Judgment

DAS GUPTA, J. : This appeal is from the judgment and decree of the High Court of judicature Assam affirming the judgment and decision made by the Subordinate judge of Upper Assam Districts, in a suit brought by the respondent Shyamsundar Tea Co,, Ltd., against the present appellants. The appellant companies are joint owners of Steamer service between Dibrugarh and Calcutta. The main service is along the Brahmputra River, Desang is one of the tributaries of the Brahmputra and meets the main stream Desangmukh Ghat. The plaintiff s case in the plaint was that the defendant companies as common carriers received goods at Dillibari Ghat which is situated on the Desang about 70 miles up-stream from Desangmukh Chat for carriage "therefrom by boats to Desangmukh Ghat and then by their steamers to different stations on dayment of freight." It is further the plaintiff s case that on Sept, 10, 1946, the plaintiff company delivered 120 chests of tea to the defendants at Dillibari Ghat for carrying therefrom and delivery of the same at Kidderpore in Calcutta. The boat carrying these tea chests sank; the tea chests were lost and could not be salvaged. The accident was, according to the plaintiff, due to the negligence on the part of the defendant companies agents and servants. On this ground of negligence as also on the ground that the companies as common carriers were liable to make good the loss whether or not there was negligence, the plaintiff claimed the sum of Rs. 16,224-12-0 as compensation for the loss.

2. The defendants raised a four-fold defence. The first contention was that there was no delivery to the defendants at all at Dillibari Ghat and the defendants did not undertake any carriage of the goods from Dillibari Ghat . Secondly, it was said that the sinking of the boat was not due to any negligence on the part of the defendants servants. The third contention was that the defendants were not a common carrier in respect of carriage of goods from Dillibari Ghat to Desang. Lastly it was pleaded that in any case conditions of the Forwarding Note which was executed by the plaintiff company completely absolved the defendants from all liability.

3. The Trial Court held on a consideration of the evidence that the goods were delivered by the plaintiff to the defendants at Dillibari Ghat for carriage from there to Kidderpore, Calcutta. It also held that the sinking of the boat was due to negligence on the part of the defendants servants. Accordingly, without coming to a clear conclusion whether the defendants were common carriers or not in respect of this contract of carriage the Trial Court gave the plaintiff a decree for the sum as claimed.

4. On appeal the High Court of Assam affirmed this decree, though not for quite the same reasons. The High Court agreed with the Trial Courts conclusion that there was delivery of the goods to the defendants by the plaintiff at Dillibari Ghat for carriage therefrom. On the question whether the sinking of the boat was due to the negligence of the defendants servants the learned Judges of the High Court did not however accept the Trial Court s view. Their opinion, it appears, was that the plaintiff had not been able to establish the case of negligence on the part of the defendant s servants. The High Court however came to the conclusion that the defendants undertook this carriage from Dillibari Ghat in their capacity as common carrier and so the question whether there was negligence or not was irrelevant. The High Court also found that the terms and conditions of the Forwarding Note did not in any way absolve the defendants from liability. Accordingly, the High Court affirmed the decree made by the Trial Court.

5. It may be mentioned that though on both the points, viz., whether the delivery of the goods at Dillibari was to the defendants and whether the defendants were, for such carrying from Dillibari, common carrier, one of the learned judges, Mr. Justice Ram Labhaya, appears to have been h