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India General Navigation and Ry. Co. Ltd. Vs. Girdharilal Gobardhone Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata
Decided On
Reported inAIR1927Cal394
AppellantIndia General Navigation and Ry. Co. Ltd.
RespondentGirdharilal Gobardhone Das and ors.
Cases ReferredMuschamp v. The Lancaster and Preston Junction Railway Co.
Excerpt:
- .....decree of the munsif of bankura, the india general navigation and railway co., ltd., and rivers steam navigation co., ltd. have preferred this appeal which arises out of an action commenced by the plaintiffs' firm for recovery of damages for short delivery of goods. the plaintiffs' case is that one rambilas muralidhar consigned 129 maunds 31 seers of betel-nuts in 71 gunny bags to defendants-appellants at daulat khan steamer station for delivery to them at bankura. the defendant no. 4, appellant, undertook to carry the goods from daulat khan to bankura via the eastern bengal railway (defendant no, 3), the east indian railway (defendant no. 2) and the bengal-nagpur railway (defendant no, 1).2. the plaintiffs further alleged that when they went to take delivery of the goods at bankura.....
Judgment:

Mitter, J.

1. This is an appeal from the decree of the District Judge of Bankura which reversed the decree of the Munsif of Bankura, The India General Navigation and Railway Co., Ltd., and Rivers Steam Navigation Co., Ltd. have preferred this appeal which arises out of an action commenced by the plaintiffs' firm for recovery of damages for short delivery of goods. The plaintiffs' case is that one Rambilas Muralidhar consigned 129 maunds 31 seers of betel-nuts in 71 gunny bags to defendants-appellants at Daulat Khan Steamer Station for delivery to them at Bankura. The Defendant No. 4, appellant, undertook to carry the goods from Daulat Khan to Bankura via the Eastern Bengal Railway (Defendant No, 3), the East Indian Railway (Defendant No. 2) and the Bengal-Nagpur Railway (Defendant No, 1).

2. The plaintiffs further alleged that when they went to take delivery of the goods at Bankura Station there was short delivery by 31 maunds 281/2 seers of which the then current price was at Rs. 19 per maund; and that they exchanged correspondence with the different Companies from which it transpired that servants of Defendant No. 2 misappropriated the same and the reason for making all the Railway and Steamer Companies parties to the action was stated to be the fact that the goods passed through the lines of all the defendant Companies. The claim was laid at Rs. 629. The defendant Steam Navigation Co. and another who are the appellants before us contended inter alia that the suit should fail for want of proper notice, that they made over the goods in good order to the Eastern Bengal Railway at Khulna on the 1st February 1922 and that thereupon their liabilities ceased. The Munsif found that notices had been served on the defendant Companies according to the provisions of Section 77 of the Railways Act and that the loss of the goods in question occurred while the goods were in transit on the East Indian Railway (Defendant No. 2) and passed a decree for the amount claimed against the East Indian Railway and dismissed the suit against the other Railway Companies as also against defendant Steam Navigation Co. and another who are the appellants before us.

3. The East Indian Railway appealed to the District Judge making the plaintiffs' firm alone as party respondent. Some time after the period of limitation had expired for filing the appeal, Defendant No. 4 was made a party respondent to the appeal. The appeal was heard and the appeal was decreed and the plaintiffs' suit was dismissed against the East Indian Railway Co., on the ground that notice under Section 77 of Indian Railways Act was not a proper notice as it was served more than six months after the delivery of the goods for carriage by the East Indian Railway Co. But a decree was made against defendant Steam Navigation Co. and another. It will be noticed here that plaintiff preferred no appeal against the decree of the Munsif dismissing his suit against Defendant No. 4. The lower appellate Court in passing an decree against Defendant No. 4 was evidently purporting to act under Order 41, Rule 33 of the Code of Civil Procedure and it may be a question if the Defendant No. 4 could be added as a respondent if the period of limitation for filing an appeal against him has expired.

4. However, as this point was not taken by the appellant in their memorandum of appeal nor urged before us, we do not think we should permit it to be raised. In second appeal the learned Advocate for the appellants raises two points : first, that the suit should have been dismissed against Defendant No. 4 as there was no service of notice on them under Section 10 of the Indian Carriers Act (3 of 1865). It is said that although notice was served on the local agents of the Company at Daulat Khan, no notice having been served on their agent at Calcutta, the notice is invalid, and reliance is placed on Rivers Steam Navigation Co. v. Messrs. Hazairimall Multan Mal [1918] 27 C.L.J. 294 in support of the contention.

5. The second point raised is that as the goods were admittedly in order when the river journey was completed and the goods were made over to the Eastern Bengal Railway the liabilities of the defendant Steam Navigation Company ceased, as it is admitted by the plaintiffs that the loss occurred in transit over the East Indian Railway. To the first contention the learned vakil for the respondents replies by arguing that the Carriers Act do33 nowhere state that the notice under Section 10 should be served on the agent at Calcutta and there is no such corresponding provision in the Carriers Act as we have in Section 140 of the Indian Railways Act and consequently the cases cited have no application. We think this contention of the learned vakil for the respondents is well founded and must prevail. All that the cases cited by the appellants lay down is that where notice under Section 10 of the Carriers Act has not been shown to have been duly served knowledge aliunde of the service if notice by the common carrier is not sufficient.

