the River Steam Navigation Co., Lt.D v. Shyam Sundar Tea Co., Ltd.

Judgment

The State of Madhya Prade•li v Shri Moula. Bux and others M. H idayatuUali M•y, 5. [1962) of India, does not apply to a Part C State, and only the definition in cl. (b) of the section :ipplies to this State, even though a Part C State. In our opinion, therefore, the decision of the Judicial Commissioner was correct. Since no other point was urged in this appeal, it must fail, and it is accordingly dismissed with costs. There is no need to pass any order on C. M. P. No. 40 of 1960 by which the respondents asked for amendment of the plaint and addition of the Union Govermnent as a party. The application shall be filed. Appeal dismissed THE RIVER STEAM NAVIGATION CO., LT.D SHYAM SUNDAR TEA CO., LTD. (P. B. GAJENDRAGADKAR, K. N. WANCHOO AND K. c. DAS GUPTA, JJ.) Common .

Carr~er-Steam11hip Companv carrying, goods steamer in main stream-Feeder aervice by boata in tributary-Goods lo•t in transit in ,uch service-Liability-- Company, if, a common carrier in the feeder aervice-Te•I Carriers Act, 1865 (3 of 1865), s. 2. The question whether a carrier is a common carrier or not has to be decided on its public profession and such profession may be either by public notice or by conduct. It is immaterial if the carrying is limited to partic;iiar goops or particular routes or between specified points. Lane v. Ootton12 Mod. 474; lngate v.Chriatia, (1950) 3 Car. and K. 61 andJhomon v. Midland Rly., Co. (1849) 4 Ex 367, referred to. 2 S.C.R. Consequently, where, as in the instant case, the steam~r companies, which were by public profession common carriers in the main stream and invariably agreed, when requested, to arrange for carriage of goods hy boats from stations situated on its tributary to the steamer station, accepting goods as indiscriminately as in the steamer service, were sued for loss of goods in the tributary and the High Court, while reversing the finding of the trial court as to the negligence of the comp mies, affirmed its decree against them on the ground that they were cammon carriers.

Held, that the decision of the High Court was r.orrect and must be affirmed. There could be no doubt that the service in the tributary was in the nature of a feeder service to the main route and the public profession made in respect of the latter attached to it. He Id, further, that it was of no consequence that the feeder service yielded no profits. Nor was regularity or otherwise of the feeder service a relevant consideration. Law does not require that a common carrier must have a fixed rate for carriage of all goods and the absence of such a fixed rate in the feeder service was wholly immaterial. CCTIL APPELLATE JURISDICTION: Civil Appeal No. 40! of 1957. Appeal from the judgment and decree dated June 15, 195! of the Assam High Court in First Appeal No. 23 of 1950. D. N. Mukherjee, for the Appellants. B. Sen, P. K. Chatterjee and P. K. Bose, for the Respondent. 1961, May 5. The Judgment of the Court was delivered by.

DAS GUPTA, J.-This appeal is from .the jud~­ ment and decree of the High Court of Judicature m Assam affirming the judgment and decree. m~de ~y the Subordinate Junge of Upper Assam D1strwts, m a suit brought by the respondent Shyamsundar Tea Co., Ltd., against the present sppellants. The The River &tam Na1•igaJtion Go., Ltd. Shyam Sundar Tea Go., Ltd. Das GuptaJ, Th< RiVer Stear11 ... V rt1,iga,tinn Co., Utl. 8h11am Sun11ar J.'en Co., Ltd. Da" Gupta.I. [1962] appellant companies are joint owners of Steamer service between Dibrugrah and Calcutta. The main servic« is along t.he Rrnhmputra River. Desang is one of the tribut·1ri"R of th<' Bml11np11t.n1 and meets the main stream at Dosangmukh Ghat.

