INDIAN AIRLINES CORPORATION Vs. JOTHAJI MANIRAM

JUDGEMENT

(1.) THE respondent a merchant at Madras sent on 9-3-1955 a parcel of pen nibs valued at Rs. 1600 to Calcutta through the Indian Airlines Corporation, the petitioner. Before accepting the goods for carriage, the petitioner issued a consignment note, Ex. P. 1. It sets out the terms and conditions of the carriage. In the front portion of Ex. P. 1 the agent of the respondent, who despatched the goods, signed a statement stating that he was aware of and was accepting the general conditions of carnage and special conditions, more particularly referred to or set out on the reverse of that document. One of the special conditions, which is legibly printed on the reverse of the consignment note was that the carrier, namely, the petitioner,

(2.) TWO questions were argued before me in the revision petition by the learned advocate appearing on either side. The first was whether the terms and conditions limiting liability of the carrier were brought to the knowledge of the consignor, so that he can be held to be bound by them. The second was whether the carrier was liable to pay the entire damage claimed, notwithstanding the limitation of the liability contained in the consignment note. On the first question, the learned Judges who heard the new trial application held that what the petitioner did was not reasonably sufficient to make the contents of ex. P. 1 known to the consignor. Prima facie the question involves a finding of fact, which the Judges constituting the Full Bench on the terms of Section 38 of the madras Presidency Small Cause Courts Act are not competent to give. But even apart from that question, I am of opinion that the conclusion arrived at by the learned Judges is incorrect. It is well known that, under general law a common carrier is liable practically as an insurer of the goods. That liability can be regulated by a contract entered into between the parties. It isi comparatively rare to find any common carrier to convey goods under such liability, as it is invariably the practice for common carriers to enter into a contract, defining and limiting their liability. That practice is so universal that in the normal course of things one would expect any consignor of goods to look into such conditions which arc found in consignment notes. To say that in every case the carrier should prove that he drew the attention of the consignor to the clause in the consignment note regarding limitation of its liability is extending the rule beyond its limits. It is, however, unnecessary to pursue this point, a? I am of opinion that under the law where a consignor or his agent has signed a declaration and expressly agreed to all the conditions in the consignment note, the burden would be upon| him to show that his signature was secured by fraud or misrepresentation or that he had no notice of the conditions. As stated already, the consignment note, which contained on its reverse the terms and conditions of the carriage of goods, was signed by the agent of the respondent stating that he expressly agreed to the special conditions contained in that document. In Luddit v. Ginger Coote Airways, 1947 AC 233, a similar question arose. In that case an action was laid for damages for injuries caused to the passengers by the negligence of the carrier's servants in an aircraft. In the ticket issued to the passengers conditions limiting the liability of the carrier were printed. The question arose whether the passenger would be bound by ihe limitation of liability of the carrier contained in the tickets. The Privy Council proceeded on the footing that as the passengers had signed the tickets it was for them to show that they had not sufficient notice of the conditions.

(3.) A contract of the carriage is generally accompanied by a ticket or consignment note embodying the terms and conditions on which the carrier is willing to convey the passengers or the goods. A passenger, accepting the document, very often docs not care to read the conditions printed on the ticket or consignment note which are often found in small print. In such a case where a party denies that he was aware of the conditions of the contract of carriage, it would be for the carrier to establish that the party knew that the document contained the conditions or that he did his duty of calling his attention to it. But in a case where the signature of a party is taken to the contract itself, the matter should stand on a different footing. The party who expressly contracts stating that he is aware of the terms and conditions, should not be allowed to say that he was not aware of the terms and conditions unless he proved that he was not so aware. This distinction between a case where a party was simply given a consignment note wherein the conditions of the carriage were endorsed and a case where he signed the consignment note agreeing to the conations, has been referred to in Shawcross and Beaumont on Air Law (2nd Edn.) In Art. 350 the learned authors say this :