@JUDGMENTTAG-ORDER
N.K. Agarwal, J.@mdashThis is Defendant''s first appeal arising out of judgment and decree dated 5-10-1990 passed in Civil Suit No. 9-B/1987 by the Additional Judge to the Court of District Judge, Sarguja, Manendragarh.
Facts of the case in brief are as under:
2. A consignment containing gear box type KST- III 16 (imported) valued at Rs. 55,335.85/- was booked at Ranchi on 10-10-84 for its safe delivery at Manendragarh with the Appellant. Appellant issued necessary transport receipt. Respondent No. 1 after paying the value of goods to the State Bank of India became its owner. When it did not reach to the destination, a registered notice with Ad. was sent by the Respondent No. 1 to the Appellant for its delivery or for payment of claim i.e. cost of the goods booked. Appellant did not deliver the goods at Manendragarh. Respondent No. 1 filed the instant suit for recovery of the amount of goods against the Appellant, and the Respondent No. 2, since the goods in transit were insured by Respondent No. 2/Insurance Company. Appellant denied the plaint averments and raised a plea of want of notice u/s 10 of Carriers Act. It was also pleaded that the goods in question although reached to Appellant''s Raipur office but due to assassination of Ex-Prime Minister Smt. Indira Gandhi, the state enemies have put fire in their godown and due to that, the goods in question were burnt. The above act was beyond Appellant''s control and due to above fact, the decree cannot be passed against the Appellant. It was further pleaded that Appellant''s godown was insured with Oriental General Insurance Company at Raipur and Appellant had already initiated legal proceedings against the Oriental General Insurance Company in the court of District Judge, Raipur.
3. Learned trial Court framed issues. Parties have led evidence.
4. Based on the pleadings of the parties, evidence led thereupon and documents placed on record, learned trial court decided issues in Plaintiffs favour and decreed the suit against the Appellant as well as Respondent No. 2 holding them jointly and severally liable for payment of decretal amount.
5. The main contention raised by Shri B.P. Sharma, learned Counsel for the Appellant is that the loss to the goods booked was beyond control of the Appellant and as such u/s 56 of the Indian Contract Act, 1872, the contract has already frustrated and no decree can be passed against the Appellant. Reliance has been placed upon the judgment of Supreme Court in case of
(i) Section 56 of the Contract Act does not apply to the leases for once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. Events which discharge a contract do not invalidate a concluded contract.
(ii) The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. The view that Section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to principles of English law on the subject of frustration is not correct. Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The impossibility contemplated is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.
(iii) In the instant case there is no concluded contract since no deed was written or registered. It was an agreement to lease and that comes within the scope of Section 56.
(iv) There was frustration of contract as the parties could not go to Pakistan to give or take possession.
6. On the other hand, learned Counsel appearing for Respondent No. 1 supported the judgment and decree and would submit, in the facts and circumstances of the case, Section 56 of the Contract Act has No. application. The case is covered by provisions contained in Carriers Act, 1865 and the appeal deserves to be dismissed.
7. I have heard learned Counsel for the parties and perused the record of the trial court.
8. In the instant case, Appellant''s liability was as a common carrier under the Carriers Act. Liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in Section 9 of the Act in which it is specifically laid down that in a case of claim of damage or loss to or deterioration of goods entrusted to a carrier it is not necessary for the Plaintiff to establish negligence. Even assuming that the general principle, in cases of tortuous liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. However, the absolute liability of the carrier is subject to the exception wtiere the loss or damage arises from an act of God. An act of God will be an extraordinary occurrence due to natural causes, which is not the result of any human intervention and which could not be avoided by any amount of foresight and care e.g. a fire caused by lightning; but an accidental fire though it might not have resulted from any act of or omission of the common carrier, cannot be said to be an act of God. The Supreme Court in case of
40. In the case of Muralidhar Mohanlal v. Rivers Steam Navigation Company Ltd. reported in AIR 1967 Ass and Nag 79 considering the provisions of Sections 6, 8 and 9 of the Carriers Act, the High Court held that these sections are based on English common law and also the Common Carriers Act of England. The Court placed reliance on the Privy Council decision on Irrawaddy Flotilla v. Bugwandas reported in ILR (1891) 18 Cal 620 in which the legal position was stated in the following words:
For the present purpose it is not material to inquire how it was that the common law of England came to govern the duties and liabilities of common carriers throughout India. The fact itself is beyond dispute. It is recognized by the Indian Legislature in the Carriers Act, 1865, an Act framed on the lines of the English Carriers Act of 1830.
