JUDGMENT
M. Thanikachalam, J.
1. This judgment shall dispose of the above two appeals.
2. The defendant in O.S.No.52/1987 and O.S.No.263/87, on the file of the Sub Court, Cuddalore, having suffered two decrees, for payment of amounts, has preferred these two appeals, separately.
In this Judgment, the parties are referred as arrayed in the original suits.
A.S. No. 47 of 1990
3. The facts leading to the case, necessary for the disposal of the appeal.
(a) The respondents in this appeal as plaintiffs had filed the suit (O.S.No.263/87), for recovery of a sum of Rs.48,162.67 with interest thereon at 9% per annum, from the defendant/appellant from the date of plaint till the payment.
(b) According to the plaintiffs, the first plaintiff who had sold 54 numbers of 132 KV Polycone Insulators to the Uttar Pradesh State Electricity Board, for a sum of Rs.1,66,599.07, consigned the goods in a securely packed wooden crates through the defendant Roadways at Vadalur on 26.11.1984, for safe carriage and delivery to the consignee at Chandausi, Moradabad District. The consignment was insured by the first plaintiff with the second plaintiff. The defendant-carrier after an unduly long and unexplained delay of nearly seven months effected open delivery of the consignment to the consignee on 1.7.1985 in a damaged condition. Out of 54 numbers of Polycone Insulators, 16 nos. were delivered in broken condition, for which a notice was issued, claiming compensation for the damages under Section 10 of the Carriers Act, 1865.
(c) The defendant carrier admitting and acknowledging the damages caused to 16 numbers of Insulators, issued certificate also on 20.7.1985. The defendant being a common carrier is liable, in law, to make good the loss to the plaintiff, since their liability being absolute and unconditional under the Carriers Act (hereinafter called ‘the Act’).
(d) The first plaintiff on the basis of the contract of insurance, received the amount from the insurance company and the second plaintiff is entitled to proceed against the defendant carrier, for compensation, as per the assignment and subrogation. The defendant having failed to deliver the goods entrusted to them in a good condition, committing misfeasance and malfeasance, caused pecuniary loss to the first plaintiff, which the defendant is liable to discharge the same, under the statutory obligation. Despite lodging claim, issue of notice, the defendant failed, resulting the suit.
(e) The appellant/defendant in its written statement, accepting the entrustment of the goods, as pleaded in the plaint, had contended, that the Court at Cuddalore had no jurisdiction, whereas the Bombay Court alone will have jurisdiction, that the defendant company is not a common carrier, which is not obliged to carry for each and every person indiscriminately, that the goods sustained damage only because of the inherent defect in the goods, which are said to be highly fragile, improper packing, not providing sufficient insulation, and not due to any careless act of the defendant, that the goods were carried at owners risk and that the claim in any event is highly excessive.
(f) On the basis of the above pleadings, framing three issues, the parties went on trial. One Sundaramurthy working in the first plaintiff’s company had been examined as P.W.1 on behalf of the plaintiffs and aid was sought from 8 documents exhibited as Exs.A1 to A8. The Branch Manager of the defendant Roadways had been examined as D.W.1 and goods forwarding notes of the defendant Roadways is exhibited as Ex.B.1.
(g) The learned trial Judge, considering the rival contentions of the parties, came to the conclusion, that the Court at Cuddalore had jurisdiction to entertain the suit, that the defendant Roadways is a common carrier, liable to answer the claim of the plaintiffs, in view of the admitted damages caused to the goods entrusted to the defendant, that the first plaintiff had received only a sum of Rs.32,736.83 from the second plaintiff under the contractual obligation, which had arisen under the insurance policy and this amount should be subrogated. In this view of the matter, the trial Court had granted a decree with proportionate cost, directing the defendant/appellant to pay a sum of Rs.32,736.83, with subsequent interest thereon, which is under challenge in this appeal.
