- (1.) These appeals raise an interesting question of law about the extent of liability of a carrier by air. In a very recent decision of this Court in River Steam Navigation Co., Ltd. v. Syam Sunder Tea Co., Ltd.,1955 AIR(GAU) 65 to which I shall presently refer, I had occasion to consider this question elaborately; but. I confess that at that stage I had not the privilege of examining with as much care and minuteness the observations of Sir Sankaran Nair in his dissenting judgment in Sheik Mahomed Ravuther v. British India Steam Navigation Co., Ltd., ILR 32 Mad 95. The decision of this eminent Judge has made me consider the question afresh with added interest even though ultimately I have persuaded myself to adhere to the conclusion which I reached in my earlier judgment. Before I proceed to deal with the question of law, it would be just as well to refer to the relevant facts, which have given rise to Second Appeal No. 76 of 1954 in order to illustrate the point canvassed.
(2.) S.A. No. 78 of 1954: The Defendant No. 2, Bhojanlal Sriniwas, said to be an agent of the Plaintiff, despatched 24 cases of electric goods to be carried by air by the Defendant No. 1 from Calcutta to Gauhati. The goods were consigned on 6-9-1951, and when the delivery of the goods was taken on the 11th of September, it was found that one case was missing. As the claim of the Plaintiff was not settled, he instituted this suit for recovery of the price of the goods lost with costs and commercial rate of interest. The Defendant No. 1, which is admittedly a public limited company carrying on business of transporting passengers and goods by air from Calcutta to Gauhati, entered appearance and contested this suit. The fact that the goods were delivered to the Defendant No. 1 for carriage from Calcutta to Gauhati by air is not denied. But the substantial plea taken by this Defendant is that it was protected under the terms of the consignment note or bill of lading on the strength of which the goods were delivered to the Defendant company for carriage by air. The Defendant also pleaded limitation and challenged the locus standi of the Plaintiff to institute the suit, the Plaintiff not being either the consignor or the consignee of the goods in question. The plea that the Defendant No. 1 was entitled to the benefit of the clause exempting it from liability in the consignment note has prevailed with the two Courts below and hence this appeal by the Plaintiff.
(3.) The main question which, therefore, falls to be decided in this case is whether the Defendant Airways is entitled to claim exemption from liability under the terms of the consignment note. The learned Counsel for the Appellant contends that the liability of the carrier is governed by the provisions of Sections 151 and 152 of the Indian Contract Act, 1872 (Act IX of 1872), and the Defendant stands in the position of a bailee of the goods delivered. As such the Defendant is liable for loss or damage done to the property consigned for carriage. If the liability of the Defendant is held to be governed by the Indian Contract Act, then there can be no doubt that the Defendant was bound to show that as a bailee it had taken as much care of the goods bailed to it as a man of ordinary prudence would under similar circumstances and it could not claim exemption because of any stipulation in the consignment note limiting its liability against the provisions of the Contract Act. But the argument of the Defendant is that the liability of the carrier does not arise under the Indian Contract Act, but under the common law of England as administered by the Courts in India, and as such it was open to the carrier to define and limit its liability by a contract between itself and the consignor of the goods.;