Appeal No 401 of 1957
Appeal from the judgment and decree dated June 15 1954 of the Assam High Court in First Appeal No 23 of 1950
D N Mukherjee for the Appellants
B Sen P K Chatterjee and P K Bose for the Respondent
1961 May 5
DAS GUPTA J
This appeal is from the judgment and decree of the High Court of Judicature in Assam affirming the judgment and decree made by the Subordinate Judge of Upper Assam Districts in a suit brought by the respondent Shyamsundar Tea Co Ltd against the present appellants
The 804 appellant companies are joint owners of Steamer service between Dibrugrah and Calcutta
The main service is along the Brahmputra River
Desang is one of the tributaries of the Brahmputra and meets the main stream at Desangmukh Ghat
The plaintiff s case in the plaint was that the defendant companies as common carriers received goods at Dillibari Ghat which is situated on the Desang about 70 miles up stream from Desangmukh Ghat for carriage therefrom by boats to Desangmukh Ghat and then by their steamers to different stations on payment of freight
It is further the plaintiff case that on September 10 1946 the plaintiff company delivered 120 chests of tea to the defendants at Dillibari Ghat for carrying therefrom and delivery of the same at Kidderpore in Calcutta
The boat carrying these
tea chests sank the tea chests were lost and could not be salvaged
The accident was according to the plaintiff due to the negligence on the part of the defendant companies  agents and servants
On this ground of negligence as also on the ground that the companies as common carriers were liable to make good the loss whether or not there was negligence the plaintiff claimed the sum of Rs 16224 12 0 is compensation for the loss
The defendants raised a four fold defence
The first contention was that there was no delivery to the defendants at all at Dillibari Ghat and the defendants did not undertake any carriage of the goods from Dillibari Ghat
Secondly it was said that the sinking of the boat was not due to any negligence on the part of the defendants  servants
The third contention that the defendants were not a common carrier in respect of carriage of goods from Dillibari Ghat to Desang
Lastly it was pleaded that in any case the conditions of the Forwarding Note which was executed by the plaintiff company completely absolved the defendants from all liability
805 The trial Court held on a consideration of the evidence that the goods were delivered by the plaintiff to the defendants at Dillibari Ghat for carriage from there to Kidderpore Calcutta
It also held that the sinking of the boat was due to negligence on the part of the defendants  servants
Accordingly without coming to a clear conclusion whether the defendants were common carriers or not in respect of this contract of carriage the Trial Court gave the plaintiff a decree for the sum as claimed
On appeal the High Court of Assam affirmed this decree though not for quite the same reasons
The High Court agreed with the Trial Courts  conclusion
that there was delivery of the goods to the defendants by the plaintiff at Dillibari Ghat for carriage therefrom
On the question whether the sinking of the boat was due to the negligence of the defendants  servants the learned Judges of the High Court did not however accept the Trial Court s view
Their opinion it appears was that the plaintiff had not been able to establish the case of negligence on the part of the defendant s servants
The High Court however came to the conclusion that the defendants undertook this carriage from Dillibari Ghat in their capacity as common carriers and so the question whether there was negligence or not was irrelevant
The High Court also found that the terms and conditions of the Forwarding Note did not in any way absolve the defendants from liability
Accordingly the High Court affirmed the decree made by the Trial Court
It may be mentioned that though on both the points viz whether the delivery of the goods at Dillibari was to the defendants and whether the defendants were for such carrying from Dillibari common carrier one of the learned judges Ram Labhaya J appears to have been hesitant in coming to his conclusion but ultimately on both these points he agreed with the Chief Justice and 806 the agreed conclusions of both the learned judges were as we have mentioned above
The High Court gave a certificate under article 1331c of the Constitution and on that certificate the present appeal has been brought
On behalf of the appellants Mr Mukherjee has J tried to persuade us to examine the findings of the Courts below that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat
He tried to show that it was Meeneill and Company who used to run this boat service from Dillibari to Desangmukh and that the defendants had nothing to do with this business
Apart from the fact that such a case that Macneill and Company used to carry on an independent boat service business to Desangmukh was not made in the plaint we are satisfied that there is nothing that would justify us to depart from the well established practice of this Court not to interfere with eoncurrent findings of facts of the Trial Court and the first court of appeal
We may however indicate that having been taken through the evidence we have no hesitation in stating our agreement with that finding  viz that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat for carriage therefrom
We see no reason also to interfere with the High Court s findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants  agents
