1 Liability of Carrier Under the Carriers Act, 1865 Introduction
In todays modern world transport is no longer a personal affair. Carriers cater to the needs of the general public for hire or reward. Almost no businessman or business enterprise can carry out its business effectively without utilizing the services of carriers. Carriers transport goods and are expected to carry them safely. Should there occur any damage to the goods, Carriers are held responsible responsi ble and are liable to pay compensa tion to the owner of the goods. In order to enforce the liability against the Carrier for damage to goods, one has to seek the help of law. Prior to the passing of the Carriers Act, 1865 there was no codified law governing such liability in India. The liability of the Carrier was determined under English Common Law as administered by the courts in India. Under English Common Law the carrier has strict liability with respect to goods entrusted to his care. The only exceptions to this strict liability as far as carriers are concerned are: a) Act of God- Unforeseen natural phenomena which cannot be prevented by any human agency. For example, a carrier will not be liable if goods are damaged owing to an earthquake. b) Act of Kings Enemies- Kings enemies refers to foreign enemies or foreign armed forces. The carrier cannot be held liable for damage to goods if such damage occurs owing to the acts of foreign armed forces. Dacoits, bandits, pirates on high seas and terrorist groups do not come within the meaning of Kings enemies. However English Common Law also provides for the Doctrine of Freedom of Contract by virtue of which parties are free to contract or agree upon whatever terms are mutually acceptable, subject to public policy. Thus by virtue of this Doctrine, carriers could contract themselves out of all liability including liability for their own negligence or misconduct and for the negligence or misconduct of their agents or servants. Carriers, being a very strong and organized group, used to dictate terms to the customers who were left with no remedy. Thus the Doctrine of Freedom of Contract practically nullified the concept of strict liability. In these circumstances a need for legislation to protect the interests of customers was felt. The result was the enactment of the Carriers Act, 1865. The Preamble of the Act states that the Carriers Act, 1865 is an enactment relating to the rights and liabilities of common carriers. Common Carrier is one who holds himself out as for hire to anyone willing to employ him. The basic characteristic of a common carrier is as follows:
Whenever a subject takes upon himself a public trust for the benefit of the rest of his fellow subjects he must serve all his fellow subjects equally without discrimination and if he does not do so then he is liable for action. It is important to note that the Carriers Act, 1865 applies only to carriage of goods by a common carrier and not to carriage of passengers. Moreover this Act applies to only Carriage by land and inland navigation. A reading of the Statement of Objects and Reasons of the Carriers Act, 1865 helps to draw the following inferences: The liability of a carrier should not be unlimited. The carrier may be able to limit his liability in certain cases by special contract. A contract to limit the Carriers liability should not provide protection to the carrier for loss or damage occasioned by the negligence or fraud committed by the carrier or his agents and servants. The rationale for holding the carrier liable for damage to goods is: Having entrusted his goods to the owner for carriage, the owner leaves the control and care of the goods to the carrier who may deal with them as he thinks fit so long as they remain in his custody. If the goods are lost or damaged when in the custody and control of the carrier, the owner suffers a loss without his own fault. The goods are handed over to the carrier with an expectation that he would deliver them at the destination in the same order and condition in which he took them from the owner at the place of departure. It is therefore, just and reasonable that the carrier should pay compensation for the loss or damage sustained in his custody unless such damage is owing to certain circumstances beyond his control.[6] The freight charged by the carrier is meager as compared to the value of the goods. Even the value of one small consignment may be more than the aggregate amount of freight for all the goods carried by him on any particular
2
