Ponnuswami Mudaliar was the first respondent who had purchased at Koilpatti through his agent  who was the 2nd respondent, where  26 boras of karunganni cotton, and entrusted it on 5-8-1952 to the appellant who used to run a lorry service for transport of gods and used it as mean for  common carrier, where it was carried and delivered at Coimbatore. The lorry hire money had  tobe paid at the destination. The goods were added in the lorry of the appellant, and it had started its journey on the very day. While the lorry was going near Oddanchatram, a place in the Madurai District and  it was noticed thatthe cotton bales were on fire, the origin and cause of it is not being ascertainable from the present evidence. There were a lot of efforts which were made to turn down the fire but did not have much success. The driver and appellant due to their respected efforts were  able to salvage some cotton  by risking themselves; the rest was entirely burnt by the fire. The appellant could  not even deliver to the first respondent. the salvaged cotton. In these circumstances, respondents had instituted the suit, out of which the appeal arised, for recovering of a sum of Rs. 6730 and subsequent interest as damages for the loss of the goods.

FACTS OF THE CASE

The claim  mainly was on the fact that  the appellants had failed and could not deliver the consignment as they had agreed upon. There was also the plea which was that the loss of goods was result of  the gross negligence of the appellant and servants, and that they should be held liable for the non delivery. The suit was filed in the Court of Subordinate Judge Coimbatore, on the fact  that a part of cause of action had arose  at Coimbatore where the cotton was agreed to be delivered and lorry charges were to be paid.

The appellant and the driver  were impleaded and were parties to the suit which  denied that there was any type of  negligence on their part, they also  stated that they had taken all the reasonable care a  sane person could take and there shouldn’t be any liability attached to them.the jurisdiction of the court in Coimbatore was not be accepted as they said that it the hearing should take place where the loss had occurred .the learned subordinate upheld that there and lorry was properly equipped and well protected and fire was not because of negligence, therein and that it was not attributable to any type of negligence on the part of the driver. But he held that the liability as bailee was there was a special liability of the appellant which  as a common carrier for not having safely delivered the goods. Rejecting the plea as the want of jurisdiction on the ground that a part of which the cause of action arose at Coimbatore, he assessed the damagesand the amount  for the loss of goods in a sum of Rs. 6731 and passed a decree and  for that amount against the appellant in favour of  first respondent. And hence,The claim against the driver was dismissed.

ARGUMENTS OF THE CASE;

In Appeal MR KS RAMAMURTHY raises two points that even a common carrier the appellants liability would be of a regular bailee under sec 151 sec 152 and insisted that his lient took reasonable care that a man of ordinary prudence would take and argued that his client should not be held liable. The second contention is that the claim for damages based as it was on an alleged breach of duty on the part of a common carrier, should be held to be on tort, and the cause of action could be held to arise only at the place where the accident took place,and that not being within the jurisdiction of the Coimbatore Court, the lower Court had no jurisidiction to entertain the suit.

The first claim be explained as a common carrier would be someone who would transport the goods of one person from a place to another for some sought of reward for people who would chose to employ him. the duty of the common carrier would be is to receive all goods and ensure they are in proper condition and provided they are packed properly and he has the convenience to carry them. The common carrierwho is  employed would be bound to provide safeltyof the goods during carriage and till delivery but  unless prevented by an act of God, enemies of the States or unless there is loss or damage to goods arises from an inherent defect in the goods that he has no role to play in  or by the reason of their packing.

A common carrier is totally responsible for the safety of the goods entrusted to him in all the events but except when loss or an injury arises from solely form act of God or the Queen enemies which is not related or from the fault  which could be of the consignor, or inherent vice in the goods by themselves. He is therefore liable and even when he is overwhelmed and when robbed by an huge or uncontrollable number of persons. He is an insurer of the safety of the goods  and against everything which is  extraneous and that  which may cause certain loss and or injury except for  the act of God or of  the Queen’s enemies and say if there has been an unjustifiable deviation or type of a negligence which is other fundamental breach of contract from  his part,so  he will liable for the loss and injury due to the Queens enemies  or it would seem, due to the  act of God. The responsibility that as an insurer which is imposed upon a common carrier by the customs of the realm when  it is not necessary to prove a contract between him with the  owner of the goods to establish the  liability. So if there is Failure on the part of the carrier and he could not deliver the goods safely then there is a breach of a duty which is placed upon him by the common law so therefore, an action of tort lies against him for such a breach, the owner  who is not being bound to prove any type of contract. Where, however say there is a contract, liability could arise either at common law or  maybe under the contract and the contract could limit the carrier’s responsibility.