A.S. No. 117/90
4. The facts in brief, leading to the case:
(a) The respondents in this appeal as plaintiffs had filed the suit, for recovery of a sum of Rs.95,619.60 with subsequent interest from the defendant/appellant. It is the case of the first plaintiff, that they have entrusted a consignment, consisting of 58 Nos. of 220-245 KV Polycone Insulators to the defendant carrier at Vadalur to be delivered at Phulpur, on 28.2.1984. It is the further case of the first plaintiff, that each one of the Polycone Insulators was packed securely in a separate wooden crates, in order to avoid breakage or damage in transit. The goods so entrusted had not reached the destination, whereas the defendant had informed the first plaintiff, that the truck carrying the suit consignment, met with an accident, resulting damage to most of the goods, for which the first plaintiff registered a claim for damage at Rs.91,583/-, for 17 nos. of Polycone Insulators. When the rest of the goods were delivered, the consignee noticed another Polycone insulator being damaged, for which a claim was lodged subsequently for Rs.5,387/-. The defendant also issued a damage certificate dated 10.10.1984 acknowledging their liability, but failed to compensate the damage.
(b) The consignment was insured with the second plaintiff under open policy. Since the first plaintiff had sustained loss, they lodged a claim before the Insurance Company. The second plaintiff, on receipt of notice of loss and claim, indemnified, by paying a sum of Rs.95,619.72, being the proportionate insured value of the goods. The second plaintiff is entitled to recover the compensation from the defendant, as per the special provisions of the Marine Insurance Act and by virtue of the letter of subrogation executed by the first plaintiff. After settling the claim, when the second plaintiff demanded the amount, the defendant failed to respond the same positively and therefore, the plaintiffs are constrained to file the suit, for the recovery of the amount.
(c) The defendant/appellant, accepting the entrustment of the goods, as well as the damage caused to some of Polycone Insulators, had contended, that the Court at Cuddalore had no jurisdiction, to try the suit, whereas the Bombay Court alone will have jurisdiction, that the defendant Roadways is not a common carrier, that the alleged damage occurred, due to the over turn of the vehicle, when it was parked on the road side, which should come within the meaning of vis major i.e. the act of god, that goods were carried at owner’s risk and that the plaintiffs have no right to claim against the defendant.
(d) On the above pleadings, framing four issues, the parties went on trial before the learned Additional Subordinate Judge, Cuddalore. To buttress the plaintiffs’ claim, 18 documents were exhibited, seeking aid from the oral evidence of P.W.1 and to counteract the same, Exs.B1 to B3 were exhibited on the side of the defendant/appellant, seeking aid from D.W.1.
(e) The learned Subordinate Judge, Cuddalore, after scanning the materials and appreciating the rival contentions of the parties, had come to the conclusion, that the defendant Roadways is a “common carrier”, that the goods entrusted to the common carrier sustained damage due to the careless and negligence act of the driver of the vehicle, which should be compensated by the defendant under vicarious liability, that the Court at Cuddalore has every jurisdiction, to try the suit and that the plaintiffs are entitled to claim, as prayed for. In this view, the suit came to be decreed on 24.4.1989 as prayed for, which is under challenge in this appeal.
5. In both the appeals, the question of law involved is one and the same. There is no dispute regarding the facts viz., entrustment of the goods, damage caused to them. Hence as agreed by the learned counsel for the parties, both the appeals were taken together heard and a common judgment is delivered.
6. Heard the learned counsel for the appellant, Ms. J. Anitha Jose Ukkur and the learned counsel for the respondents, Mr. Nageswaran.
7. The learned counsel for the appellant submits,
(i) that the trial Court lacks territorial jurisdiction, in view of the specific clause contained in consignment note,
(ii) that the appellant Roadways is not a common carrier,
(iii) that the goods, which were entrusted to the carrier, were not properly packed, to withstand the rigors of road transport and in fact, it had inherent vice in package,
(iv) that the goods were carried at owner’s risk and,
(v) that in any event, the claim is excessive.
On the above basis, it is the further submission of the learned counsel for the appellant, that unfortunately in both the cases, the trial Courts had not properly considered these points in its proper perspective, resulting incorrect judgments and decrees, which warrants interference.
8. Opposing the above contentions, the learned counsel for the plaintiffs/respondents would contend, that the defendant/appellant Roadways comes within the definition of common carrier, that the goods were damaged only due to the careless and negligence act of the carrier, not due to any inherent defect in the package, that the trial Court had every jurisdiction to try the cases and that the conclusion of the learned trial Judges, in both the cases, is well reasoned, based on evidence, not warranting any interference by this Court.
9. On the basis of the above submission and pleadings, the points that arise for consideration are :
(i) Whether the appellant/defendant Roadways is a ‘common carrier’, as defined under the Carriers Act 1865?
