Common carriers are liable as insurers of goods and are responsible for any injury caused to the goods delivered to them, however caused except only by act of God or action of alien enemies.

Headnote:
COMMON CARRIERS - LIABILITY - MOTOR VEHICLES ACT - PUBLIC CARRIER - DEFINITION - COMMON LAW LIABILITY - INSURERS OF GOODS - EXCEPTION - ACT OF GOD OR ACTION OF ALIEN ENEMIES - BOTH OWNERS LIABLE - AGENCY.
Fact of the Case:

The plaintiff's goods were burnt while being transported by the defendants, who were alleged to be common carriers. The trial court held that the defendants were common carriers but that they were not liable as they had not been negligent. The appellate court held that the defendants were not common carriers but ordinary bailees and that they were liable only as such. The plaintiff appealed to the High Court.
Finding of the Court:

The High Court held that the defendants were common carriers and were therefore liable as insurers of the goods. The court found that the defendants had not established the exception of act of God or action of alien enemies and were therefore liable for the loss of the goods. The court also held that both defendants were liable, as the business was owned by defendant No. 2 and defendant No. 1 was only managing it on his behalf.
Issues: 1. Whether the defendants were common carriers. 2. Whether the defendants were liable for the loss of the goods in the absence of proof of negligence. 3. Whether both defendants were liable.
Ratio Decidendi: 1. A common carrier is one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place. 2. Common carriers are liable as insurers of goods and are responsible for any injury caused to the goods delivered to them, however caused except only by act of God or action of alien enemies. 3. If a person holds a permit as a public carrier under the Motor Vehicles Act, he is exercising a public employment and not a private one. This means that he is bound to carry the goods of anyone who offers them to him, at a reasonable price.
Final Decision: The appeal was allowed and the decree of the District Court was restored.

JUDGMENT - Patel, J.

1. The question in this case is whether the respondents were common carriers and liable as such in respect of the goods belonging to the plaintiff and which they were carrying from Nagpur to Pusad. The goods were despatched on 21st April 1949 from Nagpur and were to be delivered to one Vinayakrao Patil of Pusad. The plaintiff alleged that he had expressly declared the value and the description of the goods at the time of delivery to the defendants. On the way the goods were burnt to ashes and hence the plaintiff filed the present suit for recovery of the value of the goods (they were all pieces of furniture) on the basis of a contract to reimburse and also on the basis that the defendants were common carriers.

2. Defendant No. 1 contended that there was no negligence on his part, that the truck was operated by gas plant, and the days being summer days, the goods were destroyed by fire due to some accident, and that there was no negligence on his part. He also denied that they were common carriers. The defendant No. 2 contended that he had already transferred the truck to defendant No. 1 and was not therefore responsible.

3. The suit failed in the trial Court but succeeded in the District Court. In second appeal which was heard by Mudholkar, J. the plaintiff failed and the suit was dismissed.

4. The trial Court held that the defendants were common carriers but that it was not proved that the fire was due to the negligence of the defendants and therefore they were not liable. It also held that if liable, both of them would be liable. The appellate Court held that under the Motor Vehicles Act the defendants were not bound to carry any goods that were offered to them and that they were not common carriers but only ordinary bailees and their liability was only as such. It however held that the burden of proof of absence of negligence was on the defendant. It found in favour of the plaintiff on that issue and decreed the plaintiffs suit. In second appeal, the question as to whether the defendants were common carriers was not decided as probably it was not canvassed. The learned Judge proceeded on the basis of the liability of the defendants as bailees and held that the burden lay on the plaintiff. He held that no facts which could amount to prima facie evidence of negligence were established in the case, nor its causal connection with the destruction of the plaintiffs goods.

5. It is argued on behalf of the plaintiff that the defendants were common carriers and therefore liable.

6. He relies for this purpose on the authority of the cases River Steam Navigation Co. v. Syam Sunder Tea Co. Ltd., ILR (1954) 6 Assam 433: (AIR 1955 Assam 65); Kalasami Nadar v. Ponnu-swami Mudaliar, ILR (I960 Mad 1091 and Mooljee Sicka and Co. v. Narharsingh, AIR 1959 Madh Pra 351.

The decision of the Privy Council in Irrawaddy Flotilla Co. Ltd. v. Bugwandas, 18 Ind App 121 (PC) is clear enough to show that the liability of common carriers under the Common Law and the Carriers Act, 1865, is not affected by the provisions of the Contract Act. It was said in that case:

"The obligation imposed by law on common carriers has nothing to do with contract in its origin. It is a duty cast upon common carriers by reason of their exercising a public employment for reward. A breach of this duty, says Dallas, C. J., Bretherton v. Wood, (1821) 3 B and B 54 at p. 62, "is a breach of the law, and for this breach an action lies founded on the common law which action wants not the aid of a contract to support it."

It was said "that the written law relating to that liability (the Carriers Act, 1865) is untouched by the Act; the unwritten law was not within its scope." If therefore the respondents were common carriers, they were liable as insurers for the goods burnt by fire.

7. A preliminary objection was raised on behalf of the respondents that this point was not raised by the plaintiff before Mudholkar, J. and therefore be was not entitled to urge this

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Judicial Analysis