P.K. KALASAMI NADAR Vs. ALWAR CHETTIAR AND ORS.

JUDGEMENT

(1.) PONNUSWAMI Mudaliar, the first respondent, purchased at Koilpatti through his agent the 2nd respondent, 26 boras of karunganni cotton, and entrusted it on 5 -8 -1952 to the appellant who runs a lorry service for transport of gods as a common carrier, for being carried and delivered at Coimbatore. The lorry hire was to be paid at the destination. The goods were loaded in the lorry of the appellant, and it commenced its journey on the same day. While the lorry was passing near Oddanchatram, a place in the Madurai District, it was noticed that the cotton bales had caught fire, the origin and cause of which is not being ascertainable from the evidence. Efforts were made to put down the fire; but without success. The driver and D.W. 1 were able to salvage two or three boras of cotton at great personal risk; the rest was entirely consumed by the fire. The appellant did not even deliver to the first respondent 1 the salvaged cotton. In these circumstances, respondents 1 and 2 instituted the suit, out of which the appeal arises, for recovery of a sum of Rs. 6730 -13 -6 with subsequent interest as damages for the loss of goods. The claim was mainly rested on the plea that the appellants had failed to deliver the consignment "as agreed". There was also the plea that the loss of goods was occasioned by the gross negligence of the appellant and his servants, and that the former was further liable as a common carrier for their non -delivery. The suit was instituted in the Court of Subordinate Judge Coimbatore, on the ground that a part of cause of action arose at Coimbatore, where the cotton was agreed to be delivered and lorry charges paid.

(2.) IN appeal Mr. K. S. Ramamurthi, the learned counsel appearing for the appellant, raises two contentions. The first is that even as a common carrier the appellants' liability would be merely that of an ordinary bailee under Secs. 151 and 152 of the Indian Contract Act, and that as in this case it has been proved that he had taken as much care of the goods as a man of ordinary prudence would have taken of his own goods, he would not be charged for the loss of the consignment by reason of an accidental fire. The second contention is that the claim for damages based as it was on an alleged breach of duty on the part of a common carrier, should be held to be on tort, and the cause of action could be held to arise only at the place where the accident took place, and that not being within the jurisdiction of the Coimbatore Court, the lower Court had no jurisdiction to entertain the suit.

(3.) IN the Irrawaddy Flotilla Co. V. Bugwandas,, ILR 18 Cal 620, the Privy Council held that the duties and liabilities of a common carrier in India were governed by the principles of the English common law recognised in the Carriers Act of 1865, and that his responsibility to the owner was by virtue of his exercising the public employment for reward an as incident to the contract between him and the consignor. Under Sec. 3 of the Carriers Act, a common carrier would not be liable for loss of damage of goods above Rs. 100, in value which come within the schedule of the Act, unless the value of the goods has been declared expressly of by the consignor. Cotton is not one of the goods specified in the schedule. Under Sec. 5, in a case of loss the consignor would be entitled to recover not merely the value of the goods, but also the charges paid for carriage. It will be open to a carrier to limit his liability by a special contract, signed by the owner of the goods. Vide Sec. 6. In the present case, there is no special contract, signed by the consignor excluding the liability of the common carrier. Section 9 embodies the common law principle that the plaintiff in a suit for loss, damage, or non -delivery would not be required to prove negligence, for the obvious reason that the liability of common carrier is that of an insurer. It would, therefore, follow that, notwithstanding the fact that there was no negligence on the part of the appellant, he would be liable to compensate the first respondent for the loss of the goods that occurred during the carriage thereof by the lorry belonging to the former. We, therefore, agree with the conclusion arrived at by the learned subordinate Judge on this question.