(ii) Whether the appellant/defendant is not liable for the damages claimed by the plaintiffs, in both the suits.
Points:
10. In Ex.B1 i.e. the goods forwarding note, there is a specific clause conferring jurisdiction only upon the Courts situated at Bombay. On that basis, a defence had been taken, that the Court at Cuddalore lack territorial jurisdiction, which was negatived by the learned trial Judges. In all fairness, Ms. J. Anithan Jose Ukkur, learned counsel appearing for the appellant conceded, that the trial Court had jurisdiction to try the suits and in this view, this point is not very much pressed. Therefore, we conclude, that the trial Courts, which granted decrees, had territorial as well as pecuniary jurisdiction, to decide the cases.
11. It is the common case of the parties, that on 28.2.1984 58 Nos. of 220-245 KV Polycone Insulators were entrusted to the defendant Roadways, to be consigned to the Executive Engineer, Electricity Transmission Division, Uttar Pradesh State Electricity Board, as pleaded in O.S.No.52/87. The truck, which carried the consignment, met with an accident at Pathor, Akola District, causing damages to 17 Nos. of Polycone Insulators worth about Rs.91,583/-. When the rest of the Polycone Insulators were delivered to the consignee, it was noticed that one more Insulator had been damaged, which is also admitted by the defendant/appellant as per the damage certificate dated 10.10.1984 (Ex.A9). Thus, as a whole, the total loss sustained by the first plaintiff was Rs.95,619.60. When this amount was demanded, the defendant carrier refused to honour, resulting a claim by the first plaintiff, on the basis of the Insurance Policy from the second plaintiff, which was complied with. On the basis of the subrogation, the second plaintiff is entitled to recover the amount. Regarding the damage sustained by the first plaintiff’s consignment, as well as the quantum of damage claimed, no dispute had been raised before us. In this view, we would conclude, that the first plaintiff had sustained a loss of Rs.95,619.60, which is the claim in O.S.No.52/87 (A.S.No.117/90).
12. As far as another claim is concerned, the goods entrusted to the defendant/appellant Roadways are 54 Nos. of 132 KV Polycone Insulators. This consignment was accepted by the defendant, giving an undertaking to deliver the same to the Uttar Pradesh State Electricity Board, Moradabad and their value was fixed at Rs.1,66,599.07. As averred in the plaint, which is not seriously disputed at the time of the trial, 16 Nos. of Polycone Insulators were in broken condition and the damage to the goods are valued at Rs.48,162.67. This consignment and the damage sustained are not seriously disputed, though for damage, the reason assigned is disputed. The first plaintiff in O.S.No.263/87, though claimed a sum of Rs.48,162.67, had received only a sum of Rs.32,736.83 from the second plaintiff and in this view, a decree has been granted to the above said amount. The damage caused to the goods consigned is accepted, though it is said that the damage was caused due to improper packing or inherent vice in the consignment. We find no dispute regarding the quantum of Rs.32,736.83 in O.S.No.263/87 (A.S.No.47/90). Thus, settling the amount in both the suits as herein before mentioned, we have to see, whether the defendant/appellant is responsible for the damage sustained by the consignor, if so, whether the appellant is liable to pay the amount.
13. The submission of the learned counsel for the appellant, that there was inherent vice in the goods, which were not properly packed, to withstand the rigors of road transport of long distance, has no base to stand, in the absence of the materials. When the consignment was entrusted in both the cases, there was no demur from the defendant Roadways, such as, the goods were not properly packed, to withstand the rigors of Road Transport. If really, as claimed before the Court, goods have not been packed properly, it is within the right of the roadways, to reject the same, refusing to carry. Admittedly, the appellant carrier accepted the consignment, which would indicate, that the goods were properly packed, with proper insulation, to withstand the rigors of road transport, whatever may be the distance. From the oral evidence of D.W.1 also, we are unable to see anything to say positively, that the goods were not properly packed, thereby sustaining damage, on its own during the transport. The oral evidence of P.W.1, supported by the attending circumstances of the case viz., the Roadways accepting the consignment, as worthy of transport, would indicate that there was no inherent vice in the goods. In this view, the appellant is not entitled to escape from the liability alleging, that the damage had been caused to the goods, not due to their negligence, but due to inherent vice. For the reasons which we are going to assign infra, this defence also may not be available to the defendant/appellant.
