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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE GOVARDHAN
The Divisional Manager, New India Assurance Co., Ltd., Madurai
Versus
Murugan, Proprietor M/s. Murugan Transports, Sivakasi
Appeal No. 172 of 1984
Decided On : 23-02-1996
CARRIERS ACT - SECTION 9 - LIABILITY OF COMMON CARRIER - SUMMARY
Fact of the Case:
The plaintiff, an insurance company, paid the claim of the consignor for the loss of goods in a fire accident while being transported by the defendant, a lorry broker. The defendant denied liability, claiming he was not the owner of the lorry and was only a broker. The trial court dismissed the plaintiff's suit, holding that the defendant was not a common carrier and was not liable for the loss.
Finding of the Court:
The High Court held that the defendant was a common carrier and was liable for the loss. The court found that the defendant had issued receipts for the goods, admitted in writing that the lorry belonged to him, and failed to respond to the consignor's claim letter. The court also held that the clause in the lorry receipt stating that the goods were carried at the owner's risk was not valid and did not limit the defendant's liability.
Issues: 1. Whether the defendant was a common carrier. 2. Whether the defendant was liable for the loss of the goods. 3. Whether the clause in the lorry receipt limiting the defendant's liability was valid.
Ratio Decidendi: 1. A person who agrees to transport goods to the public is a common carrier and is liable for damages if an accident occurs during the course of the contract. 2. A common carrier's liability is that of an insurer and can only be limited by a special contract. 3. A clause in a lorry receipt stating that the goods are carried at the owner's risk is not valid and does not limit the carrier's liability.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the trial court, and decreed the suit in favor of the plaintiff.
1. Plaintiff is the appellant.
2. The National Paper Caps Company have sent 216 bundles of caps and Roll caps in the lorry TMA 8955 belonging to the defendant from Sivakasi to Raipur and Nagpur. The consignment was insured with the plaintiff. On 29. 1978, the entire consignment was destroyed in a fire - accident due to the negligence of the defendant. The lorry driver gave an information to the consignor. They made a claim with the plaintiff and the defendant. The plaintiff has settled the claim of the consignor by making payment of the suit amount. But, the defendant has not sent any reply to the notice issued by the consignor. The consignor has given a power of attorney and letter of subrogation to the plaintiff. Hence the plaintiff has come forward with the suit.
3. The defendant has resisted the suit by contending that he was only a lorry broker at Sivakasi who is engaged in booking and loading consignments of the various consignors at Sivakasi to other places in the lorries that come to Sivakasi and he is not the owner of TMA 8955. According to the defendant, he was only a broker who carries on business on commission basis and he is not the owner of a public carrier and therefore he has no contract with the consignor. The defendant has also resisted the suit by contending that the suit is bad for non-joinder of the owner of the lorry and the driver.
4. On the above pleadings, the learned Subordinage Judge, Srivilliputhur has held that the defendant was not the owner of the common carrier and therefore, he is not bound to pay the suit claim and the plaintiff has no right to make a claim against the defendant on the basis of the power of attorney and letter of subrogation given by the consignor and dismissed the suit.
5. Aggrieved over the same, the plaintiff has come forward with this appeal.
6. 216 bundles of caps and Roll caps were sent to Nagpur and Raipur in the lorry bearing No. TMA 8955 from Sivakasi is not in dispute. It is also not in dispute that the defendant had issued receipts to the consignor under Exs. A-3 to A-8. The entire Consignment was destroyed in the fire accident enroute is also not in dispute.
7. The consignor has made a claim for the value of the goods entrusted for safe carriage of the delivery with the Insurance Company with whom they have insured the consignment and also with the defendant. The defendant resisted the suit by contending that he is not the owner of the lorry bearing No. TMA 8955 and he is not a common carrier, and this version of the defendant has been accepted by the trial court. The defendant claimed that he is only a broker engaged in booking lorries for consignments to be sent from Sivakasi to other places on commission basis. The lorry receipts under Exs. A-3 to A-8 were issued by the defendant. But, yet, the defendant contends that he is only a broker and he is not liable for the suit claim. The trial court has observed that evidence of the plaintiff is not establishing that the consignment was entrusted to the defendant for safe carriage and delivery. The trial court has also observed that it is for the plaintiff to prove that the consignment was entrusted to the defendant as a common carrier and the consignment was destroyed on account of the negligence of the defendant. But, when the defendant has issued five receipts, it cannot be stated that the Consignment was not entrusted to the defendant for safe carriage and delivery at the destination. Further, Ex.A-21 is a letter in the Letter pad of the defendant in which, the defendant has stated that while 216 bundles were carried on in their lorry bearing registration No. TMA 8955 as per the invoice dated 29. 1978, fire accident took place at Bagalur in between Bangalore and Hyderabad and it was informed to them by their lorry driver Veerappan and that on account of the fire accident, the entire consignment in the lorry has been destroyed and they are communicating the said information to the consignor viz.
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