P.A. Rahim Sahib vs The Governor General of India in Council, by Agent and General Manager of the Southern Railways, Tiruchirapalli

Krishnaswami Nayudu, J.—This appeal arises out of a suit instituted by the appellant against the Governor General in Council by Agent and General Manager of the South Indian Railway at Trichincpoly for recovery of Rs. 1080. A consignment of 103 bundles of tobacco dust was sent to the plaintiff appellant to the Tiruppur railway station from Sheebal station on the M. and S. M. Railway as per invoice dated 10th August, 1944. The goods were received at the Tiruppur railway station on the 18th August, 1944 and on unloading the plaintiff found that some of the bundles completely wet and the packing of other bundles torn and loose. He wrote to the Commercial Superintendent on 20th August, 1944 Ex. A-2 complaining about the damage and claiming a sum of Rs. 3,000. The claims inspector examined the damaged goods and issued a certificate dated 9th September, 1944 assessing the value of the damage at 75 per cent of Rs. 1060, Damages were claimed on this basis by Ex. A-3 dated 9th January, 1945. The railway administration repudiated the claim by their reply dated 22nd January, 1945, Ex. A-4. The plaintiff caused an Advocate''s notice to be sent (Ex. A-5) on 6th February, 1945, to which under Ex. A-6 dated 16th February, 1945 the railway administration informed the plaintiff''s Advocate that the matter was under enquiry and that they would send a definite reply shortly, and if in the meanwhile the plaintiff chose to take the matter to Court, it would be at his risk. The final reply (Ex. A-8) was sent by the Commercial Superintendent on 4th July, 1945 stating that they maintained the repudiation for reasons already stated in their letter dated 22nd January, 1945, (Ex. A.4). The suit was instituted on 4th July, 1946. A defence of limitation was taken that the suit was barred, as it was instituted beyond one year after the occurring of the loss or injury. Applying Art. 30 of the Indian Limitation Act, both the Courts upheld the plea of limitation and dismissed the suit.

Article 30 of. the Limitation Act provides the period of limitation for suits against a carrier for compensation for loss or injury to goods and the period is one, year, from the time the loss or injury occurs. Art 31 prescribes the period of limitation in respect of a suit against a carrier for compensation for non-delivery of, or delay in delivering goods, and the period is one year to be computed from the time when the goods ought to be delivered.

The contention on behalf of the appellant is that the defendant in this case, who was the Governor General in Council could not come within the meaning of "carrier". In Wharton''s Law Lexicon the meaning or "carrier" is given as a person who undertakes to transport the goods of other person from one place to another for hire. It is contended that the Government of India is not a person or an incorporated company or an individual or a sole corporation and that, prior to the Government of India Act of 1935, the Secretary of State for India in Council was a body corporate and after the Act the Secretary of State for India in Council ceased to function and all the properties of the Secretary of State for India vested in the Government of India, which was not a corporation.

Reliance is placed on the decision in Golab Rai Paliram v. Secretary of State for India in Council (1941) 2 Cal. 160, where, relying on the definition of "common carrier" in S. 2 of the Carriers Act (III of 1865), Lort Williams J. held that the Government, though engaged in the business of transporting property for hire, could not come within the term "carrier" that Art. 30 would have no application and the appropriate Article would be) 115 of the Limitation Act. The learned Judge refers to the definition of common carrier in Macnamara on Carrier by Land, 2nd Edn. at page 11, which is as follows :

A common carrier is a person who undertakes for hire to transport from a place within the realm. to a place within or without the realm the goods or money of all such; persons as think fit to employ him. To render a person liable as a common carrier he must exercise the business of carrying as a public employment, and must undertake to carry goods for all persons indiscriminately and hold himself out, either expressly or by course of conduct as ready to engage in the transportation of goods for hire as a business, not merely as a casual occupation pro hac vice.

It is observed that a private carrier is defined to be a person whose trade is not that of conveying goods from one person or place to another, but who undertakes upon occasion to carry the goods of another and receive a reward for so doing, and one who is not a common carrier and relying on Watkins v. Cottell (1916) 1 K.B. 10, 15, it is also stated that there is no other class of carriers besides common carriers and private carriers.

Section 2 of the Carriers Act, 1865, defines a "common carrier" as a person other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation for all persons indiscriminately. "Person" includes any association or body of persons, whether incorporated or not.

The above decision of Lort Williams, J. was reversed in appeal by a Bench of the Calcutta High Court consisting of Coatello and Mac Nair, JJ. in Secretary of State for India in Council v. Golab Rai Paliram (1937) 2 Cal. 614 where the learned judges held that taking a broad definition of "carrier railways, whether controlled by the State or not, can quite accurately be described as carriers, even though for the purpose of the Carriers Act they are not common carriers, that the word carrier in Art. 30 of Sch. 1 to the Limitation Act is of a wider meaning than the expression "common carrier" and it is wide enough to cover the case of a railway owned or controlled by Government, which undertakes to carry goods belonging to the public from one place to another and that Art. 30, therefore, applies to State owned railways, for it would not be right to interpolate into Art. 30 the qualifying restriction implied by the word "common" as applied to carriers. Coatello, J., observed at pages 620-621 as follows :

Mr. Majumdar agrees, railways-whether they are owned and controlled by the Government or whether they are not, that is to say, whether they are State railways or non-state railways-are all in the same position, as regards their responsibility as carriers of goods... It seems to me that it would be a misuse of language to say that railways which carry goods for reward are not carriers; even though it is quite accurate to say that for the purposes of the Carriers Act of 1865 and any amendment of that Act, they are not common carriers.

