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HIGH COURT OF CALCUTTA
S. R. DAS GUPTA,R. S. BACHAWAT, JJ.
Sukul Bros.
Versus
H. K. Kavarana
A. F. O. D. No. 126 of 1954
Decided On : 18-02-1957
CARRIERS ACT - COMMON CARRIER - CONTRACT OF CARRIAGE - BAILMENT - OWNERSHIP OF GOODS - LIABILITY FOR LOSS OF GOODS - NOTICE UNDER SECTION 10 OF THE CARRIERS ACT - COMMON LAW DUTY OF CARRIER - CONTRACTUAL LIABILITY OF CARRIER - LIABILITY OF BAILEE OF GOODS - CONVERSION OF GOODS.
Fact of the Case:
The plaintiff, a carrier of goods, engaged the defendant, a common carrier, to transport 45 bales of jute from Calcutta to Howrah. The defendant accepted the goods for carriage and loaded them onto its lorry. The lorry, along with the goods, was later found abandoned, and the goods were lost. The plaintiff, who had paid the owner of the goods for their value, sued the defendant for damages for breach of its duty as a common carrier and for conversion of the goods.
Finding of the Court:
The court found that the defendant was a common carrier and that it had breached its duty to deliver the goods safely. However, the court also found that the plaintiff was not the owner of the goods and that he had not entered into a contract with the defendant for the carriage of the goods. The court further found that the plaintiff was not a bailee of the goods and that he had not given the defendant the notice required under Section 10 of the Carriers Act.
Issues: 1. Whether the plaintiff, as a non-owner of the goods, could maintain a suit against the defendant for breach of its duty as a common carrier. 2. Whether the plaintiff could maintain a suit against the defendant for breach of contract. 3. Whether the plaintiff could maintain a suit against the defendant as a bailee of the goods. 4. Whether the plaintiff could maintain a suit against the defendant for conversion of the goods. 5. Whether the defendant was liable for the loss of the goods in the absence of the notice required under Section 10 of the Carriers Act.
Ratio Decidendi: 1. The court held that the plaintiff, as a non-owner of the goods, could not maintain a suit against the defendant for breach of its duty as a common carrier, as the duty of a common carrier arises only in favor of the owner of the goods. 2. The court held that the plaintiff could not maintain a suit against the defendant for breach of contract, as there was no evidence of a contract between the plaintiff and the defendant. 3. The court held that the plaintiff could not maintain a suit against the defendant as a bailee of the goods, as the plaintiff was not a bailee of the goods. 4. The court held that the plaintiff could not maintain a suit against the defendant for conversion of the goods, as the defendant was not guilty of conversion. 5. The court held that the defendant was liable for the loss of the goods in the absence of the notice required under Section 10 of the Carriers Act, as the plaintiff had failed to prove that the notice was duly sent to the defendant.
Final Decision: The court allowed the appeal, set aside the decree passed by the trial court, and dismissed the suit. The appellant was awarded the costs of the appeal, including reserved costs of the application.
R. S. BACHAWAT, J. :- This appeal arises out of a suit in which the plaintiff seeks to recover from the defendant firm the sum of Rs. 12,220/- as damages for breach of its duty as common carrier to deliver 45 bales of jute entrusted to it for carriage, alternatively as damages for conversion of the goods. By his declaration in the plaint the plaintiff states that on the 29th of January, 1952 he delivered to the defendant 45 bales of jute for transport from the Calcutta Hydraulic Press Ghat at Cossipore to Howrah Jute Mills Ltd. and safe delivery thereof to Howrah Jute Mills Ltd. for reward and that the said 45 bales of jute were accepted by the defendant for carriage and safe delivery as aforesaid and were duly loaded on the defendants vehicle No. WBL 4327." By its defence the defendant denied that it was a common carrier. It also denied delivery and entrustment of the goods to it by the plaintiff. The defendant firm alleged that it only let out to the plaintiff on hire the vehicle No. WBL 4327 and provided the plaintiff with a driver, that the said vehicle and the driver thereof were under the full control, custody and supervision of the plaintiff and that the 45 bales of jute were lost while the same were under the custody and control of the plaintiff. It also pleaded absence of statutory notice required by S. 10 of the Carriers Act. Upon these pleadings, issue was joined and the action was tried by his Lordship Bose, J. Evidence, both oral and documentary, was adduced on behalf of both parties. The learned trial Judge accepted the testimony of the plaintiffs witnesses. He discarded the testimony of Kalap Nath Sukul, the partner of die defendant firm, as unreliable.
2. The evidence adduced at the trial establishes the following facts. The plaintiff is a carrier of goods and possesses 2 Lorries. Messrs. Sinclair Murray and Co. Ltd. who have a godown at the Calcutta Hydraulic Press have to send goods to their customers. Such goods are carried in their own lorries and also in other persons lorries. Whenever they require others lorries they approach the plaintiff who carries the goods in his own lorries and whenever necessary employs other lorries. The plaintiff says that he is the sole transport agent of Sinclair Murray and Co. Ltd. for the purposes of such carriage and that he is responsible to Sinclair Murray and Co. Ltd. for the safe carriage of all goods carried by the plaintiff or other carriers engaged by him. (Plaintiff - Questions 166, 174, 179-80, 369-70, Daroga Singh - Q. 31-33). The goods used to be taken out of the godown of Sinclair Murray and Co. Ltd. and loaded on the lorries by the coolies of Sinclair Murray and Co. Ltd. and then stacked by the driver and the coolies attached to the lorries. A chalan addressed by Sinclair Murray and Co. Ltd. to the consignee used to be given by their clerk to the driver of the lorry concerned. The driver on unloading the goods at the destination used to obtain a receipt for the goods on the chalan. The chalan thereafter used to be collected from the defendant firm by the plaintiffs employee (Daroga Singh - Q. 61-64, Dhirendra Prosad Dutta Gupta - Q. 14-15, Plaintiff - Q. 504). On the 29th of January, 1952 the plaintiff personally engaged the defendant to carry jute from the Calcutta Hydraulic Press to the Howrah Jute Mills and instructed the defendant to send the lorries to his principals place at the Calcutta Hydraulic Press. The employment was oral and was on a promise to pay remuneration fixed on the basis of the bales to be carried (Plaintiff - Q. 341-46). It appears that the defendant used to obtain payment of the hire against bills made out in the name of and submitted to the plaintiff. On the same day, the defendant sent its lorries Nos. WBQ 927 and WBL 4327 to the Calcutta Hydraulic Press with drivers and coolies. The lorries were loaded with the goods as usual. One Ujagar Singh, an employee of the defendant, supervised the loading. Dhirendra Prosad Dutta Gupta,
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