Back
HIGH COURT OF CALCUTTA
U. C. Law
NATIONAL TOBACCO CO. OF INDIA LTD. - Appellant
Versus
INDIAN AIRLINES CORPORATION - Respondent
Suit 3267 Of 1954
Decided On : AUGUST 29, 1960
AIR CARRIER - LIABILITY - CARRIERS ACT, 1865 - APPLICABILITY - CONTRACT ACT, 1872 - APPLICABILITY - ENGLISH COMMON LAW - APPLICABILITY - EXEMPTION CLAUSE - CONSTRUCTION.
Fact of the Case:
Plaintiff delivered 20 cases of cigarettes to the defendant for carriage by air from Calcutta to Madras. The goods were damaged during transit. The plaintiff claimed damages, alleging negligence on the part of the defendant. The defendant relied on the exemption clause in the consignment note, which exempted it from liability for any damage or loss, including negligence.
Finding of the Court:
The court held that the Carriers Act, 1865 did not apply to the case as it only applied to transportation by land or inland navigation and not to carriage by air. The court also held that the Contract Act, 1872 did not apply to common carriers, as it was not intended to alter the law applicable to them. The court further held that the English Common Law, as administered in India, applied to the case and that the defendant was a common carrier who could exempt itself from liability for negligence by express contract. The court found that the exemption clause in the consignment note was clear and unambiguous and that the defendant had effectively exempted itself from liability.
Issues: 1. Whether the Carriers Act, 1865 applied to the case. 2. Whether the Contract Act, 1872 applied to common carriers. 3. Whether the defendant was a common carrier and whether it could exempt itself from liability for negligence by express contract. 4. Whether the exemption clause in the consignment note was clear and unambiguous.
Ratio Decidendi: 1. The Carriers Act, 1865 only applied to transportation by land or inland navigation and not to carriage by air. 2. The Contract Act, 1872 did not apply to common carriers, as it was not intended to alter the law applicable to them. 3. The English Common Law, as administered in India, applied to the case and the defendant was a common carrier who could exempt itself from liability for negligence by express contract. 4. The exemption clause in the consignment note was clear and unambiguous and the defendant had effectively exempted itself from liability.
Final Decision: The court dismissed the plaintiff's suit with costs.
( 1 ) ON 15th September 1953 the plaintiff delivered to the defendant 20 cases of John Peel Magnum cigarettes for carriage by air from Calcutta to Madras for reward of Rs. 384. 50 np. which was duly paid to the defendant. By a consignment note No. 7072049 dated 15-9-1953 the defendant acknowledged receipt of the goods. At the back of the consignment note the conditions of carriage are set out which it appears were accepted by the plaintiff. It is not disputed that the goods were in perfect condition when they were handed over to the defendant for despatch. The plaintiff's Case is that on 17th September 1953 when the goods were, offered to them by the defendant at the destination they were found to be severely damaged and completely soaked in water so as to be beyond salvage and as the goods were a total loss they refused to take delivery. It is stated that the nature of damage to the goods was unusual in transactions of carriage by air and was caused by misconduct and/or negligence of the defendant and/or their servants as was apparent from the conditions of the goods when they reached Madras. The plaintiff claims that in the circumstances they have suffered damages, which they assess at Rs. 4547/- being the total of the value of the cigarettes Rs. 4,182-50 np and freight paid Rs. 384-50 np. and which they are entitled to recover but the defendant has failed to pay in spite of demands.
( 2 ) APART from a general denial of the allegations in the plaint and denial of liability the main defence of the defendant is that under the agreed terms and conditions of the contract of carriage as contained in the consignment note the defendant was exempt from any liability under the law whether to the sender or to the consignee or to their legal representatives, in case of damage or loss or pilferage or detention from any cause whatsoever (including negligence or default of pilots, agents, flying, ground or other staff or employees of the carrier or breach of statutory or other regulations) whether in the course of journey or prior or subsequent thereto, and whether while the freight be on board the aircraft or otherwise. 2a. The following issues are raised: 1. Were the goods damaged as alleged in paragraph 4 of the plaint? 2. Were the alleged damages caused by reason of misconduct and negligence on the part of the defendant as alleged in paragraph 7 of the plaint?
( 3 ) (A) Is the defendant common carrier? If so, does the Carriers Act of 1865 apply?
(b) Under what law would the defendant, it found to be a common carrier, be governed? (c) Is the defendant exempted from all liabilities by reason of Clause 3 of the conditions printed at the back of the agreement being consignment note Annexure A to the plaint?
( 4 ) WHERE the damages caused to the said goods beyond the control of the defendant and could not be foreseen or prevented by them by exercise of any reasonable amount of care and diligence?
( 5 ) TO what relief, if any, is the plaintiff entitled?3. The plaintiff has examined their Territory Manager who has clearly established that when the goods were offered to them for delivery at Madras they were severely damaged and were found to be completely soaked in water. They were beyond salvage and were a total to Sections The price of the goods and the amount of the freight charged are not challenged. I am satisfied with this evidence and so I answer the issue No. 1 in the affirmative. 4. The defendant examined their Chief Traffic Assistant. He knew the goods Were cigarettes and admitted that the outer covers of the packets were soaked (Question 169 ). His evidence as to the sudden rain at the time of the loading of the goods on to the aircraft is not very convincing. He admitted that it did not -look like rain on the night the goods were loaded on the plane. The night was clear but suddenly it rained heavily and the goods were soaked. I am unable to accept this uncorroborated oral evidence of this witness who was talking f
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