trip. The question arises whether the carrier should be held liable for the full value for a small consideration. Under English Common Law the carrier was held liable as an insurer and his liability was absolute. He was strictly liable for loss or damage to goods unless the loss or damage was owing to act of God or act of Kings enemies. However the Doctrine of Freedom of Contract allowed the carrier to absolve himself of all liability, which again was unreasonable. Thus in order to strike a balance between the two extreme positions regarding the liability of the Carrier the Carriers Act, 1865 was enacted. The purpose of this Act is twofold. Firstly it enables the common carrier to limit his liability for loss or damage to goods delivered to him for carriage. Secondly, it declares that the common carrier shall be liable for loss or damage to goods occasioned by the negligence or criminal act of himself or his agents or servants and such liability cannot be excluded by any special contract. Whenever loss or damage to goods is proved, negligence on the part of the common carrier is presumed and the burden of proving that it was not due to the negligence or criminal acts of the carrier, his servants or agents, lies on the carrier Section 3: Liability of Carrier for goods mentioned in the schedule
The Carriers Act, 1865 mentions in its schedule certain types of property. Section 3 deals with liability for such property. Because the properties mentioned are of special value for example, gold and silver, the section requires the value or description to be given and provides that the carrier would not be liable beyond one hundred rupees unless the value was declared or description given. The consignor is required to declare such goods so that the carrier may be put on guard that he is running an additional risk by accepting such articles and he may take special care of the goods to save them from loss or damage and may not treat them as ordinary merchandise. The value and description of the scheduled goods should be declared in writing. A verbal declaration is not sufficient. If the description and value of the goods is given on the packages, it may not come to the notice of the carrier and may not be deemed proper declaration unless it is proved that the carrier had actual notice. However if such description and value is inserted in the goods receipt issued by the carrier he cannot deny it and the requirement of Section 3 will be deemed to have been complied with. The idea is that the description and value of the goods should come to the notice of the carrier to enable him to apply the appropriate tariff of freight and to take proper care of the goods of that description and value. A consignment may consist of both scheduled and non-scheduled goods. Even in such a case the scheduled goods must be expressly expressly declared. In River Steam Navigation Company Limited v. Jamunadas Ram Kumar the consignor declared the goods as stationery. The consignment contained other goods besides stationery and included silk handkerchiefs of value in excess of Rs. 100 and other gold and silver articles which fell within the schedule. Each class of such articles was of the value of less than Rs. 100. Two boxes of such goods were lost. The Court thus held that if no declaration is made, the carrier is not liable for the loss or damage to the scheduled goods, but if nonscheduled goods are lost or damaged, the value of such goods may be recovered. The Court also took up the contention that the consignor is guilty of fraud as he did not give the declaration in respect of the scheduled articles and that therefore the consignor is not entitled to get the price of the nonscheduled articles also as the court should refuse all relief where the transaction is vitiated by the fraud of the party seeking relief. The Court held that there is no foundation for this contention under English Law. When a package containing both scheduled and non-scheduled articles is lost, the value of the scheduled articles exceeding the statutory limit cannot be recovered. This is also the law in India in the case of carriers who are governed by the Carriers Act. When the liability of the goods has been declared the liability of the carrier is limited to the declared value even if the description of the goods given in the declaration is found to be wrong. As long as there is a declaration the carrier is not exonerated from his liability by misdescription of goods. However, if the exact nature of the goods is not known and owing to such misdescription, the goods sustain damage, the carrier should not be held liable. For example if goods of perishable nature are not declared as such, and because of their misdescription the carrier does not store them in an air conditioned wagon or under conditions which would protect them from decay, the loss having been caused due to the consignors fault, should be borne by him and not by the carrier.[10] In Indian General Navigation and Railway Company Private Limited v. Gopal Chandra Guinsix packages of matka silk thread were made over to the carrier as undeclared luggage. The steamer had gone only about two and a half miles