The plaintiff's case in the plaint was that the <lefl"ndant compm1i1's as common carriers receivPd goods at Dillihari Ghat whicn is situated on tho Desang about 70 miles up-stream from Desa11gmukh Ghat for carriage "therefrom by boats to Desangmukh Ghat r.nd then by their steamers to different stations on payment of freight". It iR further the plaintiffs ca.~e that on September 10, 1946, the plaintiff company deliYered 120 chests of tea to the defendants at Dillibari Ghat for carrying therefrom and delivery of the same at Kidderpore i11 Calcutta. The boat carrying these tea chests sank; the tea chests were lost and could not be salvaged. The accident was, according to the plaintiff, due t0 the negligence on the part of the defendant companies' agents and servants. On this ground of negligence as also on the ground that the companies as common carriers were liable to make good the loss whether or not there was negligence, the plaintiff claimed the sum of Rs. 16,224-12-0 as compe11snt.ion for the loss.

The defendants raised a fonr-fold defence. The first contention was that there was no delivNY to the defendants at all at Dillibari Ghat and t lie defendants did not undertake any carriage of the goods from Dillibari Ghat. Secondly, it was said that the sinking of tlw boat was not due to a11y negligence on the part of the dC'fcndants' servants. The third contontion was that the defendants were 11ot. a common ca1Tier in respect of carriage of goods from Dillibari Ghat to Desang. Lastly it was pleaded that in any case the conditions of the Forwarding Noto which was executed by the plaintiff' company completely absolved the defendants from all liability. 2 S.C.R. SUPREME COUR'l' REPORTS The trial Court held on a consideration of the evidence that the goods were delivered by the plaintiff to the rkfendants at Dillilmri Ghat for carrirgo from there to Kidclerpore, Calcutta.

It also hold that the sinking of the boat w1s due to nealiD"encc on the r)art of the defendants' servants. o ,., 1 Accordingly, without corning to a c car cone us10n whether the defendants were common c1rriers or not in respect of this contract of carriage the Trial Court gave the plaintiff a decree for the sum as claimed. On appeal the High Court of Assam affirmed this decree, th<;mgh not for qnite the same reasons. The High Court agreed with the Trial Courts' conclusion that there was delivery of the goods to the defendants by the plaintiff at Dillibari Ghat for carriage therefrom. On the question whether the sinking of the boat was due to the negligence of the defendants' se~vants the learnC'd Judges of the High Court did not however accept the Trial Court's view. Their opinion, it appears, was that the plaintiff had not been able to establish the case of negligence on the part of the defendant's servants.

The High Court however came to the conclusion that the defendants undertook this carriage from Dillibari Ghat in their capacity as common carriers and so the question whether there was negligence or not was irrelevant. The High Court also found that the terms and conditions of the Forwarding Note did not.in any way absolve the defendants from li:tbility. Accordingly, the High Court affirmed the decree made by the Trial Court. It may be mentioned that though on both the points, viz., whether the delivery of the goods at Dillibari was to the defendants and whether the defendants were, for such carrying from Dillibari, common carrier, one of the learned judges, Ram Labhaya, J. appears to have been hesitant in coming to his conclusion but ultimately on both tl\ese points he agreed with the Chief Justice and The Riw· Steam }{avigat-ion Co.~ Ltd. Shyam. Sundar Tea Co., Ltd. Das Gupta J. The River Steam Navigation Ga., Ltd. Shyam 811ndar Tea Go., Ltd, Das Gupta .J. [1962] the agreed conclusions of both the learned judges were, as we h3ve mentioned above.

The High Court gave a certificate under Art. 133(l)(c) of the Constitution and on that certificate the present appeal has been brought. On behalf of the appellants Mr. Mukherjee has tried to persuade us to examine the findings of the Courts below that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat. He tried to show th3t it was Mecneill and Company who used to run this boat service from Dillibari to Desangmukh and that the defendants had nothing to do with this business. Apart from the fact that such a case that Macneill and Company used to carry on an independent boat service business to Desangmukh was not made in the plaint, we are !latisfied that there is nothing that would justify us to depart from the well established practice of this Court n-0t to interfere with concurrent findings of facts, of the Trial Court and the first court of appeal.

