LexM. G. BROTHERS LORRY SERVICE versus PRASAD TEXTILES
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
)
M. G. l!ROTHERS LORRY SERVICE
. v.
PRASAD TEXTILES
April 28, 1983
[D. P. MADON AND SABYASACHI MUK!IAJUI, JJ.)
1027
Carriers Act, 1865-Ss. 6 and I0-1ndia.n Contract Act, 1872-S. 23-
Uabilit'y of common carrier for loss of or injury to goods-Liabili/y Can be limited
by co~raet made expressly and in writinf under s. 6 of Carriers Act-A condition
desiped to defeat provisions of s. 10 of Carriers Act is void in terms of s. 23 of
Contract Act.
The respondent entrusted a consignment of goods to the appellant on
May l, 1969 under a Way Bill for being transported from Guntur to
Vijayawada. As the appellant failed to deliver the goods at Vijayawada, the
respondent gave a notice of claim on June 20, 1969 and thereafter instituted
suits for recovery of damages from the appellant. The trial court held that
. the suit were barred by Condition-15 of the Way Bill which stipulatee that no
suit shall lie against the firm in respect of any consignment without a claim
made in writing in that behalf and prererred ·within 30 days from- the date of
booking or from the date of arrival at the destination by the party conce!ned.
TheJower appellate court cpnfirmed the dismissal of the suits but the second
appeal preferred by the respondent was allowed by the High Court which held
that if Condition.-14 of the Way Bill was given effect to, it would defeat the
provisions of s. 10 of the Carriers Act.
Dismbsing the appeals,
HELD : (a) Section JO of the Carriers Act, 1865 provides that unless
notice in writing of the loss or injury has been given to him before the inSti·
tution of the suit and \\jthin 6 months of time when the Joss or injury first
carile to the knowledge of plaintiff, no suit shall be instituted against a
common carrier. In the instant case, in order to sustain the suit, Condition.:.15
of the Way Bill makes it imperative on the party concerned to give notice
either within 30 days from the date of the bookiog or from the ,Pate of the
arrival of the goods at the destination. The date of arrival of the goods at
the destination may not be known to the party concerned for a long time. No
claim can be made without the loss of the goods and therefore 30 days from
the date of booking would become irrelevant unless loss .or damage occurs.
, Even in a case where the plaintiff was unaware of the arrival of the goods at
the dCstination or was unaware of the loss or damage, the plaintiff Would not
have ang right to institute a suit if no claim was ID0.;de arid could not have been
made within 30 days. Condition-15 of the Way Bill, therefore, was designed
to avoid the liability contemplated under s. 10 of the Carriers Act and that
too in a situation where the parties had not by express contract limited thei{
B
E
F
E
F
H
1028
(1983] 2 s.c.R.
liability as contemplated under s. 6 thereof. Condition-15 must therefore, be
held to be void in view of s. 23 of the Indian Contract Act because its object
was to defeat the provisions of s. JO of the Carriers Act, [1032 H, 1033 A·H]
Home Insurance Company of New York v. Vicloria-Molltreal Fire lnsuran~e
Co., [1907] Law Reports A.C. 59, referred to.
(b) The liability of a -common carrier can be limited by agreement as
provided under s. 6 of the Carriers Act but that must be limitation of the
liability. The nature of the contract entered into must either have the limiM
taiion of the liability under the Carriers Act made expressly and in writing
d
or the ~actfrs Il1ushit ~e such btha.t for thed contra~t i? qude~~n the contrfaclb ~was
-J..
epart1ng om
s usual us1ness an
engaging in a tLJerent type Q
us1ness
from that of common carrier. In the instant case it is clear from Condjtion-15
of the Way Bill that there was no limitation of liability expressed or intended
but what was provided was that no suit shall lie against the firm unless a
particular claim was made in a particular manner within a particular time.
Their was neither any ex.tinguishment of liability, nor contracting out oflia~i-
lity but what was provided was only, a special period of limitation, other than
,the one ins. 10 of the Carriers Act, for issue of notice. [1032 D-G]
The India General Navigation and Railway Co. Ltd. v. The Dekhari Tea
Company Ltd. and Ors., AIR 1924 P. C., 40 referred to.
(c) :J'he Contention that the Carriers Act was essentially enacteQ for
the Cenefit of the common carriers and therefore s.10 should not be conStrued
as precluding notice of a periodExcerpt shown. Read the full judgment & AI analysis in Lexace.