Common carrier liability under the Carriers Act survives "owner's risk" booking and disputed facts must be decided first.

A common carrier under the Carriers Act, 1865 remains liable like an insurer, subject to statutory exceptions and any valid special contract under Section 6; booking goods at "owner's risk" does not, by itself, exclude liability for negligence or criminal act by the carrier or its agents. The Supreme Court also held that liability could not be fixed on the basis of a disputed consignee's letter without first deciding its genuineness and the related factual controversy over diversion of the consignment. The impugned finding was therefore unsustainable and the matter required fresh consideration after resolving those factual issues.

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Issues: (i) Whether a common carrier's liability under the Carriers Act, 1865 is absolute and whether the expression "owner's risk" or a special contract can exclude liability for loss caused by negligence or criminal act. (ii) Whether the National Commission could rely on the disputed letter said to have been issued by the consignee and hold that the carrier was not liable without first deciding the genuineness of that letter and the factual controversy regarding diversion of the consignment.

Issue (i): Whether a common carrier's liability under the Carriers Act, 1865 is absolute and whether the expression "owner's risk" or a special contract can exclude liability for loss caused by negligence or criminal act.

Analysis: The statutory scheme was held to make the liability of a common carrier that of an insurer, subject to the limited statutory exceptions and to a special contract under Section 6. The Court held that "owner's risk" does not, by itself, absolve the carrier of liability for its own negligence or that of its servants or agents. Sections 8 and 9 were treated as preserving liability where loss arises from negligence or criminal act, while relieving the claimant from proving negligence in a suit for loss, damage or non-delivery.

Conclusion: The carrier is not absolved merely because the consignment was booked at "owner's risk"; liability continues for negligence or criminal act, and the statutory position under the Carriers Act governs the dispute.

Issue (ii): Whether the National Commission could rely on the disputed letter said to have been issued by the consignee and hold that the carrier was not liable without first deciding the genuineness of that letter and the factual controversy regarding diversion of the consignment.

Analysis: The factual foundation for the finding that the consignment was diverted to Bhiwandi turned on a letter whose genuineness was directly disputed. The Court held that the Commission had acted on that letter without resolving whether it was genuine or whether the alleged diversion was actually authorised. Because the contested factual issues were not examined and decided, the finding on liability could not stand.

Conclusion: The Commission's decision could not be sustained on the existing record and the matter required fresh consideration.

Final Conclusion: The appeal succeeded, the impugned order was set aside, and the matter was sent back for reconsideration in accordance with law after deciding the unresolved factual controversies.

Ratio Decidendi: A common carrier remains liable for loss or damage caused by negligence or criminal act notwithstanding an "owner's risk" booking, and a finding on liability cannot rest on disputed facts unless the underlying factual controversy has been judicially determined.

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