6. The second point raised by the appellants is one of considerable difficulty. The argument for the appellants assumes that there are a series of contracts with different Companies and there is not one contract with the Steam Navigation Company, or Rivers Steam Navigation Company at Daulat Khan. This argument receives considerable support from the decision of Mr. Justice Brett in Norang Rai Agorwalla v. Rivers Steam Navigation Co. Ltd. [1907] 34 Cal. 419 and of Mr. Justice Mitra and Mr. Justice Caspersz in Gokul Ch. Das v. I.G.S.N. & Ry. Co., Ltd. [1907] 11 C.W.N. 1076 to this extent that so far as liability for any loss for the river portion of the journey is concerned it is to be governed by the Carriers Act and liability for any loss arising in the journey by rail is to be determined by the Indian Railways Act. As to how far this view about the differentiation of liabilities is right may be a matter open to question and we find indications of a contrary opinion in an elaborate and learned judgment of the learned Chief Justice in the case of The Dekhari Tea Co. v. The Assam Bengal Railway Co., Ltd. [1919] 47 Cal. 6. In that case the learned Chief Justice observed as follows:

The facts hare seem to ma to be distinctly stronger than those in any of the leading cases which were decided with reference to contract by Railway Companies to carry to places that ware on other Companies lines Muschamp v. Lancaster and Preston Junction Railway Co. [1841] 8 M. & W. 421, Scotharn v. South Staffordshire Railway Co. [1853] 8 Exch. 341 and Collins v. Bristol and Exeter Railway Co. [1859] 7 H.L.C. 194, or to carry to a point beyond their own lines which involved transport by water Wilby v. W. Cornwall Railway Co. [1858] 2 H. & N. 703.

Subject to any written documents, it is a question of fact for a jury to say whether there was one contract or more than one. The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a Sender on an ordinary 'through booking' transaction eaters into a series of contracts with carriers Nos. 1, 2 and 3., making each carrier except the last his agent to make a further contractor treating him as the next carrier's agent to a further contract with the sander. If it be said that though there is an entire contract with the first carrier for the whole journey, yet there may also be a contract with each of the other carriers for their own part of the transit, this no doubt is true. But as an inference it is still more elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each carrier being treated as the Sander's agent to contract with the next which involves a doubtful scheme for the transmission of authority; or else by each carrier being treated as having made the previous one (or perhaps the first one) his agent to contract on his behalf, while himself being the previous carrier's agent to perform. Again, this latter view is possible and in some cases it is right such a position is quasi-partnership and is illustrated by Gill v. M.S. and L. Railway Co. [1873] 8 Q.B. 186 and Great Indian Peninsula Railway Co. v. Radhakissen [1881] 5 Bom. 371.

It his been put in argument that where for their mutual advantage two Companies are in the habit of handling through traffic for a reward to be divided in proportions, there is in substance a quasi-partnership and each is the agent of the other to contract. I do not agree. Mutual advantage is the pre-supposition in every contract and not the less so that it is often vitiated by mistake or sadly falsified by events. It is not of itself a principle of confusion which obliterates the distinction between a sub-contract to perform and an agent's or partner's authority to contract. The case of Foulkes v. Metropolitan District Railway Co. [1880] 5 C.P.D. 157, if the facts be considered is no authority for any proposition so wide. It was a case where the defendant Railway carried for the whole journey by their own rolling stock tartly over their own line and partly over another as to which they had running powers. There was a body of evidence as to the relationship between the Companies and the position of the booking clerk who issued the ticket. It was not a case of carriage by successive Companies over their own lines.

7. It is true in that case the Steam Navigation Co. was made liable for loss due to their own negligence not on the basis of any contract with the owner of the goods but on the basis of their liability as common carrier under the Indian Carriers Act even in the absence of privity of contract with the owner. But the observations of the learned Chief Justice quoted above throws considerable light on the present controversy. The law in England is to the effect that where goods are addressed to a place beyond the sphere of the carrier's business so that from another point he must forward them by another carrier he is responsible for the goods for the whole journey unless he limits his liability by agreements: see Shepherd v. Bristol and Exeter Railway Co. [1868] 3 Exch. 189 and Muschamp v. Lancaster and Preston Junction Railway Co. [1841] 8 M. & W. 421.

