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Judgment
Shaffique, J.—Defendant is the appellant. Parties are referred to as plaintiff and defendant. The plaintiff filed a suit for damages claiming an amount of Rs. 1,21,525/- with future interest on the principal amount of Rs. 1,06,806.25/- being damages suffered by the plaintiff on account of loss of goods entrusted for carriage to the 1st defendant.
According to the plaintiff 36 cases of medicines were entrusted to the 1st defendant for carriage from Calicut to Thrissur on 21/6/1995. All the goods were lost on account of a fire in the godown of the 1st defendant at Thrissur. The value of the goods lost was Rs. 1,06,806.25/-. The plaintiff claimed the said amount by letter dated 01/09/1995 and since the 1st defendant did not respond by compensating the plaintiff, after issuing a lawyer''s notice dated 04/12/1995 the suit is filed.
A.S.No.953 of 1998
The 1st defendant filed a written statement contending that the goods were lost on account of a fire which was not due to their negligence in handling the goods and was only on account of an unforeseen act. So, according to the defendants, since there was no negligence on their part and the goods were destroyed for reasons beyond their control they have no obligation to compensate the plaintiff. Defendants 2 and 3 remained ex parte. They were consignees of the goods.
The court below framed issues as to whether the damages to the goods were caused due to the reasons beyond the control of the 1st defendant and whether the plaintiff was entitled to get compensation for the damage to goods and if so what is the compensation.
The plaintiff relied upon the oral testimony of PW1 and Exts.A1 to A7. Defendants relied upon the oral testimony of DW1 and Exts.B1 to B4.
The court below found that the 1st defendant being a carrier cannot escape the liability to pay the value of the goods lost while it was in their custody and hence the suit was decreed permitting the plaintiff to recover an amount of Rs. 1,06,806.25/- with future interest @ 6% per annum from the date of suit till realisation and cost of the proceedings.
The 1st defendant impugns the above judgment and decree. According to the learned counsel appearing for the 1st defendant, the accident of fire was not caused due to the negligence of the 1st defendant and since there was no negligence on their part, plaintiff is not entitled to claim any compensation from the 1st defendant. It is also contended that plaintiff being the consignor cannot recover any loss as the title to the goods had already passed on to defendants 2 and 3 when the goods have been entrusted to the plaintiff. The point therefore for determination is
i) Whether the 1st defendant can escape from the liability to pay compensation by contending that there was no negligence on their part in the cause of fire?
ii) Whether the plaintiff as the consignor is entitled to file a suit for damages since the title to the goods had passed on to defendants 2 and 3 at the time of entrustment of the carriage?
In regard to the question of negligence, the first point to be considered is the cause of fire. Though the defendant has contended that there was a devastating fire which started adjacent to the godown of the defendant and fire spread to all the adjacent rooms in the building and that on investigation by the police it was found that a thief had entered into the godown where gunny bags and other combustible goods were stored and the fire was caused by the cigarette which the thief was smoking the evidence adduced in the case does not disclose any such cause of fire. Ext.B2(a) is a true copy of the fire report which only shows a statement that certain items in the building have been damaged on account of the fire and a full and accurate details of any matter contained in the report can be determined only after investigation by the approved agency. Ext.B3 is a mahazar prepared by the police which does not indicate anywhere the cause of fire accident. Ext.B4 series are certain newspaper reports which would show that there had been a fire in certain godowns and that the fire could have been caused at the time of lighting a match in an attempt to commit theft. In one report, it is stated that a lighted cigarette would have caused the fire. Newspaper reports can never be taken as evidence in a court of law as they are only hearsay. Therefore it cannot be said that there is any proof worthy of acceptance to show the cause of fire. In the absence of any proof regarding the cause of fire it cannot be contended by the defendant that there was no negligence on their part.
The liability of the carrier is that of an insurer of goods. Carrier has got absolute liability to store the goods in a proper place and to see that the same reaches destination without any loss. Any loss of goods will be obligation of the carrier and unless it is shown that the accident was on account of a reason not attributable to them or on account of a force majeure situation they cannot shirk out from their liability.
It is argued by the learned counsel that since the plaintiff had alleged that there was negligence on the part of the 1st defendant, the plaintiff is under obligation to prove the same. The said proposition does not seem to be correct. Section 6 of the Carrier''s Act itself provides an answer which reads as follows:
In respect of what property liability of carrier not limited or affected by public notice. Carriers, with certain exceptions, may limit liability by special contract.- The liability of any common carrier for the loss of or damage to any [property (including container, pallet or similar article of transport used to consolidate goods) delivered] to him to be carried not being of the description contained in the Schedule to this Act, shall not be deemed to be limited or affected by any public notice; but any such carrier, not being the owner of a railroad or tramroad constructed under the provisions of Act 22 of 1863 (to provide for taking land for works of public utility to be constructed by private persons or Companies, and for regulating the construction and use of works on land so taken) may, by special contract, signed by the owner of such property so delivered as last aforesaid or by some person duly authorised in that behalf by such owner, limit his liability in respect of the same.
Therefore in the absence of any special contract the liability of the carrier is absolute. Hence, we are of the opinion that the court below was justified in finding that the 1st defendant was responsible for the loss caused. In regard to the second point for determination, the learned counsel further contends that the plaintiff has no right to claim compensation, as the title to goods has passed on to the buyer who is the consignee. It is relevant to note that there is no such pleading by the defendant. Only if the defendant had raised a contention that the title to the goods has passed on to the buyer, the plaintiff could be called upon to adduce necessary evidence regarding the same. In the absence of such a pleading there is no necessity to consider the said contention as well.
Under these circumstances, we do not find any merit in the appeal. There is no reason to interfere with the decree and judgment of the court below. Hence the appeal is dismissed.