Niranjan Lal Ratankumar vs River Steam Navigation Co. Ltd. and Another

G. Mehrotra, C.J.—This is plaintiff''s appeal arising out of a suit for recovery of Rs. 7,357/6/6 as damages. plaintiff is a registered partnership firm carrying on business at Gauhati. The plaintiffs case is that under invoice No. 10691, S/R 83 dated 12th March 1956, 250 bags of flour were dispatched from Jagannath Ghat to Gauhati Bazar Ghat. Another consignment of 100 bags of flour by invoice No. 10705 S/R 98 was also booked on the same day from Jagannath Ghat for carriage to Guahati Bazar Ghat. The plaintiff went to take delivery of the said consignments at Gauhati Bazar Ghat and found the goods of the consignments damaged. The assessment delivery was taken. The amount of damage suffered by the plaintiff was recorded in the delivery register in the office of the Steamer Company at Gauhati Bazar Ghat. As damage was caused to the consignments due to the negligence and misconduct on the part of the servants of the Defendant Company which carry on the work of carrying goods on steamer, the plaintiff is entitled to the damages claimed. The plaintiff has claimed Rs. 5,750 as the damage of the consignment under invoice No. 10691 and the balance for the consignment booked under invoice No. 10705.

Three money suits Nos. 10, 11 and 13 of 1957 were disposed of by the Court below by one judgment. Suit No. 10/57 was filed for sic.every of 3450-6-0 and related to a consignment of 200 bags of sugar under invoice No. 10704 dated 12-3-56. The present appeal relates to the suit No. 11/57. Suit No. 13/57 relates to a sum of Rs. 2,613-14-6 in respect of a consignment of Arhardal booked through the Defendants under invoice No. 10701 dated 12-3-56. All these consignments were booked from the same Ghat and to the same destination. We are, however, concerned in this appeal with the claim of Rs. 7,357-6-6 which was the subject-matter of Money Suit No. 11/57.

The trial Court dismissed all the suits. Regarding the consignment under invoice No. 10705 S/R 98 the finding of the Court below is that the plaintiff has not proved the endorsement of the steamer receipt in his favour in respect of the aforesaid invoice. He has, however, dismissed the suit on the finding that the loss was caused by the act of God and the plaintiff was not entitled to any damages. The finding of the Court below is assailed in appeal both on the question of endorsement of invoice No. 10705 and on the question of fact as to whether the damage was caused on account of the act of God. So far as the suit relating to the invoice No. 10705 S/R 98 is concerned we are of opinion that the plaintiff had no right to maintain the present suit as he has not succeeded in establishing the transfer of the steamer receipt in his favour.

In respect of this consignment he has claimed a sum of Rs. 1,607-6-6 as damages. In paragraph 2 of the plaint plaintiff has definitely stated that two consignments of flour were booked under two steamer receipts as noted below and delivered to the Defendant carriers at Jagannath Ghat for carriage to Gauhati Bazar Ghat and all the documents of title to the said consignments were duly endorsed in favour of the plaintiff, thereby making the plaintiff entitled to take delivery of the goods or to receive compensation for non-delivery or short delivery of damages to the goods. He based his claim on endorsement in his favour of the documents of title. Shri Madan Lal Bawari examined on behalf of the plaintiff admits in his evidence that the consignment under Invoice No. 10705 was booked by one Messrs. Kishanlal Suruha to self and there is no endorsement of the consignment in favour of the plaintiff. The plaintiff thus was not right in asserting that the said invoice really was endorsed in favour of the plaintiff.

Mr. Lahiri who appears for the Appellant, has contended that even though there was no endorsement in favour of the plaintiff, as the steamer receipt which is a document of title, was produced from the custody of the plaintiff and on the basis of which he got assessment delivery, he is entitled to sue. For this he relies upon Section 8 of the Carriers Act, 1865 (Act III of 1865) (hereinafter called ''the Act''), relevant provision whereof provides:

Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried.

He contends that it is the owner of the goods who suffered loss, is entitled to bring a suit for damages. In support of his contention he has referred to the case of ''Commr. of The Commissioner of Income Tax, Madhya Pradesh and Bhopal, Nagpur Vs. Bhopal Textiles Ltd., Bhopal, He has referred to the following passage at p. 428:

A railway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed ever to the consignee on payment, the property, in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court.

