9911796707
TMI Blog1982 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... of beniyans to self on 14th December 1974 at Trichur and paid the lorry charges. The destination was Willingdon Island. But the office at the Willingdon Island did not deliver the goods and the Plaintiff was informed that the goods had been lost by fire. The fire was on 19th December 1974 five days of the consignment of the goods. According to the Defendant the goods were lost by fire and such fire was caused by short circuit of electric wires. That was said to be not on account of negligence or carelessness of the Defendant and hence the Defendant urged that he was not liable. The facts are more or less admitted and on these facts the trial court found that the Defendant as carrier must answer for the loss of the goods. Accordingly a decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an insurer of the goods and is answerable for its loss. This concept as to the liability of a common carrier has been applied in India uniformly. The rule of the Roman law as to the liability of a carrier is different. It does not conceive of an absolute liability as in the English Common Law and the rule of the Roman Law has been adopted by many States in the continent. The extent of liability of a bailee under sections 151 and 152 of the Indian Contract Act, 1872, is different from the extent of liability of a common carrier. A bailee is only bound to take proper care of the goods and for loss beyond his control he is not answerable. But the provisions of the Indian Contract Act do not govern the liability of a common carrier nor do t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the contention canvassed by learned Counsel could be supported on the basis of the passages relied on by him. It has been noticed that in England carriers operating road transport have generally protected themselves by the method of entering into special contracts, so much so, that their absolute liability as common carriers do not normally arise. That and that alone, according to me has been said in the passages relied on by learned Counsel. In fact, it is the decision in (1918-1 KB 210), that is cited in support of these passages. What was found by Bailhache, J. in that case was that on the facts of that case the Defendant was not shown to be a common carrier. The learned Judge said in conclusion: After all the question is one of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases accidents may be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God. Cockburn, C.J. in the leading case in Nugent v. Smith 1876-1 C.P.D. 423, said: It is at once obvious, as was pointed out by Lord Mansfield in Forward v. Pittard, that all causes of inevitable accident- 'fortuitus' -may be divided into two classes--those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I see nothing in the decision in the Ghidambarakrishna 'Iyer Nataraja Iyer v. South Indian Rly. Co. 21 Trav LJ 1, to which my attention has been drawn by learned Counsel for the Defendant to warrant the view that even when the accidents are purely the result of acts of human agency, it could be taken to be acts of God. 3. The absolute liability of the carrier is subject to two exceptions. One of them is any special contract that the carrier may choose to enter into with the customer and the other is act of God. That act of God does not take in any and every inevitable acciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere no fire extinguishers, there were no buckets with sand and there was not even a watchman. It is the watchman in the neighbouring premises who was good enough to notify about the fire long after the fire started. That was responsible for inviting the fire fighting force to the place. The officers of the Defendant company reached the place long thereafter. That shows that no precaution had been attempted against the possibility of a fire. In this view the above said clause cannot be invoked by the Defendant and the Defendant would be liable to answer the plaint claim. We therefore hold in agreement with the court below that the Plaintiff is entitled to the decree sought. No interference is called for in appeal. The appeal is dismissed, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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