8. We have in second appeal received in evidence a risk-note in form H tendered on behalf of the appellants, which was executed by the present plaintiffs in favour of the Eastern Bengal Ry. Co., as through mistake the risk-note in another case was filed by the Eastern Bengal State Railway Co. But as the loss did not take place while the goods were in transit in Eastern Bengal State Railway the risk-note does not protect the defendants from liability even if we take the decision of Mr. Justice Brett in Norang Rai Agorwalla v. R.S.N. Co., Ltd. [1907] 34 Cal. 419, to be a sound one. At one time in the course of argument it seemed to us that this fact of the execution of the risk-note in favour of Eastern Bengal State Railway Co. shows that there was one contract with the first carrier as also a separate contract with each of the other carriers for their own part of the transit, and as the loss occurred in transit over the East Indian Railway line the defendant Steam Navigation Co. were absolved from all liability. But as has been pointed out by the learned Chief Justice in the case of The Dekhari Tea Co. v., The Assam Bengal Railway Co., Ltd. [1919] 47 Cal. 6, as an inference it is improbable as it involves a contract and a parallel series of contracts.

9. The District Judge has made the defendant Steam Navigation Co., Ltd. liable for the negligence of the East Indian Railway Co., treating the latter as the agent of Steam Navigation Co., within the meaning of Section 8 of the Indian Carriers Act. Whether in the absence of the terms of arrangement between the different companies it is impossible to infer that the East Indian Railway were the agents of the Steam Navigation Company may be a matter open to doubt. But, under Section 9 of the Indian Carriers Act, it is not necessary for the plaintiff to prove that

such loss, damage or non-delivery was due to the negligence or criminal act of the carrier, his servants or agents.

10. It is difficult to say how the Steam Navigation Company and another can escape liability if the contract was one and indivisible contract with them, as: the carrier would be responsible for any loss which occurred before delivery on the same to the plaintiffs. The view which we take receives support from the decision of the House of Lords in London and North-Western Railway Co. v. Richard Hudson [1920] A.C. 324. We have given our most anxious consideration to this case and we do not see our way to hold that Defendant No. 4, i.e., Steam Navigation Co., and another are not liable for the loss. The result is that the appeal fails and must be dismissed with costs.

Duval, J.

11. The facts of this case are that one Rambilas Muralidhar had made over certain bags of betel-nuts to the joint steamer agent of India General Navigation and Railway Company, Ltd. and Rivers Steam Navigation Co. at steamer station at Daulat Khan for their being sent to Bankura. The goods had. to proceed by river to Khulna and thence across the Eastern Bengal Railway to Naihati and thence on the East Indian Railway to Asansole and the rest of the journey by the Bengal-Nagpur Railway. It is admitted that some pilfering took, place of the goods on the East Indian Railway and it is also clear that there was no risk-note under the Railways Act to cover the risk on either the E.I.R. or B.N.R., nor did the Steamer Companies limit their liabilities by taking any risk-note which they might have been able to take under the Carriers Act. Now the learned District Judge has given a decree against the Steamer Company after coming to certain findings of fact. He found that the East Indian Railway Company was acting as an agent of the Steamer Company to carry goods and, therefore, he held that as the goods were lost the Steamer Company, which had entered into a contract to send the goods to Bankura, were liable for the loss.

12. In appeal two points were taken. The first was that the notice issued to the Steamer Company was a bad notice under the Carriers Act. The notice was sent by post and was received by the Joint Agent of India General Navigation and Railway Company, Ltd. and Rivers Steam Navigation Company at Daulat Khan. He was the local representative of the two Companies and the plaintiff did not know when he consigned the goods by which Steamer Company his goods would be taken to Khulna. I cannot see that there could be a better service of notice than was served on the joint representative. I was referred to some rem irks made in the case of British and Foreign Marine Insurance Co. v. India General Navigation and Railway Company, Ltd. [1910] 38 Cal. 28, where it is stated that a notice by a letter to the Managing Agent would be a good notice, but that decision does not say that the notice such as was given here is not also a good notice. The essential of a good notice Appears to be that it should reach the person who is liable to make good the loss. The local agent received the notice and in fact it is clear from the pleadings that the Companies were made aware of the claim lodged.

13. Now, the second point is whether the Railway Company is an agent of the Steamer Company. Here reference was made to the case of Gokul Chandra Das v. India General Steam Navigation and Railway Co. [1907] 11 C.W.N. 1076 and to the case decided by Mr. Justice Brett. As to these cases I may remark that there is no definite finding as to whether in point of law one Company is an agent of another and as to whether there were separate contracts. Those cases were decided with reference to the fact that the value and description of the article lost were not expressly declared as the law required them to be declared. But it appears to me that the matter is really one of fact. The Judge has come to a finding, though I must admit that he has not dealt very much with the evidence, that the East Indian Railway was an agent of the Steamer Company., The present case therefore appears to me to be strictly speaking governed by the ruling in the case of Muschamp v. The Lancaster and Preston Junction Railway Co. [1841] 8 M. & W. 421 (which is still the law) that the proper person who is liable is the person to whom the goods were delivered and that the contract is not a divisible one and that it is really a matter for the jury to decide with whom the contract really was.

14. I agree with the District Judge that in this case the Steamer Companies were the people who entered into a contract for delivery of the goods undamaged at the place of their destination using the Railway Companies as their agents and were liable to make good the loss.

15. In this view the appeal is dismissed with costs.


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