Thus, a common carrier and  to whom goods were entrusted for the  transport, that they  should provide a resonably fit and a proper vehicle which could be used for the  carriage of the goods could be entrusted and carry them safely they should be loaded and unloaded  properly to deliver the same at the destination. A common carrier being thus under an obligation to deliver the goods safely so that he  would be liable to what happens to them during the time when he is in their  custody. His liability therefore can  be said to be that of an insurer. Under the common law of England where  there were two categories of bailees and  on whom the law had imposed a greater responsibility by common carriers and innkeepers as these were held liable for the safety of all the goods and were  entrusted to them in all the events but for except  the loss or injury to them that  was occasioned by an act of God and say the Kings enemies or from the fault of the consignor which could be  due to the inherent defect in the goods as  An act of God will be an what u call an extraordinary occurrence and due to natural causes that which is not the result of any type of  human intervention which therefore  could not be avoided by any amount and  of any foresight and  proper care. A fire that has been  caused by the lightning. But say an accidental fire that as in the present case even though it might not have been resulted from any act of or by any omission of the appellant so it could not be said that there is  to be an act of God.

 In the Irrawaddy Flotilla Co. V. Bugwandasthe case which could be used an example when theb Privy Council held that the duties and liabilities of a common carrier in India were governed by the principles of the English common law and that his responsibility which is  to the owner was of the virtue and him exercising the public employment for a certainty of a reward an as incident to the contract which is  between him and the consignor. Under Section-3 of the Carriers Act we can say that  a common carrier  who would not be liable for any  loss of damage or of  goods above Rs. 100 in value which come within the schedule of the Act and it is to be duly followed and unless the value of the goods has been declared  where it is expressly of by the consignor then cotton is not one of the goods which is specified in the schedule and Under Section- 5, in a case where there is  loss of the consignor and would be entitled to recover not merely say  the value of the good but also the charges which are to be paid for carriage. So It will be open to a carrier to limit his liability by signing a special contract, signed by the owner of the goods.and it embodies the principle of negligence, for the obvious reason that the liability of common carrier is that of an insurer and we can say that It would, therefore not follow that, but withstanding the fact that actually  there was no negligence from  the part of the appellant and  he would be liable to compensate not only the first respondent but also  for the loss of the goods that had occurred during the carriage thereof by the lorry  which is belonging to the former.  Therefore we can  agree with the conclusion arrived at by the learned subordinate Judge on this question.

ISSUES IN THE CASE

 It is next contended that as the suitbeing one for damages for injury and  to the goods by reason when there  a breach of duty of the carrier and could be argued that  it should be held to be an action in tort and also should have to be instituted where  in a Court which is having jurisdiction over the place where the accident or loss occurred. SEC-19 claims that case should only be fought where loss had occurred and therefore it would be invalid in the court of law  In the case of a claim for damages for a tort and say  the commission of the tortious act which  will undoubtedly form a part and it would be of cause of action so thedamage suffered would  also be a part of it. It is not disputed before us and also that neither the place where the breach of duty took alleged took had place nor the one where the loss occurred was within the jurisdiction of the Coimbatore Court which as its  being not contended or argued and that the place of delivery was the one and that’s where the loss occurred.so  It is equally not disputed, that if so the suit is construedand  as one based on a contract the Coimbatore Court will have jurisdiction because  as admittedly a part of cause of action that had a arose at that place. Under the circumstances as it becomes necessary for  to consider to which category and also the claim in the present case belonging to.

The suit is one where there is  consignor of goods for non-delivery thereof at the destination.. It is stated that the loss was the result of gross negligence  from the part of the defendants. This is on the basis that defendants had not shown enough care to care of the goods as a result of which negligence on their  behalf  andhas been substantially the cause of action alleged is on a breach of contract to where to deliver the goods and also to take that amount of care which is required and of a bailee under Section 151 and  section 152 of the Contract Act. It was however contended that for the appellant that the relevant paragraph as  in the plaint proceed not on the basis  say of any express or implied contract and to deliver the goods safely but  at destination but say on the common law liability and  of the carrier for breach of duty to ensure a safe carriage of good  and that the claim which  in such a case can only be in found  tort and never in contract.

Even assuming that the plaintiff in the instant case should only be construed only as alleging a breach of duty and  on the part of the appellant for  the claim for damages but cannot for that reason be said to be unrelated to a case on thef breach of a contractual obligation. The claim is made by the consignor himself who had  entered into a contract  son with the appellant for the carriage of the goods form Koilpatti to Coimbatore which having regarded to the nature of the business and say of the appellant implied and to  a safe carriage of the goods. A breach of that obligation then would be a breach of contract as It may be  that by virtue  of the public employment of the appellant where  and the nature of his obligations that  he would be liable in tort. And That would only mean that so far as the consignor who is concerned and he can at his option sue on contract where on tort. also  where the claim is madeand by  by the consignee where his the position might be different and as he not being a party to the contract of carriage made by the consignor, he will not be able to enforce a contractual obligation but can only be  sued on tort.