This brings us to the main question in controversy viz whether the appellants were common carriers of goods between Dillibari Ghat and Calcutta
The appellants admit that they are common carriers between Desangmukh Station and all other places on its steamer routes
They contend however that that does not make them common carrier between Dillibari Ghat or other places not in its steamer service route to any places on the steamer service route The respondent  secase on the other 807 hand is that once it is established that the defendants are common carriers within the meaning of the definition in the Carriers Act they must be held in law to be common carriers whenever they undertake carriage of goods unless with respect to the particular carriage they show definitely that they did not act as common carriers
The Carriers Act 1865 Act III of 1865 defines common carrier in these words  Common carrier  denotes a person other than the Government engaged in the business or transporting for hire property from place to place by land or inland navigation for all persons indiscriminately This definition is based on the English common law as regards the common carriers
The common law in England developed from quite early times to make the profession of common carriers a kind of public service  or as stated by Lord Holt in an early case a public trust
Vide Lane vs Cotton 1
It is where such a public trust has been undertaken as distinct from t mere private
contract that a carrier ceases to be a private carrier but becomes a public carrier or as English law calls a common carrier
 Explaining the distinction between a mere carrier and a common carrier Alderson B said in Ingate and Another vs Christis2 Everybody who undertakes to carry for anyone who asks him is a common carrier
The criterion is whether he carries for parti cular persons only or whether he carries for everyone
If a man holds himself out to do it for everyone who asks him he is a common carrier  but if he does not do it for everyone but carries for you and me only that is a matter of special contract 1 2  The question in any particular case whether the carrier was a common carrier or a private carrier has therefore to be decided on the ascertainment of what he publicly professes
This profession it need hardly be mentioned may be by public notice or by actual indiscriminate carrying of goods
It is also clear that the profession to carry goods indis criminately may be limited to particular goods or to particular routes or even is to two or more specified points
In Johnson vs Midland Rly Co3 the question arose whether the Railway Company were as common carriers bound to carry coal from Melton Mowbray to Oakham Parke B with whom Alderson B Rolfe B and Platt B agreed stated the law thus A person may profess to carry a particular description of goods only for instance cattle or dry goods in which case he could not be compelled to carry any other kind of goods or he may limit his obligation to carrying from one place to another as from Manchester to London and then he would not be bound to carry to or from intermediate places
 Turning to the facts of the case before him the learned Baron stated Now if the defendants stand in the situation of carriers at common law they are not liable because it does not appear in evidence that they ever had been a public profession by them that they would carry coals from Melton Mowbray to Oakham Ultimately the learned Judge recorded the conclusion thus I think that the circumstances of their having undertaken to be carriers does not 3   809 bind them to carry from or to each place on the line or every description of goods
 This is goods authority for the appellants  contention that the more fact that they are engaged in the transport of goods from certain places on their Steamer Service to other places does not necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a common carrier
It is therefore necessary to examine the nature of the public profession made by the appellants with regard to the carriage of goods from Dillibari Ghat
It is true as pointed out by the appellants  counsel that there is no public notice as there is in respect of places on the Steamer Service route with regard to carriage from Dillibari Ghat
It is legitimate however to consider in this connection the usual conduct of the appellant companies in connection with carriage from Dillibari Ghat and other surrounding circumstances
It has to be noticed that tea gardens which supply the bulk of the companies  cargo traffic for its despatch steamers find it convenient and economical to bring their goods to the nearest point on some river and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes
It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requests
Their own witness the Joint Agent at Dibrugarh has said in this connection We always try to give facilities to the interior tea gardens and to all customers whenever they require any help
 He has not said a single word as to requests of any customers for arrangements of carriage from Dillibari Ghat having been refused
Indeed when one remembers that it is by getting the custom from these interior tea gardens not all of which are situated on or  near the main stream of the 810 Brahmputra that the companies are able to get sufficient cargo for their steamers it was only natural that they would accept goods for carriage from places away from the main stream as indiscriminately as they do for carriage from stations on the main steamer route