3 that it caught fire and the goods were lost. The company resisted the claim on the ground that the nature and value of the goods, being scheduled articles, were concealed from the company, and also higher charges were not paid on them. The court held that Section 3 is subject to the declaration in Section 9 which holds the carrier liable where the loss is due to his negligence. The loss in this case being due to the carriers negligence, he was held liable. Had the matka silk thread been lost otherwise than through the negligence of the company, they would not have been liable for the loss, as the value and description of the property had not been declared as provided by Section 3 and as there was no payment of a special rate as provided by Section 4. But as the property was lost owing to the negligence of the company, the Court was of opinion that they are liable for the loss, although the value and description of the property were not declared and a higher charge was not paid for them andthat in such a case Sections 3 and 4 of the Carriers Act, 1865 do not afford any protection to the carrier. Section 4: Extra Charges
Section 4 is supplementary to the provision in Section 3. A carrier who is required to carry goods of the nature mentioned in the schedule to the Act and of value exceeding one hundred rupees undertakes a higher risk. In order to compensate himself for this extra risk he can charge a higher freight for carriage of such goods. He is free to fix the rate for the carriage of such goods as he pleases and no limit has been prescribed by law. The proviso to Section 4 provides that the higher rate of charge must be exhibited in the place of business of the common carrier where the goods are received for carriage to serve as public notice of such higher charges to all consignors. It should be conspicuously displayed so as to bring it to the notice of every consignor. Having displayed the rates, the carrier should apply only the exhibited rate of freight for the particular type of good for which it has been fixed, to all consignors alike without discrimination, and cannot charge anything more than what has been so exhibited, from any consignor. Sections 3 and 4 would not be attracted where the goods in question do not come within the schedule. In a case before the Andhra Pradesh High Court, the question was whether Leno was within the schedule. The only clause to which it came near states: clothes and tissues embroidered with the precious metals or of which such metals form part. The court held that Leno which according to the Concise Oxford Dictionary means kind of cotton gaung for caps, veils, curtains etc. could not by any stretch of imagination be brought within the ambit of this item. Where a person makes a declaration of the nature and value of the article tendered for carriage, but the carrier does not demand higher payment, the carrier is liable for the loss of or damage to the articles although the higher payment is not made. Section 5: Recovery of Charges
If the value and nature of the goods have been declared as required by Section 3 and the carrier has levied special charges in accordance with Section 4, the consignor will be entitled to recover in case of loss such goods, not merely the value of the goods, but also the charges paid by him in respect of the special risk under Section 5 of the Carriers Act, 1865. In order to entitle a person to recover the value of and the freight paid on the property of the value exceeding one hundr ed rupees and of the description description as given in the schedule two conditions conditio ns must be fulfilled. They are: Consignor should have declared the value and description of the property handed over to the carrier. Consignor should have paid the amount of extra freight applicable to such propertyas per the Carriers tariff to cover the additional risk. It was held in D.P Narasa Reddy v. Ellisetti that recovery under Section 5 is allowed to the person on whose behalf the goods were booked book ed and not to the agent or the forwarding forwa rding carrier unless he booked booked on this own account. No declaration has ha s to be made by the consignor in respect of non-scheduled non-scheduled goods and the carrier cannot demand a higher rate of freight for the carriage of such goods. He is liable for the loss or damage to such goods even though they are carried at the ordinary rate of freight. Having regard to the value of these goods, the carriers liability in case of loss or damage shall be determined by the courts. The Act does not expressly provide that the freight paid thereon may be recovered or provide any limit to the liability of the carrier. In determining the quantum of damages, what may or may not be included depends upon the facts and circumstances of each case. Section 6: Liability of Carrier for Non-scheduled goods and Limitation of Liability by Special Contract
