P.K. Kalasami Nadar vs ALwar Chettiar and Others

Ramachandra Iyer, J.

(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.

The appellant and his driver who were impleaded as parties to the suit denied that there was any gross negligence on their part; they further stated

that they had taken all reasonable care to ensure the safe transmission of the consignment, and that under the circumstances no liability would

attach to them. The jurisdiction of the Sub-Court at Coimbatore to entertain the claim was denied, as according to the appellant the action was

based on a tort and could be laid only in the court having jurisdiction over the place, where the loss occurred. The learned Subordinate Judge

upheld the contention of the appellant in part, namely, that the lorry was properly equipped and well protected, and that the fire was not due to any

defect, therein and that it was not attributable to any negligence on the part of the driver. But he held that independent of the liability as bailee there

was a special liability of the appellant as a common carrier for not having safely delivered the goods. Rejecting the plea as to the want of

jurisdiction on the ground that a part of the cause of action arose at Coimbatore, he assessed the damages for the loss of goods in a sum of Rs.

6730-13-6 and passed a decree for that amount against appellant in favour of the first respondent. The claim against the driver was dismissed.

(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''s 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 jurisidiction to

entertain the suit.

(3) The first contention can be shortly disposed of. It is not disputed that the appellant is a common carrier. A common carrier is one who under

takes for reward to carry for hire from one place to another goods of those persons who choose to employ him. Section 2 of the Carriers Act,

1865, defined him 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."" The duty of a common carrier is to receive for carriage all goods offered, provided they are of

the proper kind and properly packed, and he has the convenience to carry them. The employer would be bound to pay hire as stipulated. The

common carrier employed would be bound to provide safely of the goods during carriage till delivery, unless prevented by an act of God, enemies

of the State or unless the loss of or damage to goods arises from an inherent defect in the goods or by reason of their packing. In Halsbury''s Laws

of England, Vol. 4 (Simonds Edn.) at page 141, the liability for loss for damage of goods entrusted to a common carrier is stated thus :-

A common carrier is responsible for the safety of the goods entrusted to him in all events, except when loss or injury arises solely form act of God

or the Queen''s enemies or from the fault of the consignor, or inherent vice in the goods themselves. He is therefore liable even when he is

overwhelmed and robbed by an irresistible number of persons. He is an insurer of the safety of the goods against everything extraneous which may

cause loss or injury except the act of God or the Queen''s enemies and, if there has been an unjustifiable deviation or negligence, or other

fundamental breach of contract on his part, he will liable for loss or injury due to the Queen''s enemies, or, it would seem, due to act of God. The

responsibility as an insurer is imposed upon a common carrier by the custom of the realm, and it is not necessary to prove a contract between him

and the owner of the goods in order to establish liability. Failure on the part of the carrier to deliver the goods safely is a breach of a duty placed

upon him by the common law; and therefore, an action of tort lies against him for such breach, the owner not being bound to prove any contract.

Where, however, there is a contract, liability may arise either at common law or under the contract and the contract may limit the carrier''s

responsibility.

Thus, a common carrier, to whom goods are entrusted for transport, should provide a resonably fit and proper vehicle for carriage of the goods

entrusted, carry them safely, load and unload them properly and deliver the same at destination. A common carrier being thus under an obligation

to deliver the goods safely, would be liable to what happens to them during the time when he is in custody. His liability therefore is said to be that

of an insurer. Under the common law of England, there were two categories of bailees on whom the law imposed a greater responsibility, viz.,

common carriers and innkeepers. These were held liable for the safety of the goods entrusted to them in all events, except where the loss or injury

to them was occasioned by an act of God, King''s enemies or from the fault of the consignor or due to the inherent defect in the goods (vide Indian

Airlines Corporation Vs. Jothaji Maniram, . An act of God will be an extraordinary occurrence due to natural causes, which is not the result of any

human intervention which could not be avoided by any amount of foresight and care e. G., afire caused by lightning. But an accidental fire as in the

present case though it might not have resulted from any act of or omission of the appellant, could not be said to be an act of God.

(4) 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.