14. The learned counsel for the appellant strenuously urged before us, that the appellant Roadways is not a common carrier and in this view, unless it is established, that the loss or damage was owing to the negligence or the criminal act of the carrier, the plaintiffs are not entitled to recover the suit claim. The suits are filed, labeling the defendant/appellant as common carrier, liable in law, to make good the loss, to the plaintiffs, since their liability is absolute and unconditional under the Act, as if no duty is cast upon the plaintiff to prove the negligence or the criminal act of the carrier. In this context, we have to remember certain provisions of the Act.
15. Section 9 of the Act reads,
“In any suit brought against a common carrier for the loss, damage or non-delivery of goods including container, pallets or similar article of transport used to consolidate 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.”
thereby indicating that the plaintiffs are relieved from proving that such damage had occurred, owing to the negligence or criminal act of the Carrier, provided the defendant Roadways comes within the meaning of “common carrier”, attracting the provisions of the Carriers Act 1865. If the defendant/appellant is not a common carrier, then the benefit and protection given to the plaintiffs under Section 9 of the Act, may not be applicable. In this view alone, a defence had been raised, that the defendant/appellant is not a common carrier and in the absence of proof of negligence or criminal act of the carrier, the claim is not sustainable.
16. By going through the evidence available on record, the attending circumstances, as well as the other provisions of the Act, we are unable to persuade ourselves to take the defendant/appellant outside the definition of ‘common carrier’. In fact, the evidence available on record and the nature of business conducted or carried on by the defendant/appellant would suggest unquestionably, that it is a common carrier, as defined under the Act, and therefore, as such the appellant/defendant cannot escape from the provisions of law, throwing the burden upon the plaintiffs, to prove the negligence or the criminal act of the carrier.
17. Section 2 of the Act defines “common carrier” as:
“common carrier” denotes a person, other than the Government, engaged in the business of transporting property under multinodal transport document or of transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately.
It is an admitted position, that the defendant/appellant is transporting for hire property from place to place by land. They are having offices throughout India and one of its Branch Office is at Vadalur, where from they undertook to carry the consignment of the 1st plaintiff, to the destinations marked. If the carrier accepts the goods for transport, for all persons indiscriminately, then automatically the defendant Roadways, should come within the umbrella of common carrier. The burden is upon the carrier to plead in detail and prove, that they are not common carrier, whereas they discriminate, while accepting the consignment, according to person, having such conditions also, in their goods forwarding note. Though, it is pleaded they are not common carrier, to accept the same, detail pleadings are not available, supported by acceptable materials.
18. In order to bring the defendant/appellant within the description of a ‘common carrier’, the ingredients are:
(i) It must exercise as a public employment
(ii) It should undertake to carry the goods for persons generally in the transportation of goods for hire, as a business irrespective of the person i.e. for all persons indiscriminately.
On the other hand, if it is shown, that the business carried on by the Roadways is a casual occupation, then there is every possibility to say, that it is not a ‘common carrier’. In this view, the question depends upon the nature of public profession made by the carrier, with regard to the carriage of goods undertaken by it. Further the question is not to be determined by the description of the name used, but it should be inferred, from the nature of business, such as, whether this Roadways is engaged as a common carrier, accepting the goods from all, i.e from public in general. In order to avoid the liability, the defendant may say later, that it is not a common carrier, but it should be decided by the activities and the business of the Roadways, not by the name, it is called. It is the general principle, that whoever undertakes to carry other’s goods, for asking, for hire, on payment, is a ‘common carrier’. If that person restricts the business, for a particular person or qualifying certain persons, then only it may not be a common carrier. Hence, on the basis of the nature of business undertaken, and on the basis of the evidence, if any discrimination is shown, the matter should be decided, whether the appellant/defendant is a common carrier or not.