In Footwear v. N.N. Railway AIR 1988 All. 348, it was held that Art. 31 applies to a State railway and though the Government is excluded from the definition of common carrier for the purpose of the Carriers Act of 1865, as Art. 31 of the Limitation Act does not contain the expression "common carrier" it only applies to a carrier and is therefore presumably of a wider meaning.

Radha Syam Basack v. Secretary of State for India 44 Cal. 16, was a case in which the Secretary of State for India was sued and Art. 31 of the Limitation Act was held to be applicable to a suit against a carrier. The question as to whether the Government could be a carrier so as to attract the application of Art. 31, was, however, not raised or considered.

The definition of a "common carrier" in the Carriers Act of 1665 as denoting a person and that "person" includes any association or body of persons, whether incorporated or not, and a similar meaning given to the word "carrier" in Wharton''s Law Lexicon are relied on for the contention that the Government is not a person or an association or body of persons whether incorporated or not, that it is a sovereign body and there fore could not be termed as "carrier", that the Government of India now being a sovereign body has ceased to be a corporation, though prior to the Government of India Act it could be said that the Secretary of State for India was by statute a body corporate, that the decisions relied on were all in respect of transactions prior to the coming into force of the Government of India Act and that therefore they could not be relied upon as precedents.

Carrier as such is not defined either in the Carriers Act, or in the Indian Railways Act, or in the Indian Limitation Act or in any other enactment. The word must therefore be given its ordinary and etymological meaning. The word is derived from the word "carry". Whoever carries is a carrier. But carrier has no doubt in addition acquired a special meaning, since it is not every one that carries goods could be said to be a carrier but whoever is employed in the business of undertaking for hire the transport from one place to another goods or money or such persons as may employ them, and if such carrying of goods is for all persons indiscriminately that would amount to carrying on business as a public employment, not only as a casual occupation, and that would make him a common carrier, as distinguished from a private carrier, whose trade is not that of conveying goods from one person or place to another, but who undertakes upon occasions to carry goods of another for hire. But the Government by assuming control over the railways, have undertaken the business of carrying goods of all persons holding themselves out as ready to engage in the transportation of goods for fire as a business, and it is very difficult to say that the Government are not doing the business of carriers. The Government therefore, by reason of engaging themselves in the business of carrying goods, become carriers. The definition of a common carrier in the Carriers Act III of 1865 would bring the Government after having assumed charge of the railway administration within the meaning of the word "common carrier" but the Government is specifically exempted under the definition. The fact that "common carrier" in the Act is said to denote a person including any association or body of persons, whether incorporated or not, would not exclude any other entity taking up the business of transporting goods from one place to another and doing the business of such carriage of goods, as in the present case by the Government, which is not a person, but a sovereign body or body politic by coming within the meaning of the term "carrier." The argument of Mr, S. Ramachandra Aiyar proceeds on the basis as if the word ''''carrier" has been defined in any Indian enactment, which definition would exclude the Government from coming within its scope. The definition of a common carrier in the Carriers Act of 1865 cannot be applied in construing the meaning of the word "carrier" in the Indian Limitation Act. In the absence of a definition of the word ''''carrier," it has to be given the popular meaning and at it is commonly understood, that is in the sense in which people conversant with the word would understand it. If any one does the business of carrying goods as a public employment, he would be a carrier and the fact that the Government is doing the business would not make any difference So long as there is no prohibition against the Government doing the business of a carrier, there is nothing to show that the word "carrier'''' will not include within it one who is doing the business of carrying goods. The word "person" is defined in the General Clauses Act as "including" any company or association or body of individuals, whether incorporated or not. "But the word could also be taken to include a body politic is evident from the definition of "person" in the Fatal Accidents Act. There is therefore no particular significance in either the General Clauses Act or in the Common Carriers Act not bringing the Government within the meaning of the term "person". The word "carrier" in Arts. 30 and 31 of the Indian Limitation Act should therefore be given its ordinary derivative meaning and a wider one than the definition of a Common Carrier in the Common Carriers Act.

It was urged that Art. 31 alone would apply and not Art. 30 as the claim is in respect of non-delivery and, as there was a shortage in the bags, to that extent the goods could not be said to have been delivered. But, on the other hand, the entire correspondence shows that the claim was made only for damage to the goods and consequent loss and not for non delivery and Art. 30 alone would therefore apply. Further the starting point for limitation is urged to be the letter dated 4th July 1945 (Ex. A. 8) as it contained the final repudiation of liability and therefore time must be counted from that date. The liability was repudiated as early as on 22nd January 1945 under Ex. A. 4 and the fact that in Ex. A. 6 the railway administration stated that the matter was under enquiry in reply to the Advocate''s notice would not take away the effect of repudiation in Ex. A. 4. Ex. A. 8, which is relied upon as the repudiation of liability, only confirms the repudiation already made by their letter dated 22nd January 1945. The view taken by both the Courts that Art. 30 is applicable and the plaintiff''s suit is barred by limitation is therefore correct. The second appeal fails and is dismissed with costs. No leave.