4 Under Section 6 liability for the loss of goods not falling within the schedule cannot be limited by public notice but can be limited by special contract made with each consignor. The clauses of the contract by which liability is limited must be brought to the notice of the other party. In Indian Airlines Corporation v. Jothaji the consignors agent signed the consignment note which carried conditions overleaf limiting liability for loss to Rs. 300 only. The goods having been lost, the consignor contended that neither he nor his agent had knowledge of the clause. In the Judgment Justice Iyer stated: It is comparatively rare to find any common carrier to convey goods under such liability (absolute liability) as it is invariably the practice with common carrier to enter into a contract, defining and limiting their liability. That practice is also universal that in the normal course of things one would expect any consignor of goods to look into such conditions which are 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 is extending the rule beyond its limits. Justice Iyer thus on the basis of this reasoning held the contract valid and enforceable. Limiting clauses are strictly construed and against the party who inserted them. One of the protections is contained in the section itself which requires that the contract containing such clauses should be signed by the owner of the property or by his duly authorized agent. Oral stipulations will not be sufficient. Thus where, in a case before the Rajasthan High Court[17], the carrier pointed out to one of those attending loading loa ding of cotton on a gas plant p lant truck that it was exceptionally risky ri sky and he agreed agreed to take it, the carrier was nevertheless held liable when the gas plant materialized the risk by putting the truck with its load of cotton on fire. It was held in Eswara Iyer and Sons v. Madras Bangalore Transport Company[18] that exceptions to the general liability of a carrier must be construed strictly and hence the term misdelivery should, if used in an exception clause, be held to cover no more than accidental misdelivery by mistake or error and not deliberate misdelivery. A common carrier is not a mere bailee of goods entrusted to him. He is an insurer of goods. He is answerable for the loss of goods even when such loss is caused not by either negligence or want of care on his part, act of God and of Kings enemies excepted. This arises because of the responsibility attached to the public nature of the business carried on by him. He hold out as a person who has the expertise and the facilities to conduct the business of transport; tran sport; consequentl y he is treated as an insurer of o f the goods and is a nswerable for its loss. This Th is concept as to the liability of a common carrier has been applied in India uniformly. The extent of liability under a bailee under sections 151 and 15 2 of the Indian Contract Act, 187 2 is different from the extent of liability of a common carrier. A bailee is only bound to take proper care of the goods and for loss beyond his control he is not answerable. But the provisions of the Indian Contract Act do not govern the liability of a common carrier nor do they override the provisions of the Carriers Act, 1865. The criminal activities of the unruly mob which robbed the goods transported in the defendants lorry cannot certainly be an act of God so as to absolve the defendant from the rule of absolute liability as a common carrier. Hence the defendant will be answerable for the loss of the goods. In India General Navigation and Railway Company Limited v. Dekhari Tea Company Private Limited the plaintiff was sending a consignment of tea from Bordubi Road Assam to Gauhati by rail. The carrier carrier was India General Navigation and Railway Company Limited. During the journey the railway broke down and thus the goods were put aboard a Steamship Companys flat for carriage by river. On board the vessel, fire broke out and destroyed the goods. Holding the Steamship Company liable as a common carrier, the Court said that under Section 6, in order to get an exemption from liability by making a special contract, the nature of contract entered into must either have the limitation of the liability under the Carriers Act made expressly and in writing or the facts must be such that for the contract in question the contractor was departing from his usual business and engaging in a different type of business from that of a common carrier. It was held in Muralidhar Mohanlal v. River Steam Navigation Company Limited that where the steamer carrying the plaintiffs goods had to face a peril of navigation in the course of its voyage, and the respondents and his agents and servants in charge of the steamer had taken all reasonable care and exercised all necessary diligence and employed all skill in avoiding the navigation peril , and that, in spite of all that care, skill and diligence exercised by them, the ship sustained damage and and sprang two holes in the hull with the consequential damage to the goods of the plaintiffs it was held that Section 6 of the Carriers Act will be attracted and the carrier will be held liable for the damages. In Hussainbhai Mulla Fida Hussain v. Motilal Nathulal the court observed that the liability of common carriers under common law and the Carriers Act, 1865 is not affected affected by the provisions of the Indian Contract Act, 187 2. By law common carriers are liable as insurers of goods and they are responsible for any injury caused to the the goods. No proof of negligence is needed in such a case and the defendant has to establish the exception.