Under Section 8 of the Act the owner is entitled to get damages but the plaintiff had neither claimed in the plaint that he is the owner of the goods nor has he led any evidence to show that the goods were purchased by him or by his agent. He has thus not succeeded in establishing his title to the goods, apart from the steamer receipt. As laid down by their Lordships of the Supreme Court in the case referred to above, the steamer receipt may be treated as a document of title and if the plaintiff had succeeded in proving that it had been handed over to the plaintiff on payment of the money, it could have been held that by such delivery of the receipt the plaintiff acquired title to the properly and was entitled to bring a suit. But this fact also has not been proved. Merely because the railway receipt has been produced from the custody of the plaintiff and on the basis of that receipt he got an assessment delivery, the plaintiff cannot contend that he acquired title either to the receipt or to the goods and he has no right to bring a suit on the basis of the said invoice.

The Counsel for the Respondents relied upon the cases of Mahadeo Ram Bhimeswar, Firm and Others Vs. The Union of India (UOI), and Ram Narain Vs. The Dominion of India, New Delhi and Another, which no doubt support the contention of the Respondents.

The Respondents, however, have tried to support the judgment of the trial Court with regard to the other consignment under invoice No. 10691 on the ground that the endorsement has not been proved by the plaintiff. The plaintiff claimed that the steamer receipt had been duly endorsed in favour of the plaintiff. In support of his contention he examined Madanlal Bawari who states that the invoice No. 10691 S/R 83 dated 12th March 1956 has been endorsed in plaintiffs favour. The invoice has been marked as Ext. L and on the back of the steamer receipt, there is an endorsement in favour of the plaintiff purporting to have been written by someone on behalf of the consignee Ram Chandra Shiwduttrai and in the absence of any challenge on this point by the Defendants Respondents and in the absence of any evidence to show that the person who signed below the endorsement was not an agent of Messrs. Ram Chandra Shiwduttrai, it cannot be said that there was no proper endorsement in favour of the plaintiff.

The main question, however, remains that the damage was due to an act of God as found by the Court below. The finding of the Court below has been assailed. The case of the Defendants as set out in paragraph 7 of the written statement is as follows:

That the circumstances in which the suit consignment became wet and/or damaged have been detailed in the protest sworn by the Serang of Shore Godown No. 1.

The Defendants deny that they have been negligent in any way. The Defendants aver that they took all possible care to protect the suit consignment and to minimise loss after it was involved in an Act of God.

The protest note does not form part of the written statement. In paragraph 8 it is stated that the damage to the suit consignment if any was due to an act of God and not to any laches on their part or their servants.

In paragraph 9 it is stated that in the circumstances and as per contract of carriage no liability rests with the Defendants and the plaintiff is not entitled to recover any damages from them. The protest note which according to written statement contains the circumstances in which the damage was caused to the consignment does not form part of the written statement and thus the facts and the circumstances under which the damages were caused to the consignment are not set out in the written statement at all.

The case, however, as disclosed in the protest which was an affidavit filed by one Searam Mahato on the 28th March 1956 is as follows:

That on 22nd March 1956 I was in charge of this Godown. The Shore Godown No. 1 was in good order and condition in every way the roof being weighed with sand bags and lashed down with bamboos and ropes, thereby strengthening it further.

That on 10th March 1956 a storm with high wind and rain did not have any effect on Shore Godown No. 1 whatsoever.

That on 22nd March 1956 Shore Godown No. 1 was filled with general cargo booked from Calcutta to Gauhati Bazar Ghat.

On the date last mentioned at approximately 17.00 hours a severe storm struck Gauhati. Godown No. 1 being in an open place took the full force of the wind and part of the walls and roof were blown away. The storm, which lasted for about half an hour, was so intense that telegraph poles, wires, trees some houses in Gauhati fell before its fury.

That the cargo was then exposed to the heavy rain that accompanied the storm.

That my crew and I immediately covered the cargo with tarpaulins as best as we could, to protect it from getting wet further.

That on the morning of 23rd Marcs 1956 labourers were employed to remove the cargo. The cargo in the schedule below was found wet by the heavy rain.

The cargo listed in the schedule was laid out in the sun to dry but notwithstanding all efforts the damaged cargo could not be conditioned.

That the destruction of Shore Godown No. 1 was an act of God impossible to avoid and there was no negligence or neglect of duly of the crews of Godown No. 1 and I protest against the said damages done to the cargo in the schedule below due to extraordinary circumstances beyond the control of the crews of Shore Godown No. 1.

This document has been marked Ext. G.

An attempt has been made in the evidence of Benode Behari Bhadra witness No. 2 for the Defendants to show that Shiaram Mahato was the godown-in-charge at Gauhati on 22nd March 1956 and he was no longer in Defendants service and his whereabouts were not known at all. He left his service after he had lodged the protests concerned in these cases. The case of the Defendants thus is that as Shiaram Mahato could not be found, the affidavit filed by him along with the protest note to the Magistrate is admissible in evidence. We do not think that the contents of that affidavit can be taken in evidence. No law has been pointed out at all to us under which such a protest could be lodged. Nor has it been successfully established that Shiaram Mahato could not be produced. He is still alive. If this affidavit cannot be taken in evidence, there is no allegation at all in the written statement giving the details of the circumstances under which the damage was caused to the consignment.

