a common carrier as observed by Destor Story in his Bailments in Section 495 in the following words:
'To bring a person within the description of a common carrier he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation 'pro vac vice'. A common carrier has, therefore, been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.'
The duties of common carrier of goods are:
(i) to receive for carriage all goods offered, provided, he has convenience to carry thorn and the goods are of a proper kind and the employer is ready and willing to pay the proper and reasonable hire; (ii) to carry for a reasonable reward and to deliver the goods within a reasonable time; and (iii) to insure their safety during the carriage and until delivery the acts of God and the enemies of the State are only excepted.
Chief Justice Wilde observed in Richards v. L. B. and S. C. Rly. Co., (1849) 7 C. B. 839-
'The duty of common carriers by the common law, is perfectly well understood; it is a warranty safely and securely to carry; whether they be guilty of negligence or not is immaterial; the warranty is broken by the non-conveyance or non-delivery of the goods entrusted to them.'
6. The liability of a common carrier is not limited only to negligence. In the case of loss or damage he cannot plead that he has exercised all reasonable diligence and care. He must be liable in spite of taking all due care and precautions. As Chief Justice Hale observed in Mors v. Slew, (1672) 1 Vent 190 - 'And if a carrier be robbed by a hundred men, he is never the more excused.' Thus the general principle of the common law is a common carrier is insurer of goods which he contracts to carry and he is liable for all loss of, or injury to those goods white they are in the course of transit unless such loss or injury is caused by the act of God or by the State enemies or is the consequence of inherent vice in the thing carried or is attributable to consignor's own fault.
7. The law is the same in India. The Carrier's Act No. Ill of 1865 is framed on the same lines of the English Carriers Act of 1830. Lord Macnaghten in Irravaddy Flotilla Co. v. Bhugwan Das, ILR 18 Cal 620 (PC) said that 'the Contract Act of 1872 was not intended to deal with the law relating to the Common Carriers'. It enables a common carrier to limit his liability by special contract in the case of certain goods but not so as to get rid of liability for negligence.
8. The learned advocate for the respondent brings to my notice that this is a case where the common carrier entered into a special contract with the plaintiff and it is specifically agreed between the parties that once the goods are delivered against the consignment note, the company is absolved from all liability. No claim shall lie against the company for misdelivery or wrong delivery. Therefore his client is not liable for the loss caused to the plaintiff by wrong delivery or misdelivery. I have to see how far the terms of the contract would bind the plaintiff. It is true that a common carrier entered into a special contract to relieve himself of the obligations. He cannot obliterate and destroy his character as the common carrier. The question in each case depends upon the special contract made, but the mere fact that in one respect the carrier has freed itself from its original liability as a common carrier does not necessarily lead to the conclusion that it ceases to be a common carrier in all other respects.
9. In the instant case the carrier in one of the terns of the contract says that once the goods are delivered, the company is absolved from all liability and no claim shall lie against the company for misdelivery or wrong delivery. What is misdelivery or wrong delivery is neither explained nor defined in the terms of the contract. The Interpretation of the term 'misdelivery' may be applied to all sets of conditions of contract in which it occurs. The word 'misdelivery' is restricted to a wrong delivery Involving some form of mistake or inadvertence. It may be intended to cover the sort of situation where a package is delivered to the wrong address by error or inadvertence. Exceptions to the general liability of a carrier or a bailee in general have to be construed strictly and hence the term 'misdelivery' should, if used in an exception clause, be held to cover no more than 'accidental misdelivery by mistake or error' and not deliberate misdelivery.
10. In Alexander v. Railway Executive, 1951 2 K B 882, Lord Justice Delwin observed at page 893 :
'I think that where 'misdelivery' is used in an exception designed to protect a bailee, it does not cover more, and would not be regarded by the ordinary man who reads such conditions as covering more than what might be called accidental misdelivery by mistake or error. Consequently if a bailee in such circumstances wants to protect himself against every sort of wrongful delivery however, deliberately made, he must use clear and express terms to that end.'
