A common carrier is liable for loss unless exempted by a special contract or act of God, which must be proved by the carrier.

1. The defendant in O. S. No. 6 of 1979 on the files of the Court of Additional Subordinate Judge, Cochin is the appellant.

2. The appellant was entrusted with a consignment of 530 tins of Torch Brand Coconut Oil, each tin weighing 15.900 kgs. to be delivered to the 2nd respondent at Bombay. As per the goods consignment note dated 7-6-1977, evidenced by Ext. A2 the value of the consignment was Rs. 93,000/-. The lorry in which the consignment was transported was involved in an accident. According to the respondents, the accident took place as a result of the negligence and carelessness of the driver of the lorry. The accident took place on 8-6-1977. A crime was registered at the Payyannur Police Station as Crime No. 121/77 in respect of the accident. The 1st respondent went to the scene of accident. The damages were got assessed through an independent Surveyor and Ext, Al dated 11-6-1977 is the report of the Surveyor. The loss was calculated at Rs. 26,910/-. On 29-6-1977 a claim was preferred by the 1st respondent with the appellant. To this, the appellant sent a reply stating that the accident occurred as a result of act of God and directing the 1st respondent to prefer the claim with the 3rd respondent, the Insurance Company. Thereafter, the third respondent Insurance Company settled the claim for Rs. 27,540/- and addressed the appellant to pay the amount since it had settled the claim with the 2nd respondent. The appellant repudiated the claim alleging that the goods were carried at 'Owner's risk'. It is in these circumstances that the above suit was filed.

3. In the written statement, the appellant contended that the suit is not maintainable since the damage to the consignment was occasioned in an accident which is an act of God and therefore the appellant is not liable to pay the damages. The entrustment of the consignment with the appellant was admitted by the appellant. It was further contended that the appellant was only an agent for transport of goods engaging various lorries owned by different people. It was also contended that the claim was settled by the 3rd respondent and the 3rd respondent has no cause of action to prefer the suit.

4. In support of the respondent's case, PWs 1 to 3 were examined and Exts. Al to A9 were marked. On behalf of the appellant, D. W. 1 was examined.

5. After consideration of the oral and documentary evidence, the lower court held that the respondents have not established that the accident took place as a result of an act of God. The lower court also rejected the plea of the appellant that the goods were transported at 'owner's risk' and passed a decree as prayed for with costs and future interest at the rate of 6% per annum till the date of recovery.

6. The learned counsel for the appellant raised three contentions in the appeal: (1) Condition No.3 on the reverse of Ext.A2 consignment note to the effect that the Company shall not be liable for any loss or damage due to pilferage, theft, weather conditions, strikes, riots, disturbances, fire, explosion or accident is a special contract and since the damage was caused as a result of accident the appellant is not liable to pay any damage; (2) Since the accident took place as a result of an act of God, the appellant is not liable to pay damages for the loss; and (3) the lorry in which goods were transported did not belong to appellant and therefore he is not a common carrier and no liability is fastened on him under the Carriers Act.

7. Learned counsel heavily relied on Condition No. 3 on the reverse of Ext.A1 consignment note and contended that this condition absolved the appellant of any liability to pay damages caused in an accident. To appreciate the tenability of this contention, it is relevant to notice the provisions in S.6 o