The defendants  witness Mohammad Abdulla who is their Ghat Supervisor at Desangmukh has stated that the Steamer Company bears expenses of the clearance of the rivers to make them navigable
 Such conduct is consistent only with the case that the companies are anxious to receive whatever cargo they get for carriage from places on the river Desang and other tributaries to stations on the main steamer route for further carriage on the steamer route
The service on these tributaries can therefore be reasonably described as a feeder service for the main route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these feeder routes also
Against all this Mr Mukherjee pressed for our consideration three circumstances i that the rate for carriage from Dillibari was not a fixed rate ii that there was no regular service but boats were supplied only on requisition and iii that the carriage was made without profit
Nothing turns on the third fact assuming that it has been established that carriage from Dillibari to Desangmukh is made without profit
If this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder service
The circumstance that there was no regular 811 service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately
Even if there was a regular service there might not be a profession to carry indiscriminately  whereas even if there was such a profession it would not necessarily happen that regular service should be maintained
If as the evidence appears to establish the companies were ready to supply boats whenever requested without picking and choosing that would be sufficient public profession to act as a common carrier
Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants  contention that they were not common carriers for the law does not require that a common carrier must have one and the same rate for all goods
The law was stated thus by Blackburn J in G W Ry
Co vs Sutton 4  There was nothing in the common law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate or even gratis
All that the law required was that he shouldnot charge any more than was reasonable The requirement of equality of charges as pointed out by Prof Otto Kahn Fre und in the law of Carriage by Inland Transport 3rd Edition at P 190 in so far as it existed was entirely the creation of statute while the common law regards inequality as nothing more than possible evidence of unreasonableness
 That there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from Dillibari
4 at
812 The next argument of Mr Mukherjee was almost an argument of despair
He points out that there was a Forwarding Note exhibit B executed by the plaintiff in respect of the journey from Desangmukh to Calcutta and there was a special contract there limiting the carriers  liability
If the appellants were really common carriers in respect of the carriage from Dillibari is it conceivable he asks that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh That however is a totally wrong approach to the problem
A common carrier may restrict his liability by special contract But the absence of a special contract cannot show that he is not a common carrier
The fact that the appellants did nottake care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevant
On a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their
conduct even if not by any public notice that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route
They were thus common carriers in respect of the carriage of the plaintiff s goods from Dillibari
A last contention was raised again on the Forwarding Note
It was urged
that in any case this should be interpreted as covering the carriage from Dillibari also
In terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta
By no method of construction of the document can it be extended to the journey  from Dillibari
All the contentions raised in the appeal therefore fail
The appeal is accordinly dismissed with costs
Appeal dismissed


Summary:
The question whether a carrier is a common carrier or not has to be decided on its public profession and such profession may be either by public notice or by conduct
It is immaterial if the carrying is limited to particular goods or particular routes or between specified points
Lane vs Cotton12 Mod 474 Ingate vs
Christis 1950 3 Car
and K 61 and Jhonson vs Midland Rly Co   referred to
803 Consequently where as in the instant case the steamer companies which were by public profession common carriers in the main stream and invariably agreed when requested to arranged for carriage of goods by boats from stations situated on its tributary to the steamer station accepting goods as indiscriminately as in the steamer service were sued for loss of goods in the tributary and the High Court while reversing the finding of the trial court as to the negligence of the companies affirmed its decree against them on the ground that they were common carriers
Held that the decision of the High Court was correct and must be affirmed
There could be no doubt that the service in the tributary was in the nature of a feeder service to the main route and the public profession made in respect of the latter attached to it
Held further that it was of no consequence that the feeder service yielded no profits
Nor was regularity or otherwise of the feeder service a relevant consideration
Law does not require that a common carrier must have fixed rate for carriage of all goods and the absence of such fixed rate in the feeder service was wholly immaterial