The Court below has then relied upon a news item published in the Assam Tribune in corroboration of the statement of Benode Behari Bhadra that there was a very severe storm in the city of Gauhati on the 22nd March 1956. We do not think that the news item by itself is evidence which can be admitted. We are thus left with the statement of Benode Behari Bhadra. Besides proving Exts. G and H which are the protests and Exts. G(1) and G(2) and H(1) and H(2) which are signatures of Shiaram Mahato on these documents, he has stated that the godown was in a very good condition. The roofs were of corrugated iron sheets fixed bamboos, the roofs were weighed with sand-bags and tried with ropes, the posts of godown were of bamboos, and all precaustions were taken against storm. The floor was them but covered with bamboo mats and these bamboo mats were then covered with planks. The walls were of Torjas. He has then deposed that on the 10th March 1956 there a heavy storm at Gauhati. The godown was in tact in that storm.

There was a big storm again on 22nd March 1956. In this storm their godown was badly affected. Serious damage was caused to various trees and buildings in Gauhati town in that storm. Then he has proved the news published in the Assam Tribune dated 23rd March 1956. He further states that there was no laches or negligence on the part of the servants of the Defendant company. It was an act of God. The employees of the Defendant company took all possible steps to save the properties of the consignments concerned from sustaining damage but could not help. In cross-examination he says that he cannot recollect the exact time of the storm. It was sometime after afternoon. He was present at the flat at the time of the storm. He says that it was a rare happening and could not be anticipated. The floor was sandy. He examined the godown and its post after the storm on the 10th March 1956 and found everything all right. He further says that those who worked in the godown after the storm for repairing the same are not in service now.

It will appear from his statement that he was not present near the godown at the time of the storm. He is thus not in a position to say from his personal knowledge as to how the storm affected the building at what stage of the storm the roof was blown out and when did the water start going through the godown and the goods kept therein got wet. This witness at the most proves the fact that there was a Storm of great intensity on that date. But how far that storm affected the building, and in what manner the goods kept in the godown were damaged as a result of the storm and rain are matters which he cannot depose to from his personal knowledge. Whether the storm by itself is an act of God is not a question which we have to determine. The Defendants will not be liable to pay damages only if they succeed in proving that the damage was the direct and exclusive result of the storm.

The Defendants have further relied upon the special contract embodied in the receipt. Clause 5 of the receipt is as follows:

The company shall not be liable for loss, damage or delay to any property delivered to be carried directly or indirectly resulting or arising from latent defects of any kind in hull boiler engines, machinery ship''s tackle equipment or appurtenances at the commencement or at any stage of the voyage provided reasonable means have been taken by the company to ensure efficiency or for loss damage or delay directly or indirectly caused by or arising from the act of God. State''s enemies, piracy, robbery, theft or pilferage with or without violence on board or elsewhere and whether by persons in the service of the Company or not arrests and restraints of princes, rulers or people or persons purpoting to act on their behalf, riots and civil commotions, strikes, lockouts or other labour disturbances, barratry, jettison, collision, fire breakage or leakage (vermin), sweet rust, temperature of holds climate, rain injuries effect of other goods whether by contact or otherwise howsoever perils dangers or accidents of the sea rivers or navigation, storm tempest or stress of whether or any other loss, damage or delay of whatsoever nature or kind howsoever caused unless such loss or damage shall have arisen from the negligence or criminal act of the Company''s own servants or Agents.

Even on the term of the special contract the Defendants had to prove that the damage was exclusively the result of the storm. Moreover the special contract is of so avail when as a result of the negligence or any criminal act of the Defendants the damage is caused.

Under the Act, the common law liability, of a carrier has been modified only to this extent that it can be limited by a special contract as provided for u/s 6 of the Act. Section 8, however, which is an overriding section, lays down that in the case of the negligence or criminal act of the carrier, the special contract will be of no avail to the carrier. Section 9 of the Act lays down that in any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents. This section lays down that the plaintiff has not to prove that the loss or damage was due to the negligence or criminal act of the carrier. The effect of Sections 6, 8 and 9 taken together is that the common law liability of the carrier remains, with this modification that it can be limited by the provisions of Section 6 by a special contract. But Section 8 is not subject to Section 6 and thus if the loss is due to negligence or criminal act of the carrier, the carrier will be liable notwithstanding the special contract and as u/s 9 the plaintiff is not to prove the negligence or criminal act of the carrier, in the absence of anything to show by the carrier itself that there was no negligence of the carrier, the Carrier will be liable for the damage caused to the goods which it undertakes to carry. If the loss is due to an act of God, obviously it cannot be due to the negligence of the carrier and in that sense also if the carrier succeeds in proving that the damage was the result of the act of God, he can be said to have succeeded in proving that it was not due to the negligence or criminal act of the carrier and thus both under the special contract and Section 8 he will not be liable.