We may however indicate that having been taken through the evidence we have no hesitation in stating our agreement with that finding, viz., that the plaintiff delivered the tea chests in qn~s­ tion to the rlcfendants at Dillibari Ghat for carriage therefrom. W o see no reas~n also to interfere with the High Court's findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants' agents. '!'his brings us to the main question in controversy, viz., whether the appellants were common carriers of goods between Dillibari Ghat and Calcutta. The appellants admit that they are common carrier:! between Desangmukh Station and all other places on its steamer routes.

They contend however that that does not make them common carrier between Dillibari Ghat or other places not in its steamer service route, to any places on the steamer service route. 'The respondent' secase, on the other ha.nd, is tha.t once it is established that the defendants are common carriers within the meaning of thfl definition in the Carriers AGt, they must be held in law to be common carriers whenever they nmfortake carriage of goods, unless with respect to the particular carriage they show definitely that they did not act as common carriers. The Carriers Act, 1865 (Act III of 1865) defines "common carrier" in these words : " 'Common carrier' denotes a person, other than the Government, engaged in the business of transpOl'ting for hire property from place to place, by land or inland navigation, for all persons in discriminate ly ." This definition is based on the English common law as regards the common carriers. The common hw if)

England rleveloped from quite early times to make tho profession of common carriers a kind of public service ;· or as stated by J,ord Holt in an early case "a public trust". (Vide Lane v. Cotton) (1). It is where such apublie trust has been undertaken as distinct from a mere private contract that a carrkr ceases to he a private carrier but bceomes a public carrier or aR EngliHh law ca.llR "a common earrier." Explaining the distinction between a mere carrier and a common carrier, Alderson B, said in Ingate and Another v. Ohristis('): "Everybody who undertakes to carry for anyone who asks him, is a common carrier. The nriterion is, whether he carries for particular persons only, or whether he carries for everyone. If a man holds himself out to do it for everyone who asks him, he ia a common carrier ; but if he .. does not do it for everyone, but carries for you and me only, that is a matter of specinl contract." (I) 12Mad.474. (2) (1850) ~Car a. K. 61, The River Steam Navigation Go., Ltd. Skyam Sumlar Tea Go., Ltd. Daa Gupta J. The River Steam !{atifgatinn On., Jtd.

Shyam Sundr!r Tea Go., Ltd., Das Gupta J. SUPREME OOURT REPORTS (1962] The question in any particular case whether the carrier waR a common carrier or a private carrier has therefore to be decided on the ascertainment of what he publicly professes. This profession, it need hardly be mentioned, may be by public notice or by aotual indiscriminate carrying of goods. It is also clear th~t the profession to carry goods indiscriminately may be limited to particular goods or to particular routes or even as to two or more specified points. In Johnson v. Midland Rly., Co.(') the question arose whether the R'lilway Company were as common carriers bound to carry coal from Melton Mowbray to Oakham, Parke B, with whom Alderson B, Rolfe B, and Platt B, agreed stated the law thus:

"A person may profess to carry a particular description of goods only, for instance, cattle or dry goods, in which case he could not be compelled to ca.rry any other kind of goods; or he may limit liis obligation to carrying from one place to another, as from Manchester to London, and then he would not be bound to carry to or from intermediate places." Turning to tho facts of tho case before him the lea.med Baron stated: "Now, if the defendants stand in the situation of carriers at common law, they arc not liable, becau8e it does not appear in evidence that they ever had been a. pnblic profession by them that they would carry coals from Melton Mowbray to Oakham." Ultimately the learned Judge recorded the conclusion thus: "I think that the oiroumstanoes of their having undertaken to be carriers does not. (S) (lSi-9) + E;a:. 367. The Rfoer Steam N avigalio'fl, Ca., Ud. Sliyam Sundar Te.a Co., Lt1!. Das Gupta J. [1962)

Brahmputza that the companies are able to get sufficient cargo for their steamers, it was only natural that they would accept goods for carriage from places aw<ty from the main stream as indiscriminately as they do for carriage from stati0ns on the main st.earner route. The defendants' witness Mohammad Abdulla who is their Ghat Supervisor at Desangmukh has stated that "the Steamer Company b{\ars expenses of the clearance of the rivers to make them navigable." Such conduct is consistent only with tho case that the companies are anxious to receive whatever cargo they get for carriage from places on the river Desang and other tributa1·ies to stations on the main steamer route for further carriage on the steamer route.

