AMIN AND CO Vs. SOUTHERN ROADWAYS LTD

JUDGEMENT

(1.) The plaintiffs are the appellants. They are dealers in handloom goods. They have a branch at Kadayanallur. On 24-1-1975, the plaintiffs' branch at Kadayanallur despatched two bundles of handloom lungies valued at Rs. 10895-65 to the plaintiffs at Madras under their way bill the original of which has been marked as Ex B 1 in the case, through the defendants who are common carriers within the meaning of that term under the Carriers Act (III of 1865). The plaintiff's branch sent the original way bill to the plaintiffs by post on the same day of despatch of the goods. On the next day, namely, the 25th Jan. 1975, the branch office sent another letter to the plaintiffs with reference to other matters connected with the businesses, in which also they made a reference to the despatch of the two bales on the 24th. That letter was received by the plaintiffs on the 27th. On the ground that they have not received the original way bill sent on the 24th, the plaintiffs wrote to the Kadayanallur branch informing them of the non-receipt of the way bill and asking them to get a consent letter from the consignor and the carrier and send it to them to enable them to clear the parcel. As to when this letter, was written by the plaintiffs, there is no evidence. However, we find that on 3-2-1975, the plaintiffs received from the branch a consent letter of the consignor duly endorsed by the defendants' agent at Kadayanallur. Armed with this letter, they approached the defendants on the 3rd Feb. to take delivery of the consignment. The plaintiffs' clerk, who went to office of the defendants was informed that the parcel was taken delivery of on 27-1-1975 by producing the original way bill (Ex.B. 1) with an endorsement thereon purported to have been signed by the plaintiffs with a direction to deliver the parcel to the office boy and it was taken delivery of by a person named Babu claiming himself to be the person authorised to take delivery. Thereafter, disputing the rubber stamp and the authorisation given on behalf of the plaintiffs endorsed on the way bill, and also denying that the person who had taken delivery of the parcel is the office boy or the agent of the plaintiffs, the present suit was filed claiming recovery of the sum of Rs. 10895-65 P. being the value of the goods.

(2.) The defendants pleaded that the original way bill was produced for delivery of the goods, that it contained the rubber stamp of the plaintiffs and was duly endorsed with a request to deliver the bundle to the office boy. The person who produced the way bill claimed to be the person authorised under the endorsement. There was no reason for the defendants either to dispute the endorsement or the person who brought the way bill for taking delivery of the goods and therefore, they delivered the goods when the original way bill itself was produced. They further claimed that they were not guilty of any negligence or want of exercise of due care and caution and they also contended that they were not guilty of any fraud or collusion with any party in delivering the goods.

(3.) The parties proceeded on the basis that the goods were not delivered to the plaintiffs and therefore, it has to be presumed that the endorsement in the way bill was not that of the plaintiffs and that the person who took delivery was not authorised by the plaintiffs to take delivery of the goods. The question for consideration, therefore, is whether the defendants are liable to make good the loss to the plaintiffs or on any ground they can extricate themselves from the liability to make good the loss. As already stated, the defendants are common carriers whose rights and liabilities are governed by the provisions of the Carriers Act (III of 1865). The goods despatched are also not special goods referred to in S.3 of the Act. The carriers are therefore governed by the provisions of Ss.8 and 9 of the Act. S.8 provides as follows-