NATIONAL TOBACCO CO OF INDIA LTD Vs. INDIAN AIRLINES CORPORATION
HIGH COURT OF CALCUTTA
NATIONAL TOBACCO CO. OF INDIA LTD.
INDIAN AIRLINES CORPORATION
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U.C.Law, J. -
(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?;
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