19. In both the cases, it is the specific case of the plaintiffs, that the defendant is a common carrier, which is denied in the written statements. Thiru Sundaramurthy who has been examined as P.W.1, in both the cases, had not spoken anything about the nature of carrier. Thiru Narayanasamy, who has been examined as D.W.1 in both the cases, in O.S.No.263/87 had deposed, that the defendant Roadways is not a common carrier. As rightly pointed out by the learned counsel for the appellant, the evidence so given by D.W.1 was not challenged. The same witness had been examined as D.W.1 in O.S.No.52/1987 also. Here also, he had deposed, that the defendant Roadways is not a common carrier. But during the cross examination, he admits, that they used to receive goods from all common people, whoever comes for transport and the only condition is that they must identify the goods, consigned. This evidence is proof sufficient to hold, that the defendant is transporting the goods for hire from place to place, for all persons indiscriminately. D.W.1 in O.S.No.52/87 having said so, when it was suggested, he reiterated that the defendant Roadways is not a common carrier. By assessing the evidence in totality, the nature of the Carrier should be decided and not by the assertion of the parties, by calling it, not a common carrier. Though D.W.1 had asserted, that the defendant Roadways is not a common carrier, his admission is that they used to receive the goods from common people, which would empathetically suggest, that they have accepted the goods for all persons indiscriminately, thereby bringing this defendant, within the ambit of common carrier. It is not the case of D.W.1, giving incident, that they refused to accept the goods, from somebody, though they were willing to pay hire charges, because of the fact, they reserved the right, to reject the person. No such conditions were also brought to our notice, from their documents.
20. The learned counsel for the plaintiffs/respondents would contend, that this transport company is advertising through electronic media, and print, inviting the customers, for the transport of the goods, which would also indicate that it is a common carrier. In none of the documents produced, which is used by the defendant, for accepting the goods, we find no restriction of any kind, even reserving right to reject certain classes of persons, in order to say, that they are in the habit of restricting or in other words they are not accepting the goods, for all persons, indiscriminately. D.W.1 had also not spoken how, they are discriminating, when the goods are entrusted to them, for transport. In the absence of any such pleadings and evidence, considering the totality of the circumstances, and the evidence of D.W.1 in O.S.No.52/87, we are of the considered firm opinion, that the defendant comes within the meaning of ‘common carrier’ as defined under Section 2 of the Act. In this view, the entire provisions of the Act is applicable, and the plaintiffs are entitled to rely upon the provisions of the Act also, to sustain their claim.
21. Section 6 of the Act provides, the liability of any common carrier for the loss or damage to any property could be limited by agreement. In the goods forwarding note, there is a clause indicating, that the liability of the company will in no event exceed Rs.1 per kg., irrespective of the total value declared. On the basis of this clause, Ms. Anitha Jose Ukkur made a feeble attempt to contend that the plaintiffs cannot claim the total value and if at all, the claim should be restricted to Rs.1 per kg.
22. In support of the above submission, reliance is placed upon the decision of the Apex Court in Bharathi Knitting Co. v. DHL Worldwide Courier Divn. of Airfreight Ltd., wherein the Apex Court has ruled, the liability of consignee limited to certain amount by contract between parties, specifically excluding liability of consignee for any damages or any indirect loss of market or profits, is legal and the parties are bound by such terms of contract. It is not the case of the defendant/appellant, in this case, either in the written statement or at the time of letting in evidence, that under the contract signed by the parties, the liability is restricted and therefore, Section 9 is not applicable or they are liable to pay the restricted damage alone, ignoring the loss sustained by the consignor. Absence of plea and evidence, impels us to reject this belated plea, as unsustainable, at the appellate stage.
23. The submission of the learned counsel for the defendant/appellant, that the goods were carried at owner’s risk also will not relieve the defendant, from paying the amount or extinguishing the liability. A common carrier is liable to the owner, for loss or damages, to any property, delivered to such carrier, to be carried, whether such loss or damage had arisen from the negligence of carrier or any of his servants. The term ‘at owner’s risk’ used in the goods receipt only should mean, if damages caused to the goods, beyond the control of the carrier, such as viz major or act of alien country, giving relief, not otherwise. Thus, irrespective of the fact, that there is a clause in the document, that the goods are carried at owner’s risk, will not disentitle the plaintiffs from claiming the damage, or will not relieve the common carrier, against Section 9 of the Act. Useful reference may be made to the following decisions as pointed out by the learned counsel for the plaintiffs.
24. In Hussainbhai v. Motilal a Division Bench of the Bombay High Court has held:
“The liability of a common carrier arises from the public employment in which he is engaged and the determination of common carrier depends upon whether the transaction was a casual nature or as a result of public employment. The test to determine whether a person is a common carrier or not is what he publicly professes. The public profession may be made apparent by a public notification or by actually indiscriminately carrying all goods. Such profession may be limited to transport of particular kinds of goods and/or may be limited to one particular route and/or to particular places. The liability to carry the goods arises by virtue of his profession as a public carrier under the common law.”
