D.Basu, J. - (1.) This second appeal is directed against a decree of the learned Distant Judge of Darjeeling by which he affirmed the decree of the learned Subordinate Judge awarding Rs. 1170/- as damages on account of the loss of a consignment of a tea booked by the plaintiff-respondent for carriage by the defendant-appellant, the Air Carrying Corporation, from Darjeeling to Calcutta.
(2.) The plaintiff's case was that the defendant Corporation failed to deliver the goods at their destination, on account of its negligence. The defence was that the loss was due to an act of God, or the accidental destruction of the air-craft by which the goods were being transported. It is the concurrent finding of both the Courts below that the loss of the plaintiff's goods has been occasioned by the negligence of the defendant Corporation and not an act of God, and the learned Advocate for the defendant-appellant has confined his argument to a question of law, namely, that even assuming that the loss of the goods was due to the negligence of the Corporation, it was not liable in view of the special contract, to wit, the terms of note 2 to the consignment from subscribed by the plaintiff, which exempted the defendant Corporation from any liability for the loss of the goods, whether due to accident, negligence or any other cause. This question of law was agitated before the court of appeal below but was rejected on the ground that Sections 151 and 152 of the Contract Act governed the liabilities of the defendant-Corporation and that even it the consignment form purported to con-tract out of the statutory liability laid down by the aforesaid provisions of the Contract Act, such contract, was invalid and inoperative.
(3.) On this question of law, however, there is a Division Bench ruling by my learned brother sitting with Niyogi, J., to the effect that the liability of a common carrier by air, other than an international carrier, is governed, in India, not by any of the statutes in force, such as the Carriers' Act, 1865, the Indian Carriage by Air Act, 1934, or the Indian Contract Act, 1872, but by the Common Law of England which acknowledged that a common carrier might exempt himself from liability by a special contract and that by such special contract even liability due to negligence could be excepted : Indian Airline, Corporation v. Keshavlal.;