It is also useful to refer to the passage under the heading 'Misdelivery and Conversion' in Halsbury's Laws of England, 3rd Edn., Vol. 4, page 149 at paragraph 396 :
'A common carrier is bound to deliver the goods to the right person, and is liable to an action for misfeasance if he delivers them to anyone else.'
11. In one of the text books on 'The Law of Inland Transport' by Otto Khan-Freund, 3rd Edn. 1956, at page 256 the author says -
'At common law they are not even protected against the consequences of misdelivery due to genuine mistake, and they are compelled to secure protection by contract against the heavy responsibilities imposed upon them by the rigid rule of the common law. As pointed out above, many, if not most, road carriers are private carriers and liable only for their own or their own servants' negligence even in case of total loss or injury during transit.'
The Carriers Act of 1865 is unaffected by the provisions of the Indian Contract Act. Though Section 6 of the Carriers Act enables a common carrier to limit his liability by a special enactment it would be of no avail where loss or damage has been caused by the negligence or any criminal act on the part of the! carrier or his agents or servants.
12. In Mahamed Ravuthar v. British India Steam Navigation Co. Ltd., ILR 32 Mad 95, Justice Sankaran Nair observed'-
'If the obligation is imposed upon a common carrier for the benefit of the public, he cannot claim exemption by virtue of an unreasonable stipulation. The reason why a common carrier is bound to receive goods tendered and the great responsibility of an insurer is imposed upon him is that necessity compels the owners of goods to trust him. This liability is imposed upon him in the words of Lord Mansfield to prevent litigation, collusion and the necessity of going into circumstances impossible to be unravelled.'
In British and Foreign Marine Insurance Co. Ltd. v. Indian General Navigation and Railway Co., Ltd., ILR 38 Cal 28, the consignor filed a suit against the railway company in respect of 1000 bales of jute lost on the carriers' flat on the ground that the loss was caused on account of negligence or criminal acts of the carriers or their servants or their agents. The carriers contended that they are not liable to pay damages as there was an existing agreement that the carriers would not be held responsible and hold them harmless and indemnified from and against all claims which could be insured against or covered by an ordinary F. P. A, Policy. While interpreting this clause Chief Justice Jenkins observed:
'These rights and liabilities are outside the Indian Contract Act and are governed by the principles of the English Common Law as modified by the earners Act of 1895. A common carrier, therefore, in India is subject to two distinct classes of liability, the one for loss for which he is liable as an insurer, the other for loss for which he is liable under his obligation to carry safely.'
At page 45 he also observed:
'In India where there is a statutory prohibition against exempting a carrier from loss arising from negligence or criminal acts, there is perhaps an even stronger reason far adopting this canon of construction at any rate within the limits implied by the prohibition.'
Similarly in K. C. Dhar v. Ahmad Bux : AIR1933Cal735 , it was observed:
'A person who has suffered loss by a common carrier's breach of his common law obligation, can maintain a suit independent of contract. There is no question of this suit being defeated merely by reason of the absence of privity of contract or of privity of contract of insurance.'
On a review of all these authorities the carrier cannot escape its liability by merely contending that he entered into a contract with the consignor and that he is absolved from ail liability for misdelivery or wrong delivery. It is the elementary duty of a carrier to enquire whenever a person presents the consignee's note whether he is the proper person or its authorised agent. They should have taken steps to call upon him to identify if he is the proper person or they should have taken some measures or some device to prevent misdelivery or wrong delivery. In the instant case they do not say that they made enquiries of the person who tendered the consignee's note at their office. They should have been aware that as a common carrier they are responsible for the safety of the goods entrusted to them and they should also deliver the goods to the right person. Here I feel that: they have not discharged their duties as a common carrier in delivering the goods to the alleged consignee. I also feel that it is an act done by the defendants which in its consequence is injurious to the plaintiff. It is bettor to adopt the language of Justice Burrough in Duff v. Budd, (1822) 3 Brod & Bing 177, where the learned Judge said :
'Carriers are constantly endeavouring to narrow their responsibility, and to creep out of their duties; and I am not singular in thinking that their endeavours ought not to be favoured.'
The result is that the first respondent should pay the value of the lost consignment and the suit is accordingly decreed with costs. This civil revision petition is allowed with costs throughout.