(5) It is next contended that, the suit being one for damages for injury to the goods by reason of a breach of duty of the carrier, it should be held to

be an action in tort and should have to be instituted in a Court having jurisdiction over the place where the accident or loss occurred. Section 19,

Civil P. C. States that a suit for compensation for wrong done to moveable property can be instituted in a Court within the local limits of whose

jurisdiction the wrong was committed, or where the defendant resides. Section 20, Civil P. C.prescribes the forum for other suits. Clause (c) to

that section provides that the suit could be instituted in a Court, within that local limits of whose jurisdiction the cause of action wholly or partly

arises. In the case of a claim for damages for a tort, the commission of the tortious act will undoubtedly form a part of cause of action; the damage

suffered will also be apart of it. It is not disputed before us that neither the place where the alleged breach of duty took place nor the one where the

loss occurred was within the jurisdiction of the Coimbatore Court, it being not contended that the place of delivery was the one where the loss

occurred. It is equally not disputed, that if the suit is construed as one based on a contract, the Coimbatore Court will have jurisdiction, as

admittedly a part of cause of action arose at that place. Under the circumstances it becomes necessary to consider to which category, the claim in

the present case belongs.

(6) The suit is one by a consignor of goods for non-delivery thereof at the destination. Paragraph 4 of the plaint states that the defendants failed to

deliver to the first plaintiff at Coimbatore the consignment ""as agreed"". Paragraph 6 alleges that the defendants failed to deliver the consignment

safely at the destination as they were bound to do as a common carrier. It is next stated that the loss was the result of gross negligence on the part

of the defendants. This is obviously on the basis that the defendants have not bestowed that amount of care which as bailee they were bound to do.

Thus, though there is a claim on the basis of he common law liability of a carrier, substantially the cause of action alleged is on a breach of contract

to deliver the goods and to take that amount of care which is required of a bailee under Secs. 151 and 152 of the Contract Act. It was however

contended for the appellant that the relevant paragraphs in the plaint proceed not on the basis of any express or implied contract to deliver the

goods safely at destination but on the common law liability of the carrier for breach of duty to ensure a safe carriage of goods, and that the claim in

such a case can only be in tort and never in contract.

Even assuming that the plaint in the instant case should be construed only as alleging a breach of duty on the part of the appellant, the claim for

damages cannot for that reason be said to be unrelated to a case of breach of a contractual obligation. The claim is made by the consignor himself

who entered into a contract with the appellant for the carriage of the goods form Koilpatti to Coimbatore which having regard to the nature of the

business of the appellant implied a safe carriage of the goods. A breach of that obligation would be a breach of contract. It may be, that by virtue

of the public employment of the appellant and the nature of his obligation, he would be liable in tort. That would only mean that so far as the

consignor is concerned, he can at his option sue on contract or on tort. But where the claim is made by the consignee, the position might be

different as he not being a party to the contract of carriage made by the consignor, will not be able to enforce a contractual obligation but can only

sue on tort.

(7) In Clerk and Lindsell on Torts, 11th Edn. The distinction between a remedy on the basis of a contract and that on tort is thus stated at page 5:-

Professor Windield draws distinction as follows:--

At the present day, tort and contract are distinguish able from one another in that the duties in the former are primarily fixed by law, while in the

latter they are fixed by the parties themselves. Moreover, in tort the duty is towards persons generally; in contract it is towards a specific person or

specific persons.'' In a case under the Country Courts Act, 1919, where an action for failure of duty by a stock broker to client was held to lie in

contract, Greer, L. J., said: ''The distinction in the modern view for this purpose between contract and tort may be put thus : ''Where the breach of

duty alleged arises out of a liability independently of the personal obligation undertaken by contract, it is tort, and it may be a tort, even though

there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where

that which is complained of is a breach of duty arising out of the obligation undertaken by the contract.

The same subject is dealt with in Halsbury''s Laws of England, Vol. I (Simonds Edn.) at page 36 thus :

In deciding whether an action is founded on contract or on tort, the substance of the action must be looked at and the form of it as stated in the

pleadings is immaterial. Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract

the action may be said to be founded on tort, and it may still be founded on tort even though there may happen to be a contract between the

parties, if the duty in fact arises independently of that contract; an action may be said to be founded on contract where that which is complained of

is a breach of duty arising out of the obligations undertaken by the contract.

