# The State of Madhya Prade•li v. Shri Moula. Bux and others

- **Citation:** [1962] 2 S.C.R. 802
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 40! of 1957
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-madhya-prade-li-v-shri-moula-bux-and-others-2296
- **Pages:** 11

## Headnote

Common . Carr~er-Steam11hip Companv carrying, goods
/,y
steamer in main stream-Feeder
aervice by boata in
tributary-Goods
lo•t in transit in ,uch service-Liability--
Company, if, a common carrier in the feeder aervice-Te•I
Carriers Act, 1865 (3 of 1865), s. 2.
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 partic;iiar goops or particular
routes or between specified points.
Lane v. Ootton12 Mod. 474; lngate v.Chriatia, (1950) 3
Car. and K. 61 andJhomon v. Midland Rly., Co. (1849) 4 Ex
367, referred to.
2 S.C.R.
SUPREME COURT REPORTS
803
Consequently, where, as in the instant case, the steam~r
companies, which were by public profession common carriers
in the main stream and invariably agreed, when requested,
to arrange for carriage of goods hy 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
comp mies, affirmed its decree against them on the ground
that they were cammon carriers.
Held, that the decision of the High Court was r.orrect
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.
He Id, 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
a fixed rate for carriage of all goods and the absence of such
a fixed rate in the feeder service was wholly immaterial.
CCTIL APPELLATE JURISDICTION: Civil Appeal
No. 40! of 1957.
Appeal from the judgment and decree dated
June 15, 195! 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. The Judgment of the Court was
delivered by.
DAS GUPTA, J.-This appeal is from .the jud~
ment and decree of the High Court of Judicature m
Assam affirming the judgment and decree. m~de ~y
the Subordinate Junge of Upper Assam D1strwts, m
a suit brought by the respondent Shyamsundar Tea
Co., Ltd., against the present
sppellants. The
1961
The River &tam
Na1•igaJtion Go.,
Ltd.
v.
Shyam Sundar
Tea Go., Ltd.
Das GuptaJ,
1961
Th< RiVer Stear11
... V rt1,iga,tinn Co.,
Utl.
v.
8h11am Sun11ar
J.'en Co., Ltd.
Da" Gupta.I.
804
SUPREME COURT REPORTS
[1962]
appellant companies are joint owners of Steamer
service between Dibrugrah and Calcutta. The main
servic« is along t.he Rrnhmputra River. Desang is
one of the tribut·1ri"R of th<' Bml11np11t.n1 and meets
the main stream at Dosangmukh Ghat. The
plaintiff's case in the plaint was that the <lefl"ndant
compm1i1's as common carriers receivPd goods at
Dillihari Ghat whicn is situated on tho Desang
about 70 miles up-stream from Desa11gmukh Ghat
for carriage "therefrom by boats to Desangmukh
Ghat r.nd then by their steamers to different stations on payment of freight". It iR further the
plaintiffs ca.~e that on September 10, 1946, the
plaintiff company deliYered 120 chests of tea to the
defendants at Dillibari Ghat for carrying therefrom
and delivery of the same at Kidderpore i11 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 t0 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. 16,224-12-0 as compe11snt.ion for the loss.
The defendants raised a

