Revathi C.P. Equipment Ltd. and Another vs Patel Roadways Pvt. Ltd. and Others

Sathiadev, J.—Plaintiffs in O.S. No. 394 of 1983, on the file of the Sub Court, Coimbatore, are the petitioners herein. The three defendants

are respondents herein.

Plaintiffs filed the suit claiming a sum of Rs. 73,934, with further interest at 15 per cent from date of suit till date of realisation. In the plaint, it is

stated as follows ;The first''plaintiff purchased two numbers of Cummins Diesel Engines from Kirloskar Cummins Ltd., Poona, under Invoice No.

KA 3712 dated 11-9- 1980. The company entrusted the two engines to the second defendant for transfer from Bombay to Coimbatore to the first

plaintiff under Goods consignment Note No. 868608 dated 12-9-1980. A policy of insurance was taken by the first plaintiff to cover the transit

risk. By letter dated 8-10 1980, second defendant informed first plaintiff that the consignment was involved in an accident in route. A certificate of

damage was issued on 10-10 1980 by first defendant. The survey report was produced to assess the damage caused. Defendants being common

carriers and they having been negligent and being in the position of an Insurer, they are liable to satisfy the claim of the plaintiffs as quantified in the

plaint.

First defendant in the written statement stated that the goods were accepted for carriage, subject to jurisdiction of Bombay Courts only and

having been so stipulated under the terms and conditions in the consignment note and therefore it had resulted in a concluded contract ''deemed'' to

have been executed by the parties and binding on them. Even though defendants are not liable, they had offered to settle the claim by offering to

pay some amount as a concession under special circumstances; and that the terms and conditions in the Forward Note and Goods Consignment

Note are binding between the parties. These defendants are not common carriers and they are only fleet owners-cum-contractors and therefore

they are not liable to the suit claim. On the point of jurisdiction, it was taken up as a preliminary issue and the trial Court held that it had no

jurisdiction to try the suit and relied on the decisions in Globe Transport Corporation Vs. Triveni Engineering Works and Another, and Hakam

Sing Vs. Gammon (India) Ltd., .

Mr. Nageswaran, learned Counsel for plaintiffs, submits that, the crux of the matter lies in the proper comprehension of the contents and the

nature of the claim put forth in the plaint, and that the suit having been laid against three defendants, who act as common carriers, it is common law

remedy which has been invoked and that the suit was not based on any breach of contract based on the consignment note. Mr. Jose Ukkur,

learned Counsel for the defendants, would state that, in paragraph-12 of the written statement, they have categorically stated that they are not

common carriers and being fleet owners and contractors, the Carriers Act could not be applied to them.

Learned Counsel for plaintiffs refers to Shukul Bros. v. H.K. Kavarna AIR 1958 Cal. 730 wherein a Division Bench in dealing with Carriers

Act, stated that the duties and obligations of a common carrier are governed by the English Common Law as modified by the provisions of the

Indian Contract Act. The Bench stated that by the Common Law, a Common-carrier is bound to deliver the goods within a reasonable time and

insure their safety during their carriage and until delivery; act of God and the King''s enemies only excepted. It is further stated therein that the

obligation is not founded upon contract, but on the exercise of public employment for reward. . The duty arises irrespective of the contract. The

owner of the goods may sue the Common carrier for breach of the Common Law duty in an action for tort. In para 9-B of the judgment, the

Bench states:""Where there is a contract between the owner and the carrier, the owner may sue the carrier either on contract or in tort at his

option.

Learned Counsel then relies upon Section 8 of the Indian Carriers Act and claims that, when relief is sought there under, the restrictive clause

relied upon in the consignment note relating to jurisdiction of courts, would have no application. In this regard, reliance is placed on Irrawaddy

Flotilla Co. v. Bugwandas, 18 Cal. 620, but there is no need to refer to the said decision in detail, since it takes the same view as stated above.

A Division Bench of the Rajasthan High Court in Vidya Ratan v. Kota Transport Co. AIR 1956 Raj. 200, held that, when a suit is filed against

a common carrier for loss of goods, there need not be a privity of contract, between the owner of goods and the carrier, and it would suffice if the

carrier had accepted the goods for transmission has failed to deliver them to the consignee. It is for the carrier to show that there was a special

contract, which would absolve it from such a liability. The consignment note was between the consignor and the carrier. It is, therefore, rightly

pleaded that the plaintiffs could file the suit based on Carriers Act, and rely upon the consignment note only as a piece of evidence to identify

plaintiff as the party which is entitled to receive the goods and no other.

Now to find out whether the suit has been laid by. invoking the common law liability under the Carriers Act, or based upon breach of the

contract of the consignment note; a reading of the plaint shows that in paragraph 9 it is stated that the defendants are common carriers, and,

therefore, both in law and on facts they are bound to take proper care of the goods entrusted to them and deliver the consignment in good

condition to the consignor. It is then stated-

In the instant case, the defendants have failed to carry out the duties and obligations cast on them in law and caused damages to the consignment

resulting in heavy loss to the plaintiffs ... Being common carrier their, position is that of insurer and therefore they are liable to satisfy the claim of the

plaintiffs.

Therefore, when a suit is laid by electing the remedy under the Carriers. Act and not as a claim for damages for breach of the contract, viz., of

terms and conditions of the consignment note; none of the other decisions like Singhal Transport v. Jesaram AIR 1968 Rajasthan 89. Patel Bros.

v. Vadilal Kashidas Ltd. 1959 I MLJ 106 and Savani Transport v. C. Mudaliar & Co. AIR 1979 Mad. 21, requires to be considered as they deal

with the point as to whether a party to the contract would be bound to sue only in the court agreed to between the parties and in which a part of

the cause of action has arisen and in no other. The Court below has relied upon the decision of the Supreme Court touching upon this aspect. All

these decisions would have relevance, if the suit had been filed, claiming damages for breach of the contract of the terms and conditions of the

consignment note. A plaintiff in claiming a particular relief, may have more than one basis which could be adopted by him, and if he elects to file a

suit on any one of the basis available to him in law; then he would be bound by the same and any objection put forth to such a claim would have to

be with reference to what be had elected and not otherwise.

The above aspect not having been gone into by the trial court, it is held that the suit was laid claiming relief under the Carriers Act, and that the

term relating to jurisdiction found in the consignment note would have no relevance, and it could be relied upon by the plaintiffs only to prove their

identity to get the goods and no other. Hence, when a specific part of the cause of action had arisen within the jurisdiction of the court at

Combater, the suit as laid is maintainable and therefore, the trial court is now directed to take up the suit and dispose it of in accordance with law.

This revision petition is allowed with costs, Counsel''s fee Rs. 250/-.