Applicability to carriage by air.

The respondent, a merchant at Madras, sent on 9th March, 1955, a parcel of pen nibs valued at Rs. 1,600 to Calcutta, through the Indian Airlines Corporation, the petitioner. Before accepting the goods for carriage, the petitioner issued a consignment note, Exhibit P-1. It sets out the terms and conditions of the carriage. In the front portion of Exhibit P-1, the agent of the respondent, who despatched the goods, signed a statement stating that he was aware of and was accepting the general conditions of carriage and special conditions, more particularly referred to or set out on the reverse of that document. One of the special conditions, which is legibly printed on the reverse of the consignment note was that the carrier, namely, the petitioner,

“shall be under no liability whatsoever to the consignor or to the consignee, etc., for loss damage, detention or delay to the goods arising out of the carriage . . . whether or caused or occasioned by the act, neglect, negligence or default of the earner or of pilots, flying, operational or other staff or employees or agents or the carrier or otherwise however. . . The said exemption from liability and indemnities in favour of the carrier extend to the carriage of surface transport of the goods to or from the airport at a place of embarkation, destination, etc . . the custody, loading or unloading of the goods into and from aircraft or surface transport and all other services and operations of the carrier whatsoever. It was however, stipulated that in so far as any liability may be imposed on the carrier by law, such liability for loss or damage to the goods, etc. would be limited and agreed to be in the aggregate the actual value thereof or the declared value thereof or Rs. 300 whichever is the lowest, notwithstanding that any loss, damage or delay may have been caused or occasioned by the act, neglect, negligence or default on the part of the Carrier”.

It appears from the evidence that the goods were actually despatched from Madras to Calcutta by the night air mail service on 9th March, 1958. But the goods were not delivered to the consignee. The enquiry made into the matter by the petitioner, the Indian Airlines Corporation, did not enable them to trace the missing parcel. The respondent, thereupon, filed the suit out of which the present revision petition arises in the Court of Small Causes, Madras, to recover a sum of Rs. 1,858 together with costs, the said sum representing the value of the goods despatched and damages for the loss. The petitioner contested the claim. The written plea filed on its behalf merely stated that the plaintiff Bad no liability under the terms and conditions of the contract. Evidence was let in on behalf of the parties, and the learned Chief Judge of the Court of Small Causes, who tried the case, held that the parties were bound by the terms and conditions of the consignment note, and that the respondent was entitled to a decree only for Rs. 300 in accordance with the conditions of the contract contained therein. Aggrieved by this, the respondent filed an application for a new trial before the Full Bench of the Court of Small Causes. The Judges, constituting a Full Bench, held that the terms and conditions printed on the reverse of Exhibit P-1 was not brought to the knowledge of the respondent so as to make them binding on him and, after going elaborately into the liability of a common carrier under the English Law, for negligence, held that the petitioner would be liable under section 8 of the Carriers Act. On the further finding that there was negligence on the part of the Airlines Corporation, they held that the respondent was entitled to a decree as prayed for and passed one accordingly. The petitioner has filed this revision petition against the decree so passed.

Two questions were argued before me in the revision petition by the learned advocates appearing on either side. The first was whether the terms and conditions limiting liability of