## Text

1961
The State of
Madhya Prade•li
v
Shri Moula. Bux
and others
M. H idayatuUali
J.
1961
M•y, 5.
802
SUPREME COURT REPORTS
[1962)
of India, does not apply to a Part C State, and
only the definition in cl. (b) of the section :ipplies
to this State, even though a Part C State. In
our opinion, therefore, the decision of the Judicial
Commissioner was correct.
Since no other point was urged in this
appeal, it must fail, and it is accordingly dismissed with costs. There is no need to pass any
order on C. M. P. No. 40 of 1960 by which the
respondents asked for amendment of the plaint
and addition of the Union Govermnent as a party.
The application shall be filed.
Appeal dismissed
THE RIVER STEAM NAVIGATION CO., LT.D
v.
SHYAM SUNDAR TEA CO., LTD.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO AND
K. c. DAS GUPTA, JJ.)
Common . Carr~er-Steam11hip Companv carrying, goods
/,y
steamer in main stream-Feeder
aervice by boata in
tributary-Goods
lo•t in transit in ,uch service-Liability--
Company, if, a common carrier in the feeder aervice-Te•I
Carriers Act, 1865 (3 of 1865), s. 2.
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 partic;iiar goops or particular
routes or between specified points.
Lane v. Ootton12 Mod. 474; lngate v.Chriatia, (1950) 3
Car. and K. 61 andJhomon v. Midland Rly., Co. (1849) 4 Ex
367, referred to.
2 S.C.R.
SUPREME COURT REPORTS
803
Consequently, where, as in the instant case, the steam~r
companies, which were by public profession common carriers
in the main stream and invariably agreed, when requested,
to arrange for carriage of goods hy 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
comp mies, affirmed its decree against them on the ground
that they were cammon carriers.
Held, that the decision of the High Court was r.orrect
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.
He Id, 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
a fixed rate for carriage of all goods and the absence of such
a fixed rate in the feeder service was wholly immaterial.
CCTIL APPELLATE JURISDICTION: Civil Appeal
No. 40! of 1957.
Appeal from the judgment and decree dated
June 15, 195! 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. The Judgment of the Court was
delivered by.
DAS GUPTA, J.-This appeal is from .the jud~
ment and decree of the High Court of Judicature m
Assam affirming the judgment and decree. m~de ~y
the Subordinate Junge of Upper Assam D1strwts, m
a suit brought by the respondent Shyamsundar Tea
Co., Ltd., against the present
sppellants. The
1961
The River &tam
Na1•igaJtion Go.,
Ltd.
v.
Shyam Sundar
Tea Go., Ltd.
Das GuptaJ,
1961
Th< RiVer Stear11
... V rt1,iga,tinn Co.,
Utl.
v.
8h11am Sun11ar
J.'en Co., Ltd.
Da" Gupta.I.
804
SUPREME COURT REPORTS
[1962]
appellant companies are joint owners of Steamer
service between Dibrugrah and Calcutta. The main
servic« is along t.he Rrnhmputra River. Desang is
one of the tribut·1ri"R of th<' Bml11np11t.n1 and meets
the main stream at Dosangmukh Ghat. The
plaintiff's case in the plaint was that the <lefl"ndant
compm1i1's as common carriers receivPd goods at
Dillihari Ghat whicn is situated on tho Desang
about 70 miles up-stream from Desa11gmukh Ghat
for carriage "therefrom by boats to Desangmukh
Ghat r.nd then by their steamers to different stations on payment of freight". It iR further the
plaintiffs ca.~e that on September 10, 1946, the
plaintiff company deliYered 120 chests of tea to the
defendants at Dillibari Ghat for carrying therefrom
and delivery of the same at Kidderpore i11 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 t0 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. 16,224-12-0 as compe11snt.ion for the loss.
The defendants raised a fonr-fold defence.
The first contention was that there was no delivNY
to the defendants at all at Dillibari Ghat and t lie
defendants did not undertake any carriage of the
goods from Dillibari Ghat. Secondly, it was said that
the sinking of tlw boat was not due to a11y negligence on the part of the dC'fcndants' servants. The
third contontion was that the defendants were 11ot.
a common ca1Tier in respect of carriage of goods
from Dillibari Ghat to Desang. Lastly it was pleaded that in any case the conditions of the Forwarding Noto which was executed by the plaintiff' company completely absolved the defendants from all
liability.
2 S.C.R.
SUPREME COUR'l' REPORTS
805
The trial Court held on a consideration of the
evidence that the goods were delivered by the
plaintiff to the rkfendants at Dillilmri Ghat for
carrirgo from there to Kidclerpore, Calcutta. It
also hold that the sinking of the boat w1s due to
nealiD"encc on the r)art of the defendants' servants.
o ,.,
1
1 .
Accordingly, without corning to a c car cone us10n
whether the defendants were common c1rriers 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, th<;mgh not for qnite 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' se~vants the learnC'd 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 li:tbility. 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
tl\ese points he agreed with the Chief Justice and
1961
The Riw· Steam
}{avigat-ion Co.~
Ltd.
v.
Shyam. Sundar
Tea Co., Ltd.
Das Gupta J.
1961
The River Steam
Navigation Ga.,
Ltd.
v.
Shyam 811ndar
Tea Go., Ltd,
Das Gupta .J.
806
SUPREME COURT REPORTS
[1962]
the agreed conclusions of both the learned judges
were, as we h3ve mentioned above.
The High Court gave a certificate under
Art. 133(l)(c) of the Constitution and on that certificate the present appeal has been brought.
On behalf of the appellants Mr. Mukherjee has
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 th3t it was Mecneill 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 !latisfied that there is nothing that would justify us to depart from the well established practice of
this Court n-0t to interfere with concurrent 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 qn~s
tion to the rlcfendants at Dillibari Ghat for carriage therefrom. W o see no reas~n 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.
'!'his 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
carrier:! 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
2 S.C.R. SUPREME COURT REPORTS
807
ha.nd, is tha.t once it is established that the defendants are common carriers within the meaning
of thfl definition in the Carriers AGt, they must be
held in law to be common carriers whenever they
nmfortake 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
of transpOl'ting for hire property from place
to place, by land or inland navigation, for all
persons in discriminate ly ."
This definition is based on the English common law as regards the common carriers. The
common hw if) England rleveloped from quite early
times to make tho profession of common carriers a
kind of public service ;· or as stated by J,ord Holt
in an early case "a public trust". (Vide Lane v.
Cotton) (1). It is where such apublie trust has been
undertaken as distinct from a mere private contract
that a carrkr ceases to he a private carrier but
bceomes a public carrier or aR EngliHh law ca.llR "a
common earrier."
Explaining
the distinction
between a mere carrier and a common carrier,
Alderson B, said in Ingate and Another v. Ohristis('):
"Everybody who undertakes to carry for
anyone who asks him, is a common carrier.
The nriterion is, whether he carries for particular persons only, or whether he carries for
everyone. If a man holds himself out to do
it for everyone who asks him, he ia a common
carrier ; but if he .. does not do it for everyone,
but carries for you and me only, that is a
matter of specinl contract."
(I) 12Mad.474.
(2) (1850) ~Car a. K. 61,
1961
The River Steam
Navigation Go.,
Ltd.
v.
Skyam Sumlar
Tea Go., Ltd.
Daa Gupta J.
1961
The River Steam
!{atifgatinn On.,
Jtd.
v.
Shyam Sundr!r
Tea Go., Ltd.,
--
Das Gupta J.
808
SUPREME OOURT REPORTS
(1962]
The question in any particular case whether
the carrier waR 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 aotual indiscriminate carrying of goods. It is
also clear th~t the profession to carry goods indiscriminately may be limited to particular goods or
to particular routes or even as to two or more
specified points. In Johnson v. Midland Rly., Co.(')
the question arose whether the R'lilway 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 ca.rry any other kind of
goods; or he may limit liis 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 tho facts of tho case before him
the lea.med Baron stated:
"Now, if the defendants stand in the
situation of carriers at common law, they arc
not liable, becau8e it does not appear in
evidence that they ever had been a. pnblic
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 oiroumstanoes of their
having undertaken to be carriers does not.
(S) (lSi-9) + E;a:. 367.