5 In the case of continuous carriers when goods have to be carried with the aid of differenttransport agencies in order to arrive at the destination, the carrier with whom the contract is made at one end is, in the absence of any contract limiting his liability to his own transport system held liable for the loss or destruction of the goods on portions beyond his own system or in consequence of acts or default of persons other than his own servants. In Dekhari Tea Company v. Assam Bengal Railway Company[ 24] a railway company entered intoa contract with a firm for the carriage of certain goods to a port and thence to England. Owing to a breach on the railway line, arrangements were made to transport goods in steamers underan agreement with a steamship company. However, the goods were destroyed while they wee in a vessel of the steamship company. In a suit for loss, the steamship company was held liable as a common carrier for the loss incurred by the firm even though there was no contract between it and the firm. ·
Sections 7, 8 And 9 Of The
Carriers Act, 1865- A Study Section 7
Section 7 as originally framed applied to railroad and tram road companies constructed under Act XXII of 1863 which provided for the acquisition of land for the construction of works by such companies. As the purpose for which these companies were provided with public land by acquisition under that Act was considered to be a public purpose, it was reasonable that they should carry out their duty to serve the public with greater responsibility. The section thus imposed a higher responsibility on such companies which could not be excluded or limited byany special contract under Section 6 of the Carriers Act, 1865. The liability of a tram road company for loss of or damage to goods of the description contained in the schedule in respect of which declaration has been made under Section 3, is notaffected by Section 7 and the provisions of Sections3, 4, 5 and 8 apply to the carriage of such goods by them. However their liability in respect of non-scheduled goods is no longer as an insurer of goods and they become liable for loss or damage to non-scheduled goods only if such loss or damage arises from their negligence or criminal act or the negligence or criminal act of any of their agents and servants. They cannot limit their liability by a special contract. Even in the absence of Section 7 the common carrier could not avoid his liability by special contract for any loss or damage to goods except scheduled goods for which no declaration hadbeen made, if such loss or damage arose from negligence or criminal act of the carrier or any of his agents or servants. The only effect of Section 7 is that a tram road company shall remain liable for loss or damage to scheduled goods caused by negligence or criminal acts of the agents and servants of the company even when no declaration has been made under section 3and for nonscheduled goods they are not liable in the absence of any negligence or criminal acts on their part or on the part of their servants and agents. Another effect of Section 7 is that in order to hold the tram road company liable for loss or damage to goods the plaintiff shall have to allege negligence or criminal act of the carrier or his agents and servants in the carriage of goods and, as such, the burden of proving negligence orcriminal acts shall be on the plaintiff. Section 8 Section 8 makes the carrier absolutely liable for the loss of or damage to the goods delivered to him for carriage
if such loss or damage arises from negligence or criminal act of the carrier or his agents and servants. This section gives effect to the common law liability of a carrier as insurer of goods handed over to him for carriage. Section 8 contains a non-obstante provision. It starts with the word notwithstanding which shows that it overrides the provisions of the previous sections. It is an exception to the earlier sections especially Sections 3 and 6.In Hindustan Corporation (Hyderabad) Private Limited v.United India Fire and General Insurance Company Limited[ 29] the court held that in view of the non-obstante clause with which Section 8 begins, there can be no special contract limiting the statutory liability under Section 8. The statutory liability under Section 8 cannot be contractedout by the common carrier though in respect of other liabilities as insurer he can contract out under Section 6 of the Act.
