1. The plaintiff sued for damages for loss of 112 muras of rice, which was entrusted for transport by the first defendant's lorry M.D.X 1860 from the southern bank at Thekkil ferry to the plaintiffs Aletti estate. It was loaded on March 24, 1953, and was driven by the second defendant that night. Transport of rice by night along the route being prohibited, the lorry and rice were both seized at the checking station, the second defendant was eventually convicted and the rice was confiscated. The plaintiff also sought to recover charges incurred by him in transporting by headload other rice which he purchased in replacement for use in his estate. Both the defendants denied their liability and contested the suit the Subordinate Judge decreed the suit against both, for the value of 112 muras of rice and interest thereon and disallowed the rest of the claim. The first defendant has preferred this appeal and the plaintiffs has preferred a memorandum of objections against the decree. The basis of this judgment was stated thus by the Subordinate Judge:

“The 1st defendant is liable as a common carrier for breach of the statutory duty which is absolute, and the 2nd defendant, as the servant of the first defendant, is equally liable along with him.”

2. Evidently the Subordinate Judge had in mind Section 8 of the Carriers Act, 1865 which reads:

“Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of S. 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants”.

3. When the appeal came on for hearing for the first time, it was complained that the first defendant was misled, as the basis of the claim as under S. 8 aforesaid had not been set out in the plaint. In consequence, an issue was remitted as to whether the defendants had committed any criminal act, or are guilty of negligence within the meaning of the section. Incidentally another issue was also remitted as to whether the plaintiff or his servants induced or caused the second defendant to transport rice during night and whether therefore the plaintiff was precluded from enforcing the liability under S. 8. The Subordinate Judge has now found in substance, that the second defendant had committed a criminal act by transporting rice by night in spite of the prohibition against it, that the first defendant had been negligent in not instructing the Second defendant as to such prohibition, and that the plaintiff's servant Ukkas induced or caused the second defendant to transport the rice by night, but that the plaintiff is not precluded from enforcing the liability against the defendants.

4. As found by the Subordinate Judge already, the first defendant was a common carrier as defined in the Act, the rice was loaded in the lorry, and transport was made on the night of the 24th in contravention of the Collector's notification, which was in pursuance of a notification of the Governor of Madras made in 1952 under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and which had the force of law. It was not disputed that a contravention of the notification was punishable, and that the second defendant was convicted and sentenced by Exit. A-2 judgment. Section 9 of the Carriers Act is important and it reads:

“In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents”.

5. The Subordinate Judge who disposed of the suit, as well as the Judge who has now returned the findings, have not adverted to S. 9. Section 6 of the Act provides that carriers with certain exceptions may limit their liability for loss or damage to property carried by special contract, and S. 7 deals with the liability of the owner of any railroad or tramroad constructed under the provisions of Act 22 of 1863. The non-obstante clause in Section 8 extracted above shows, that whatever be the other provisions in the Act, whenever loss or damage is occasioned by the criminal act of the carrier or any of his agents or servants, the owner is entitled to recover, and by S. 9 the owner need only prove loss or damage or non-delivery of goods entrusted for carriage, it being for the carrier to prove, that no criminal act was committed by him or his agent or his servants, or that he or any of them was not negligent. In returning the findings the Subordinate Judge has relied upon Ext. A-2 judgment for holding that the second defendant had committed a criminal act it was complained, that Ext. A-2 is no evidence of the commission of a criminal act even as against the second defendant, much less against the first defendant. Prima facie the contravention of the prohibition against night transport of rice being an offence, the second defendant was guilty of having committed a criminal act. It is unnecessary to pursue this line of reasoning, as the defendants have led no evidence in terms of S. 9 to discharge their onus. So far as the plaintiff is concerned, this may be deemed to be sufficient.

6. Though the pleadings did not lend support to it, the first defendant when examined as a witness attempted to make out a new case, that the lorry was placed at the disposal of the plaintiff for the transport of rice on the particular occasion and this evidence was availed of to found an argument before the Subordinate Judge, though no issue covering it had been remitted to him, that the plaintiff must solely bear the responsibility for the loss; the argument was rightly repelled. In this Court it was argued, that the case in the plaint, of entrustment with the first defendant personally not being established, it must be deemed that there had really been no delivery to a common carrier as such. The argument has only to be repelled. It has been clearly alleged in paragraph 4 of the plaint, that the entrustment was for conveyance by “the lorry of the first defendant kept on the southern side of the ferry as a public carrier” of which the second defendant was a driver, and that the permit was handed over to the defendants, and in paragraph 5, that “112 muras were thus entrusted to the 1st defendant” and that the defendants conveyed the same by night. In the written statement the first defendant admitted, that he is the owner of the lorry, that “it is a public carrier”, that it was kept on the southern bank, and that the second defendant was in charge of it and he said that.