The Court also relied on the following passage from Halsbury''s Laws of England, third Edition, Vol. 4 at pp. 141-143:
A common carrier is responsible for the safety of the goods entrusted to him in all events, except when loss or injury arises solely from the act of god or Queen''s enemies or from the fault of the consigner, 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 goods against everything extraneous which may cause loss or injury except the act of god or queen''s enemies and if there has been an unjustifiable deviation or negligence or other fundamental breach of contract on his part, he will be liable for loss or injury due to Queen''s enemies or, it would seem, due to act of god.
This 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 the 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.
A common carrier is liable for loss or injury caused wholly by the negligence of other persons over whom he has no control; as where the carrier''s barge runs against an anchor wrongfully left in the water by a stranger, or where the goods which he is carrying are destroyed by accidental fire or by rats, or where they are stolen from him, even though taken by force.
The general obligation of a common carrier of goods to carry the goods safely whatever happens renders it unnecessary to import into the contract for carriage a special warranty of the roadworthiness of the vehicle or the seaworthiness of the vessel, for, if the goods are carried safely the conditions of the vehicle or vessel is immaterial, and, if they are lost or damaged, it is unnecessary to inquire how the loss or damage occurred. Where however, a common carrier of goods is seeking relief from liability by reason of one of the excepted perils the condition of the vehicle or vessel is material in determining the question of negligence, and if the carrier fails to provide a sufficient and proper conveyance and loss or damage results therefrom he will be liable.
9. In view of the above judgment of Supreme Court, a common carrier is responsible for the safe delivery of goods entrusted to him in all events, except when loss or injury arises solely from the act of god or of state enemies or from the fault of the consigner, 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 goods against everything extraneous which may cause loss or injury except the act of god or state enemies and if there has been an unjustifiable deviation or negligence or other fundamental breach of contract on his part, he will be liable for loss or injury due to state enemies or, it would seem, due to act of god. Therefore, in view of above legal position, Section 56 of the Indian Contract Act has no application in the facts and circumstances of the case and the judgment cited by Shri Sharma is of no help to him.
10. As per Appellant''s case, due to assassination of Ex-Prime Minister Smt. Indira Gandhi, a mob put fire in their godown and goods in question were burnt. The above incident was beyond Appellant''s control. Such mob cannot be termed as state enemies nor the above act of fire can be held to be act of God. As per the judgment of Supreme Court as referred hereinabove. More over on evidence, Appellant failed to prove loss, destruction occurred due to fire put by mob on their godown on 1-11-1984. As per statement of D.W. 3 Preetam, i.e. director of Appellant company, he is not in a position to say whether or not the goods in question were burned in the said fire. The goods were booked on 10-10-1984. It should have been reached Manendragarh within 15-20 days. In absence of any definite and cogent evidence regarding destruction of the above goods in the fire, it cannot be said that the goods in question were lost, destroyed due to above fire. Evidence adduced by the Appellant also suggests that proper care has not been taken by the Appellant to save the goods from alleged loss. Further as per their own case, their claim against the Oriental Insurance Company is pending and as such even on facts, the Appellant could not establish his defence taken in the written statement.
11. For the foregoing, I do not find any substance in the appeal. The same being devoid of substance deserves to be and is hereby dismissed.