6 Any term, condition, clause or stipulation in the contract of carriage which seeks to exclude or limit the liability of the common carrier for loss or damage to the goods handed over for carriage, arising from negligence or criminal act of the carrier or his agents or servants is void under Section 8. Where goods are transported by different transporting agencies but the contract for carryingthe goods is made with one of the agencies, the other agencies are the agents of the contractingagency which is always responsible for the goods during the whole distance. An agreement with the contracting agency to the effect that it will not be liable for any loss or damage after delivering the goods to another transporting agency is void as offending against Section 8 of the Carriers Act, 1865. In New India Assurance Company Limited v. Chinar Goods Carriers[3 2] it was held that once the loss/damage to or nondelivery of the booked goods is proved, presumption of negligence orcriminal act arises on the part of the carrier and it becomes the duty of the carrier to rebut that presumption under Section 9 of the Carriers Act, 1865. In Indian Airlines Corporation v. Jothaji Maniram[33] the Court declared that the Carriers Act, 1865 cannot apply to the case of carriage of goods by air, for the term common carrier is defined under Section 2 of the Act which does not include a carrier by air and therefore his liability cannot be founded on the basis of Section 8 of the Carriers Act, 1865. The Courts have interpreted Section 8 to include liability of carrier for losses arising from delay. If loss or damage occurs on account of delay in transit, the carrier shall be held liable to pay compensation to the consignor/consignee. Where a consignment of atta and suji reached the destination after a long delay in a deteriorated condition rendering them unfit for human consumption, the consignee was entitled to recover damages on account of the deterioration even if there was no special contract limiting the time within which the consignment should reach the destination and the consignee had not proved any negligence on the part of the carriers during the course of transit. The Court held that there was an obligation on the carrier to carry the goods safely and in the absence of any special contract the goods must be delivered within a reasonable time. Negligence was not to be proved by the consignee. The goods were not in their nature perishable and would not havedeteriorated if they had reached the destination within a reasonable period of time. Section 9: Burden of Proof
When the goods are not delivered at the destination, there is a presumption that they must havebeen lost due to the negligence or some other fault of the carrier. The consignor has to prove nothing except this that the goods have not been delivered at the destination. The burden lies upon the carrier to prove that there was no negligence or fault on his or his servants part. The loss of goods is an evidence of negligence, which the carrier will have to disprove. Thus the main essence of Section 9 is that the burden of proof is on the Carrier to show that there was no negligence or criminal act on his part or on the part of his servants and agents. The reason why in a case of loss, damage or non-delivery of goods the negligence of the carrier is presumed is that his liability is not founded on contract and he cannot escape liability by proving that he hadtaken care of the goods as a prudent man. Section 152 of the Contract Act, 1872 will not come to his help. Under Section 9 of the Carriers Act, 1865 the plaintiff has to make a prima facie case of loss, damage or non-delivery of goods delivered to the carrier for carriage. The carrier has to then show that such loss etc. did not occur owing to any negligence or criminal act of the carrier or his agents and servants. In case of a carriage of non-scheduled goods the common carrier may limit his liability for loss or damage to the goods by a special contract in writing signed by the owner of the goods or his authorized agent. However, such a special contract does not exonerate the carrier from liability for loss or damage to goods arising from negligence or criminal act of the carrier or his agents or servants. In order to take advantage of such special contracts the carrier must prove that loss or damage did not arise from any negligence or criminal act of the carrier or his agents or servants. In Road Transport Corporation v. Kirloskar Brothers Limited[38] it was held that in case of short delivery or nondelivery or damages caused thereof the plaintiff has only to prove the factum of loss. The burden of proving that such short delivery or non-delivery was not caused by their negligence or fraud is on the common carrier. The