1961
The Rfoer Steam
N avigalio'fl, Ca.,
Ud.
v.
Sliyam Sundar
Te.a Co., Lt1!.
Das Gupta J.
810
SUPREME COURT REPORTS
[1962)
Brahmputza 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 aw<ty from the main stream as indiscriminately as they do for carriage from stati0ns on
the main st.earner route.
The defendants' witness Mohammad Abdulla
who is their Ghat Supervisor at Desangmukh has
stated that "the Steamer Company b{\ars expenses
of the clearance of the rivers to make them
navigable."
Such conduct is consistent only
with tho case that the companies are anxious
to receive whatever cargo they get for carriage
from places on the river Desang and other tributa1·ies 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 mP.in 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 wns 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
2 S.C.R. SUPREME COURT REPORTS
fill
service but boats were supplied only on requisition
is also wholly irrelevant for ascertaining whether
there was a public profe~sion to carry indiscriminately. Even if there was a regular service, there
might not be a profession to carry indiseriminately ;
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 estaLlish, the companies were ready to supply
boats whenrver Ieguested, without picking and
choosing, that would be sufficient public profession
to aot 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.
'fhe law was
stated thus by Blackburn J. in G. W. Ry. Oo., v.
Sutton ( 4):
"There was nothing in the common law
to hinder a carrier from carrying for favoured
individuals at an unreasonably low rate, or
nven gratis. All that the law required was,
that he should not charge any more than was
reasonable."
"The requirement of equality of charges", as
pointe<l out by Prof. Otto Kahn·l<'re-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
nequality as nothing more than possible evidence of
iunreasonableness."
That there was no fixed charge for carria<'e
from Dillibari cannot therefore be any reason to
think that the arpellants were not common carri·
ers in respect o carriage from Dillibari.
(4) (1869) L.R., 4 H.L. 226 at. 237.
1961
'11 h c River Stea1n,
j,Vaviyation G1o.,
Ltd.
v.
J::Jhyarn /S
1undur
'L'eu Gu., Ltd.
Dus Gupta J.
$1'2 . ,
.. - .. ,., ..
-,.
~. ' .. · ...... ·-,,-.-,-~~.~- --
SUPREME COURT REPORTS
, [i9~2j . .
. . The.next ~rg{iment of · l\Ir. . l\Iukherjee .was
The Riter Strom almost anargument of despair .. He points out that
1Yai:igatian Co., there was a" Forwarding Noto (Ex. B) executed· by
. Ltd.
tbe plaintiff in' respect cif the ·journey from. Des-.
1961
----
. ShyamvSurutar·· ,angmukh to' Calcutta and there was a special conTea Co., Ltd.
tract there limiting the carriers' liabliity. If the
appellants.were really common carriers in respect of
the carriage from Dillibari, is it conceivabfo, he asks,
that there· would not be a similar Forwarding Note
covering the carriage from .Dillibari ~o Desingmukh?
That however is a totally wrong approach· to the
problem: . A
common carrier may restrict his
liability by special contract.~ But tho_absence of a
special contract cannot show that -he- is -not a
commo~f carrier. · The .. fact that the: appellants did
not take care to ·make a special·: contract in' respect ·
of carriage from Dillibari is .therefore· wholly· irrelevant.
,
· ·
·
.
I
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 indis-
. criminately for all those who askfor 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 rais~d,' ~gain, .. ·· on
th~
:forwarding Note. - It was urged that in ariy case
·this should be interpreted as covering the carri-,
age from Dillibari also. ·In terms the Forwarding
Note was limited- to the 'contract of carriage. as
from De8angmukh to ·Calcutta. ·By no method of
construction of the document can it be extended to
the journey· from ,Dillibari.
All the contentiori&-raised in tho appeal there:
fore-fail. The appeal is accordingly diStnissed with
costs.
·-
· · :>: ·
··
,;·; ·, ".; .App-edl -- dis1nissed,