“the taking of goods for transport and the collection of the hire for the same is done by him and he accounts to this defendant now and then”; he denied the entrustment to him personally. The second defendant in his written statement said that “after loading, the ordinary fare was fixed up in the usual course of business” that the plaintiffs servant gave no other direction to him except “that the load should be taken to the plaintiff's estate” and that the “lorry was driven in the usual manner”. In this state of the pleadings the conclusion is irresistible that the parties were agreed, that the first defendant was a common carrier, that the lorry was on the southern side of the river and that the second defendant, acting in the ordinary course of his employment accepted the consignment for transport but they were not agreed, that the first defendant was present at the time of the entrustment or that the permit was handed over to both. This part of the allegation in the plaint alone has not been substantiated; but from this, it is not open to the first defendant to contend that there has been no entrustment or delivery to the 2nd defendant acting in the course of his employment as the employee and driver of his master, the common carrier. At no time was it pleaded nor has it been proved, that the custody of the goods even after: loading remained with the plaintiff. All that the learned counsel could point to was, that the plaintiffs man Ukkas and two or three workmen also travelled in the lorry. The second defendant who mentioned this, said that the lorry had to be unloaded on the way for crossing a weak bridge and so the workmen also came. The fact that the plaintiffs man also travelled in the lorry is no indication that the goods were in his custody. Both on the pleadings and the evidence, the contention that there was no delivery or entrustment to the first defendant as a common carrier cannot be sustained.

7. The only other ground on which the first defendant's liability was disputed at the final hearing was, that Ukkas had induced the second defendant to transport the rice by night. The defendants have not discharged their burden under S. 9 of the Act, of proving that no criminal act was committed. Prima facie the second defendant had committed one. However that be, mere proof of inducement does not negative the commission of a criminal act, though probably it may have a bearing on the question of negligence. A criminal act does not cease to be so because the commission of the act was abetted by another. If so, the conditions for the operation of S. 8 are fulfilled. From the factual point of view it may be said, that if Ukkas really offered an inducement, the responsibility was of 2nd defendant as the employee of the common carrier and in charge of the vehicle, to refuse to commit the criminal act. The theory of inducement by Ukkas and the theory that the second defendant has no knowledge of the prohibition against night transport appear to go ill together. It is not in evidence either, that the plaintiff wanted or authorised Ukkas to see to transport by night; the probabilities are that he would not have risked the loss of rice. It may be added, that this case of inducement had no foundation in the pleadings and the second defendant's written statement even seemed to point to the contrary. However the issue was remitted and a finding has been recorded, but the inducement even if true affords no defence. My attention was invited to the fourth “excepted peril” in the common law of England relating to common carriers which is stated thus in paragraph 385 at page 143 of Halsbury's Laws of England, Volume 4, 3rd Edition:

“A common carrier is not liable for any loss or injury caused by the act or omission of the consignor himself, or by the act of a third party brought about by the consignor, unless the carrier has been guilty of negligence,……”

8. Two of the cases relied on in support of this statement are Bradley v. Water-house, (1828) 172 BR 438, and Talley v. Great Western Railway Co., (1870) 6 CP 44. In the former, the consignor sent two hundred sovereigns concealed in tea cases which were robbed during transit the question for decision was posed, as whether it was a case of gross negligence on the part of the defendants, or whether the loss was brought on by the plaintiffs own conduct in sending valuable articles under such a slight disguise. In the latter case, the article was placed in the very railway carriage in which the owner was travelling, and was lost through his negligence. In the circumstances, the contract of the company was held subject to the implied condition that the passenger took ordinary care of his property. Where negligence is the foundation of legal liability, circumstances such as these may have a bearing on the decision of the issue itself. However, as observed by the Privy Council in India General Navigation and Railway Co. Ltd. v. Dekhari Tea Co., AIR 1924 PC 40, though in a different context, where the point for decision arises under the Indian Law, references to the English Law of Carriers is not very necessary. I come to the conclusion, that the first defendant has not succeeded in proving that the loss or damage was not incurred as a result of the commission of a criminal act by the second defendant. The decree in favour of the plaintiff is affirmed. The memorandum of objections has claimed additional amounts, but they are too remote. The objections have no merit and are dismissed without costs. The appeal is dismissed with costs.

BG/D.V.C

9. Appeal and cross objections dismissal.