The service on these tributaries can therefore be reasonably described as a "feeder service" for the mP.in route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these "feeder routes" also. Against all this, Mr. Mukherjee pressed for our consideration three circumstances: (i) that the rate for carriage from Dillibari wns not a fixed rate; (ii) that there was no regular service but boats were supplied only on requisition; and (iii) that the carriage was made without profit. Nothing turns on the third fact-assuming that.it has been established-that carriage from Dillibari to Desangmukh is made without profit. If this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient, profits to make. up for the loss in feeder service.

The circumstance that there was no regular fill service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profe~sion to carry indiscriminately. Even if there was a regular service, there might not be a profession to carry indiseriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained. If, as the evidence appears to estaLlish, the companies were ready to supply boats whenrver Ieguested, without picking and choosing, that would be sufficient public profession to aot as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants' contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods. 'fhe law was stated thus by Blackburn J. in G. W. Ry. Oo., v. Sutton ( 4):

"There was nothing in the common law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate, or nven gratis. All that the law required was, that he should not charge any more than was reasonable." "The requirement of equality of charges", as pointe<l out by Prof. Otto Kahn·l<'re-und in the law of Carriage by Inland Transport (3rd Edition) at p. 190, "in so far as it existed, was entirely the creation of statute while the common law regards nequality as nothing more than possible evidence of iunreasonableness." That there was no fixed charge for carria<'e from Dillibari cannot therefore be any reason to think that the arpellants were not common carri· ers in respect o carriage from Dillibari. (4) (1869) L.R., 4 H.L. 226 at. 237. '11 h c River Stea1n, j,Vaviyation G1o., Ltd. J::Jhyarn /S 1undur 'L'eu Gu., Ltd. Dus Gupta J. $1'2 . , , [i9~2j . . . . The.next ~rg{iment of · l\Ir. . l\Iukherjee .was The Riter Strom almost anargument of despair ..

He points out that 1Yai:igatian Co., there was a" Forwarding Noto (Ex. B) executed· by . Ltd. tbe plaintiff in' respect cif the ·journey from. Des-. . ShyamvSurutar·· ,angmukh to' Calcutta and there was a special con- Tea Co., Ltd. tract there limiting the carriers' liabliity. If the appellants.were really common carriers in respect of the carriage from Dillibari, is it conceivabfo, he asks, that there· would not be a similar Forwarding Note covering the carriage from .Dillibari ~o Desingmukh? That however is a totally wrong approach· to the problem: . A common carrier may restrict his liability by special contract.~ But tho_absence of a special contract cannot show that -heis -not a commo~f carrier. · The .. fact that the: appellants did not take care to ·make a special·: contract in' respect · of carriage from Dillibari is .therefore· wholly· irrelevant.

I On a consideration · of . the entire evidence therefore we are of opinion that the appellants did profess by their conduct, even if not by any public notice, . that they would . carry .goods indis- . criminately for all those who askfor such carriage from ,Dillibari to various places on their main steamer route. They were . thus common carriers' in respect of the carriage of the plaintiff's goods · from Dillibari. A last contention was rais~d,' ~gain, .. ·· on th~ :forwarding Note. - It was urged that in ariy case ·this should be interpreted as covering the carri-, age from Dillibari also. ·In terms the Forwarding Note was limitedto the 'contract of carriage. as from De8angmukh to ·Calcutta. ·By no method of construction of the document can it be extended to the journey· from ,Dillibari. All the contentiori&-raised in tho appeal there: fore-fail. The appeal is accordingly diStnissed with costs. ,;·; ·, ".; .App-edl -- dis1nissed,