In the above cited case, considering the provisions of the Motor Vehicles Act also, the Division Bench has come to the conclusion, that the liability of the common carrier arises from the public employment, in which it is engaged. In this case, the defendant/appellant, publicly professes to undertake, for hire, transport of all such goods as are entrusted to it, even as admitted by D.W.1. It is not the case of D.W.1 that the company had limited class of goods or certain kind of persons. In fact, it agreed to carry for whosoever wants to engage the Roadways, though it may choose its customer and would dictate the terms, under which it would enter into contract with them. In the absence of any such contract in this case, the defendant Roadways being the common carrier, engaged in road transport, is liable for loss of goods damaged at the time of the transport or at the time of the accident, as the case may be. Though a feeble attempt was made to say, that the accident occurred through the act of God, it cannot be so. The driver of the vehicle, while parking the same by roadside, had not taken proper care and the result was the over turn of the vehicle causing damage. The careless act of the servant of the appellant, cannot be termed as an act of God, so as to give relief, to the appellant.
25. In Nath Bros. Exim International Ltd. v. Best Roadways Ltd. (2001-1-L.W.756), it is held by the Apex Court that by limiting special contract will not absolve the carrier in the case of negligence or criminal act of agents or servants and there is no burden cast upon the owners to show that the loss or damage was caused owing to negligence in criminal act of carrier. It is further held as follows:
“Section 6 enables the common carrier to limit his liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods, entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss or non-delivery of goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section 9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the king, a phrase used by the Privy Council).
The liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants”
26. A division bench of this Court in M/s. Assam Bengal Roadways (P) Ltd. v. M/s. Hindustan Photo Films Manufacturing Co., Ltd. (1988.1.L.W. 580) had the occasion to consider Section 9 of the Act, in which it has laid down on whom the burden of proof lies. It is held:
“S.9 of the Carriers’ Act shows that when once the loss, damage or non-delivery of the goods as proved by the respondents, the negligence or criminal act is presumed on the part of the carrier and then it becomes the duty of the common carrier to rebut the presumption. Thus, the onus of proving the negligence of the carrier is not upon the consignor and on the other hand, the loss or damage to the goods is prima facie proof of negligence under S.9 of the Carriers Act and the burden of proof to the absence of negligence is thrown upon the common carrier.”
As far as the subrogation is concerned, no dispute had been raised. This aspect is also considered by this Court, wherein it is held as follows:
“There is valid subrogation in favour of the second respondent (insurer) by the first respondent (consignor) and that being so, it is only the second respondent Insurance Company that is entitled to the suit claim. Under these circumstances, we find that the accident (pleaded by the appellants carrier) is not true and that the appellant (carrier) is liable for the suit claim and the second respondent is entitled to a decree for damages”
27. After the entrustment of the goods at Vadalur, the goods consigned were under the care and protection of the defendant/appellant and it is within their exclusive knowledge, how they carried on the goods to the destination marked. To show that the goods were properly handled or to establish that the goods were not properly packed, the person concerned has not been examined and no document has also been produced as to how the goods were transported, such as whether in the same vehicle through out or transported to some other vehicle etc. Thus, the defendant also failed to establish that they acted prudently, and exercised all kind of cares, while dealing with the properties and despite the fact, damage has been caused, for which they are not liable.
28. As rightly submitted by the learned counsel for the respondents/plaintiffs, at the worst, even as bailee, the appellant is bound to take much care of the goods bailed to him, as a man of ordinary prudence and in this case, the evidence would indicate, that while transporting the goods, the appellant had not taken due care of the goods, resulting damages. In this view also, the appellant company is liable to pay the damages, as claimed in the plaints, which quantum is not seriously disputed.
29. The trial Courts, considering all these facts and circumstances in both the cases, have come to the conclusion, that the appellant is a ‘common carrier’, liable to pay the suit claim, which are well founded, legally sustainable and we do not find any reason, to disturb the said finding. In this view, we would choose to dismiss the appeals, as devoid of merits, answering the points accordingly.
In the result, both the appeals are dismissed with costs, confirming the judgments and decrees in both the cases.