PARSRAM PARUMAL DABRAI Vs. AIR-INDIA LIMITED

JUDGEMENT

(1.) ON November 17, 1947, a representative of one Parsram Parumal Dabrai (hereinafter referred to as the plaintiff) delivered at Karachi a parcel containing gold of the value of Rs. 1,80,000 to the Air India, Limited, (hereinafter referred to as the defendants) for carriage by their air service to Bombay. The parcel was accepted by the defendants, and on payment of Us. 164 -8 -0 as freight charges, the defendants made out a consignment note (exh. A) in favour of the plaintiff. The parcel, however, could not be delivered by the defendants to the consignee at Bombay, as it was lost. The plaintiff filed this suit to recover the value of the parcel on the plea that the loss of the parcel of gold was due to failure on the part of the defendants to take such care as a person of ordinary prudence would under similar circumstances take of similar goods. In the plaint as originally filed, the claim was made on the allegation that the consignment note issued by the defendants and embodying the terms of the contract of carriage was an inland consignment note and the defendants as bailees were liable for negligence. At the trial the plaintiff applied for leave to amend the plaint by pleading that he was entitled to avail himself of the provisions of the Indian Carriage by Air Act, XX of 1934, and that the description of the consignment note as 'inland' was erroneous, and that the same should be struck out. The plaint was allowed to be amended accordingly.

(2.) THE defendants have denied their liability as bailees, and under the Indian Carriage by Air Act. They contended that under the terms of the consignment note the defendants were exempt from liability 'in case of loss or damage or pilferage or detention from any cause whatsoever (including negligence or default of pilots, agents, flying, ground or other staff or employees of the carrier or breach of statutory or other regulations) whether in the course of the journey or prior, or subsequent thereto, and whether while the freight be on board the aircraft or otherwise'. The defendants have also contended that they took such care of the parcel as persons of ordinary prudence would take of similar goods in similar circumstances, and that in any case, the plaintiff having recovered the full value of the parcel from the insurance company with which the parcel was insured, the plaintiffs were not entitled to proceed against the defendants. Finally, it was contended by the defendants that the provisions of the Indian Carriage by Air Act, XX of 1934, did not apply to the loss of the parcel and that even if those provisions applied, the loss of the consignment did not take place during carriage by air, and the suit was not maintainable as it was not filed in accordance with the provisions of that Act, and that the cause of action, if any, was extinguished as it was time -barred.

(3.) THE defendants had employed a night -watchman to keep watch on the office premises. The night -watchman used to patrol near the premises. At closing time two out of the three doors used to be locked from inside, and the third door of the office used to be locked from outside, and all the three keys of the three doors used to be handed over to the night -watchman. It appears that before the arrival of the Freight Superintendent in the morning the office used to be opened to enable sweepers and clerks to enter the premises. It is the defendants' case that a sweeper employed by them managed to obtain access to the office premises after the office was closed and the doors were locked when Antia left the office on November 18, 1947, and before he arrived at the office on the morning of November 19, 1947. That the entry of the sweeper into the office premises of the defendants must have been facilitated by reason of the keys of the doors being left with the night -watchman is a reasonable inference which could be made in the circumstances of the case. The storage of valuable parcels containing gold in a cage, which, as described by Antia, used to be closed by a hasp, may not be regarded as a very efficient protection against removal of parcels surreptitiously, if some one managed unauthorisedly to enter the office premises. In my view the arrangement made by the defendants for storing parcels containing valuable articles like gold received from out -stations cannot be regarded such as a person of ordinary prudence would make for storing similar valuable parcels. In failing to provide a safe or a strong room for storing parcels containing valuable goods which could not be opened as easily as the cage appears to have been opened by the use of a crowbar or a jemmy, and in leaving the keys in the possession of a night -watchman, the defendants must be open to a charge of not having taken as much care of the parcel as persons of ordinary prudence would in similar circumstances take of similar parcels.