At the present day we can differentiate tort and contract from one another in that the duties in the former are primarily fixed by law, while in the latter they are fixed by the parties themselves. Moreover, in tort we can the duty is towards persons and generally  in contract  as it is towards a specific person or maybe  specific persons where  In a case under the Country Courts Act 1919, an action failed by stock broker to client where the client was held to lie in contract Greer and they had said that The distinction in the modern view for this purpose and between contract and tort may be put like where  ‘Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract’where  it is tort, and it may be a tort and even though there may happen and  to be a contract between the parties, if the duty is in fact arises independently of that contract where there is a breach of contract  that occurs where that is complained and is a breach of duty arising out of the obligation undertaken by the contract.

The same subject is dealt with in Halsbury’s Laws of England, Vol. I (Simonds Edn.) at page 36 thus :

“In deciding whether an action is founded on contract or on tort, the substance of the action must be looked at and the form of it as stated in the pleadings is immaterial. Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract the action may be said to be founded on tort, and it may still be founded on tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract; an action may be said to be founded on contract where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract.”

Where there is a contractual obligation to deliver the goods at a particular place, an undertaking can be implied having the regard to the context and in which the contract is made, namely, with say a common carrier who would have  has such an obligation to deliver the goods safely at the required destination. In that case then  there would be a personal obligation. An independent obligation also would also exist by reasona and  of the duty which the carrier owes by reason say of his calling. The mere existence of a independent ground of liability on tort that  cannot take away the right of the party where fot it to the contract it can sue for breach. But such a person who will not be bound to sue on the contract then he may rest his claim on and move on to alternative basis of tort. This option exists only to a  party to the contract like where however the action is laid which is against the carrier by the consignee like who is not a party to the contract and the liability which is  sought to be enforced  that would be independent of itsb contract eventhough proof of the contract  which might be necessary to show that the defendant who was acting as a carrier and as so  such liable as an insurer that  In such a case the liability for the breach of duty and also  to deliver the goods safely  which would be independent of the terms of its contract entered into between the consignor and the common carrierMr. Ramamurthi however contends which was entered and  that no claim on the basis of contract which can lie suppose when a common carrier is sought to be proceeded against and  for the breach of his duty where to  deliver safely the goods which entrusted to him for carriageand   whether the action which  is laid at the instance like  of the party to the contract or  with others  and that in  that in almost all cases the liability will only be on the basis of something like a civil wrong which is  committed by the carrier. Learned counsel relied in on  this connection on London and North Western Rly. Co. V. Richard Hudson and Sons Ltd., 1920 AC 324 where Lord Dunedin, dealing with the liability of common carrier carrying goods.

The action in that case was brought at the instance of the consignee of the goods, between whom and the carrier there was no privity of contract; it was held that the former could sustain a claim for loss of goods during transit on the basis of a tort. That decision itself recognises that there could be a liability of the carrier for breach of contract in appropriate cases. The decision in Shiam Narain Tickoo v. Bombay Baroda and Central India Rly., ILR 41 All 488 was next relied on. That was an action against a railway company for the damages laid by the husband for the death of his wife on account of injuries sustained by her in an accident to the train wherein she traveled. The learned Judges did not decide the question whether an action for breach of contract would lie where the railway did not carry the passenger safely. Their view was that an action on contract would not lie at he instance of the plaintiff in that case who was not a party to the contract and whose claim was based on tort and under the provisions of the Fatal Accidents Act.

JUDGEMENT OF THE CASE

Apart from danger arisingand  say, from the nature of goods that the defendant received, the carrier is by his office bound to transport the goods as clearly as if there had been a ‘special contract which is binding on  him, and therefore he is answerable to the owner for sale and also for sound delivery.

It is therefore clear that the liability of a common carrier for nondelivery of goods so far as a party to the contract is concerned it can be  at his option be that he rested on contract or not. Whether in such a case the claim is made on one basis or other it would depend on the construction of the plaint and also the substance of it being the decisive factor. In the present case the plaintiff is clear as the reference is made to the contract and of the carriage of goods not merely as a matter of history but as the starting point of the appellant’s obligations and the appellant did what a man with prudence would do .It is stated that by the terms of his employmen that  the appellant was legally bound to deliver safely the goods. The claim made for breach of that obligation is one on the basis of the contract and not on the basis of a tort. Thus there being a contractual obligation to deliver the goods at Coimbatore, a part of the cause of action for the suit arose at that place. The lower court had therefore the jurisdiction to entertain the suit and pass a judgement

The appeal is therefore failed and it is dismissed with costs

CONCLUSION

In this case the appeal was not successful because the defendant has taken reasonable care than any man with prudence would do and it was judged he was not negligent and he even tried to save as many good as possible by causing harm to himself.even though the contract was broken the defendant is not liable to pay any money to the appellant.