Where there is a contractual obligation to deliver the goods at a particular place, an undertaking can be implied having regard to the context in

which the contract is made, namely, with a common carrier who has such an obligation, viz.to deliver the goods safely at the destination. In that

case there would be a personal obligation. An independent obligation would also exist by reason of the duty which the carrier owes by reason of

his calling. The mere existence of an independent ground of liability on tort cannot take away the right of the party to the contract to sue for breach.

But such a person will not be bound to sue on the contract; he may rest his claim on the alternative basis of tort. This option exists only to a party

to the contract. Where however the action is laid against the carrier by the consignee for example who is not a party to the contract, the liability

sought to be enforced would be independent of the contract, though proof of the contract might be necessary to show that the defendant was

acting as a carrier and as such liable as an insurer. In such a case the liability for the breach of duty to deliver the goods safely would be

independent of the terms of the contract entered into between the consignor and the common carrier/

(8) Mr. Ramamurthi however contends that no claim on the basis of contract can lie when a common carrier is sought to be proceeded against for

breach of his duty to deliver safely the goods entrusted to him for carriage whether the action is laid at the instance of the party to the contract or

others, and that in all cases the liability will only be on the basis of a civil wrong committed by the carrier. Learned counsel relied in this connection

on London and North Western Rly. Co. V. Richard Hudson and Sons Ltd., 1920 AC 324 where Lord Dunedin, dealing with the liability of

common carrier carrying goods, observed at page 333:

That a common carrier is an insurer of goods entrusted to him for carriage, and can only excuse himself on the ground of act of God, or of

inherent vice (in which expression I include bad packing) of the goods themselves is axiomatic. Now Lord Mansfield in Forward v. Pittard, (1785)

1 TR 27, speaks of this obligation on the carrier''s part as an obligation independent of the contract. By that, I understand that it is not an adjected

term to the contract as made, but is an obligation which attaches from the fact of the goods being carried by a common carrier, in favour of the

owner of the goods whoever he may be.......... The same view, that the obligation is independent of the contract, is corollary to the decisions which

in view of the provisions of the Country Court Act settled that an action for damages at the instance of the owner of the goods against the carrier

could be held as an action of tort and not of contract.

The action in that case was brought at the instance of the consignee of the goods, between whom and the carrier there was no privity of contract; it

was held that the former could sustain a claim for loss of goods during transit on the basis of a tort. That decision itself recognises that there could

be a liability of the carrier for breach of contract in appropriate cases. The decision in Shiam Narain Tickoo v. Bombay Baroda and Central India

Rly., ILR 41 All 488 was next relied on. That was an action against a railway company for the damages laid by the husband for the death of his

wife on account of injuries sustained by her in an accident to the train wherein she traveled. The learned Judges did not decide the question

whether an action for breach of contract would lie where the railway did not carry the passenger safely. Their view was that an action on contract

would not lie at he instance of the plaintiff in that case who was not a party to the contract and whose claim was based on tort and under the

provisions of the Fatal Accidents Act.

In K.C. Dhar Vs. Ahmad Bux, , which was next referred to, it is was held that a person, who had suffered loss by a common carrier''s breach of

his obligation, could maintain a suit independent of the contract. In the course of the judgment, Rankin C. J.observed that the liability of a common

carrier was not under any contract of insurance; but he was only liable as an insurer. There observations were made to show that a common

carrier''s liability existed irrespective of any privity of contract between himself and the plaintiff. We cannot agree with the contention put forward

before us that the decision is an authority for the proposition that in no circumstance would a common carrier be liable for non-delivery of goods

on the basis of a breach of contract. In London and North Western Railway Co. V. Richard and Sons Ltd. 1920 AC 324, Lord Atkinson

speaking of the liability of the railway company in that case observed that it should be held to have contracted with the consignee to perform with

due care, either by their own servants or their agents, all the terminal and other services necessary to carry the respondents'' goods.