7 presumption of negligence or fraud on the part of the defendant has to be rebutted by him and if that is not done satisfactorily, the suit has to be decreed. It was held in Prakash Road Lines Private Limited v. H.M.T Bearing Limited that under the Carriers Act, 1865 no distinction is possible in respect of the goods that are lost or damaged during the transit or while they were in the custody of the carrier (before delivery to the consignee) after the goods reached the destination. Under Section 9 the liability of the carrier to answer for the loss, damage or non-delivery is the same whether it occurred during the transit or after the goods have reached the destination and while they were kept in the godown of thecarrier. The carrier cannot escape his liability by merely contending that he entered into a contract with the consignor and that he is absolved from all liability for misdelivery or wrong delivery. It is the elementary duty of the carrier to enquire whenever a person presents the consignees note, whether he is the proper person or his authorized agent. Carrier should have taken steps to call upon him to identify if he is the proper person or they should have taken some measures or some device to prevent misdelivery or wrong delivery. Carriers should be aware that as common carriers they are responsible for the safety of the goods entrusted to them and they should also deliver the goods to the right person and in this case they have not discharged their duties as a common carrier in delivering the goods to the alleged consignee. The main purpose of Section 9 is thus to absolve the consignor of establishing negligence or criminal act of the carrier or his servants or agents, once the goods are entrusted for carriage. Section 10 Of The Carriers Act, 1865
Section 10 of the Carriers Act, 1865 provides that in case of loss of or damage to goods entrusted to the carrier for carriage, notice of the loss or damage should be given in writing. No suit can be instituted against the carrier for compensation on the ground of loss of or damage to the goods unless notice under this section has been given within the prescribed period of six months. It is to be noted that Section 10 does not prescribe the period of limitation for filing the suit for compensation under the Act. It merely provides that a notice should be served on the carrier before a suit against him is instituted and such notice should be served on him within a period of six months from the date when loss of or damage to goods first comes to the knowledge of the plaintiff. The period of limitation for filing the suit against the carrier has been provided in Articles 10 and 11 of the Limitation Act, 1963. The limitation period for filing the suit is 3 years. In M.G M.G Brothers Lorry Service v. Prasad Textiles an agreement providing special period of limitation for notice prior to institution of suit was declared to violate the provisions of Section 10 and held void. Section 10 provides that notice should be given in writing. It does not provide for a particular form of notice. The notice should bring to the knowledge of the carrier the fact of such loss of or damage to goods although it may not contain a formal claim for the payment of the amount of compensation. The purpose of bringing the loss or damage to the notice of the carrier is that the person giving the notice intends to claim compensation for the loss or injury to his goods. It was held in Prakash Road Liners Private Limited v. Muthuswamy Grounders and Companythat: Where the carrier, after becoming aware of the loss, denies access to the consignor to see the goods for a period of more than six months and thereby the consignor is prevented from obtaining knowledge of the loss or injury to the goods, the carrier cannot claim the benefit of Section 10 as it will enable the carrier to take advantage of his own wrong to escape statutory liability. Where the cause of action arises on account of non-delivery or misdelivery, such cases fall in a class apart from the cases where there is loss of or injury to the goods entrusted to the carrier for carriage, and since reference to nondelivery has been made in Section 9 and deliberately omitted in Section 10, the requirement of giving notice under Section 10 is done away with in the cases where there is misdelivery or non-delivery. It is important to note that the requirement of giving notice under Section 10 of the Carriers Act, 1865 is not waived if the Carrier has knowledge of the loss or injury to goods entrusted to him for carriage. The requirement to give notice is a statutory requirement and must be complied with to make the carrier liable for the loss of or damage to goods and to enable the consignor to file a suit for compensation against him.
8 It was held in River Steam Navigation Company Limited v. Messrs Hazarimal Multanmal that notice under Section 10 of the Carriers Act, 1865 must be given and it is not enough to waive the requirement of such notice that the carrier had knowledge aliunde of the loss. The essential of a good notice under Section 10 of the Carriers Act, 1865 is that it should reach the person who is liable to make good the loss. Keeping this principle in mind it has been held that notice need not be always given to the Carrier directly. Notice given to the local agent of the Carrier is valid and sufficient under Section 10. Carriers Act, 1830- English Law
The Carriers Act, 1830 was passed with the primary object of protecting common carriers from the great risk which they ran under the common law in carrying parcels containing articles of great value in a small compass. With regard to such property, the carrier attempted to protect himself by posting up notices limiting his liability; but there was great difficulty in fixing consignors with knowledge of notices of this kind.