The law on this point has been very clearly laid down in the two decisions of this Court in the cases of River Steam Navigation Co. Ltd. v. Syam Sunder Tea Co. Ltd. reported in AIR 1955 Gau 65 and ''River Steam Navigation Co. Ltd. v. Milapchand Hiralal Firm reported in AIR 1958 Gau 115. There can be no dispute so far as the proposition of law is concerned. The only question is whether on the facts of this case it can be said that the damage was the result exclusively of the act of God. Each case will depend upon its own facts and as I have pointed out, there is no evidence on behalf of the Defendants except the oral statement of Benode Behari Bhadra which I have already dealt with.

It is not necessary to deal with the question as what an act of God is. At page 183 of Halsbury''s Laws of England, third edition, volume 8 the law has been summarized as follows:

An act of God in the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or, more accurately, as an accident due to natural causes, directly in exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it. The occurrence not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated. The mere fact that a phenomenon has happened once, when it does not carry with it or import any probability of a recurrence (when in other words, it does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must, however, be something overwhelming and not merely an ordinary accidental circumstance, and it must not arise from the act of man.

In ''Clerk and Lindsell on Torts'', twelfth edition, paragraph 1311 it is stated as follows:

The act of God is a recognized exception to the principle of Rylands v. Fletcher (1868) 3 HL 330. Its meaning is an operation of natural forces "which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility." It is only a defence if it was impossible to provide against the occurrence, and it is not enough to show that it was not reasonably possible to provide against it. A rainfall of extraordinary violence is not an act of God, and neither is a high tide nor an exceptionally strong wind.

In the case of ''Corporation of Greenock v. Caledonian Rly.'' reported in 1917 AC 556 at p. 570 the following passage may be quoted:

What shall be considered a damnum fatale in such a case I need not inquire, but of this I am very clear, that a great fall of rain and consequent accumulation and weight of water is not a damnum fatale which exempts the proprietor from liability for the failure of his operation for it is against such accumulation and weight of water that he is bound to provide.

It is admitted by the witness for the Defendants that the godown is situated on an open sandy land at the bank of the river Brahmaputra and from its very situation it is liable to be affected by the storm. It is also in the evidence that on the 10th March 1956 there was a severe storm and thus it cannot be said that this area is not often subjected to heavy storm and cyclone. The nature of the goods was also such that if there was a slight rainfall, the goods were likely to be damaged. In these circumstances it was incumbent on the carriers to take more care to protect the goods from being damaged. Merely try putting up a temporary godown with a corrugated iron sheet roof without any strong wall to support it and on earthen ground, the carriers had not discharged their obligation, and it cannot be said that in these circumstances when the damage was caused to the goods, the damage was the result of the act of God and not the result of the omission to take proper care on the part of the carriers.

If the contention of the Defendants is accepted, then the only thing which the Defendants have to establish is that on a particular day when the damage is said to have been caused to the goods, a storm which necessarily is an act of God did take place. No attempt has been made, as I have already pointed out, to show at what hour the rainfall started, whether at the very first instance the rain went inside the godown which damaged the goods or it was in the middle of the period of the storm that damage was caused to the goods, though that also by itself may not be a ground for holding that the damage was the result of it the act of God. On consideration of the evidence we are of opinion that the Defendants have failed to prove that the damage was the result of the act of God and thus the plaintiff in our opinion was entitled to get damages in respect of the consignment booked under invoice No. 10691, Steamer Receipt No. 83 dated the 12th March 1956.

The Respondent then contended that the plaintiff has failed to prove the quantum of damages. It may be that the plaintiff has sold the goods in the market and got a price which is more than what he actually paid for the goods. No such case was taken by the Defendants in the written statement. The ground taken by the Defendants in the written statement was that the plaintiff was not entitled to get any damages. Assessment of damages was made at the rate of fifty per cent when the assessment delivery was taken. It is true that that by itself will not give a cause of action to the plaintiff to bring a suit. Rut in the circumstances the fact that the loss was assessed to be at fifty per cent, coupled with the fact that the quantum of loss was never challenged by the Defendants, we do not think that it is a case where we would like to send back the ease for an inquiry on the question of the amount of damages. We accordingly allow the appeal in part and decree the suit of the plaintiff for recovery of Rs. 5,750 with the usual Merest from the date of the suit till the date recovery against the Defendants. The suit for the rest of the amount stands dismissed. The parties will receive and pay cost in proportion to their success and failure throughout.