The case in Pontifex v. Midland Ry. Co., (1877) 3 QBD 23, to which, reference was made was not really one based on any contract. There a

common carrier who was entrusted with goods for transport ignored the instructions of the consignor to stop the goods in transit, but contrary

thereto delivered them over to the consignee. The consignor brought an action for damages sustained by the wrongful act of the carrier in delivering

the goods. The claim was held to be one in tort and not on contract for the obvious reason that the contract had been put an end by the notice to

stop in transit and that the failure of the carrier to conform to the instructions of the consignor to stop delivery was one in breach of his duty and,

therefore, in tort. That the claim laid in that case could not be on the basis of a breach of contract is explained in Fleming v. Manchester and

Sheffield Rly. Co., (1878) 4 QBD 81. In the latter case, the palintiffs delivered over to a common carrier a parcel of goods for carriage form one

place to another. The carrier did not safely and securely deliver the goods, but was so careless that the goods were lost. The action was held to be

founded on a breach of contract. Bramwell L. J.held that the allegation in the plaint in effect amounted to saying that ""in consideration of payment

of hire, the defendant promised to carry safely the plaintifs'' goods."" That a remedy for the same wrong can lie on contract or in tort and the

existence of one remedy cannot preclude an alternative one is brought out form the following passage in Salmond''s Law of Torts, 11th Edn. Page

10.

It is often the case, however, that the same wrong is both a breach of contract and a tort. There are many instances in which a person voluntarily

binds himself by a contract to perform some duty which already lies upon him independently on any contract. The breach of such a contract is also

a tort, inasmuch as liability would equally have existed in such a case had there been no contract at all; for example, when a passenger whilst

travelling with a ticket is injured owing to the railway company''s negligence, the company is guilty of a wrong which is both a breach of contract

and a tort. Similarly, a bailee who wrongfully refuses to restore the property lent to him is liable both is contract and in tort; in contract because no

one has a right to detain another''s property without some justification. Such concurrent liability in tort and contract is found in the case of bailees,

carriers and probably other persons recognised at common law as exercising a common calling and there owing duties to the public such as smiths

and innkeepers. It seems that a doctor or surgeon is in this position, but not an architect, or stock broker, or solicitor, or a window cleaner. In

other cases it depends on the existence of a duty in tort independent of the contract.

In ILR 18 Cal 620, the common law obligation of a common carrier to convey the goods safely was held to be an incident to the contract. It so

much is settled, cannot a contract be implied under the law when the carrier to whom goods are entrusted on payment of charges should be held to

have agreed that he would carry them safely? In Morgan v. Ravey, (1861) 6 H &N 265, Pollock C. B. Observed at page 276 :

We think the cases have established that where a relation exists between two parties, which involves the performance of certain duties by one of

them and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do what is to be done by

him. We cannot distinguish this case form the case of a carrier.

In India General Navigation and Ry. Co. Ltd. V. Dekhari Tea Co. Ltd., ILR 51 Cal 304 : AIR 1924 PC 40 the Privy Council, adverting to the

fact that the obligation of a common carrier, to carry goods safely arose by reason of public employment in which he was engaged, observed at p.

311 (of ILR Cal) : (at p. 42 of AIR) :

Apart form danger arising, say, form the nature of goods received, the carrier is by his office bound to transport the goods as clearly as if there

had been a ''special contract'' which purported so to bind him, and he is answerable to the owner for sale and sound delivery.'' (Italics (here in.'')

ours).

It is therefore clear that the liability of a common carrier for non-delivery of goods so far as a party to the contract is concerned, can at his option

be rested on contract or not. Whether in such a case the claim in made on one basis or other would depend on the construction of the plaint--the

substance of it being the decisive factor. In the present case the plaint is clear; reference is made to the contract of carriage of goods not merely as

a matter of history but as the starting point of the appellant''s obligations. It is stated that by the terms of his employment, the appellant was legally

bound to deliver safely the goods. The claim made for breach of that obligation is one on the basis of the contract and not on the basis of a tort.

Thus there being a contractual obligation to deliver the goods at Coimbatore, a part of the cause of action for the suit arose at that place. The

lower court had therefore the jurisdiction to entertain the suit.

(9) The appeal, therefore, fails, and is dismissed with costs.

(10) Appeal dismissed