JUDGMENT - A.A. HALBE, PRESIDENT:---The undisputed facts are that the appellant undertook to transport 60 bales of Comber waste to Gokak Mills which is the division of Gokak Patel Volkart Ltd. The said bales belong to the original complainant M/s Shaha Brothers. The opponent is a transporter running business of transport under the name and style "M/s Southern Carriers Corporation" at Nagpur. The said goods were transported by Truck No. ADC 1595 from Nagpur to Gokak on 17-5-92. The value of the consignment was Rs. 2,10,674.14ps. However, during the course of transport, the said goods were destroyed by fire and hence the complainant made the claim of the above value of the goods. Now, this consignment was booked under Lorry Hire Receipt No. 5182, dt. 17-5-92. 2.The opponent contended that the consignment was booked on the hire charges of Rs. 7500/- under the above receipt. But the bales caught fire for which the carrier is not responsible. The consignment was carried at 'owner's risk' and the complainant should have taken the care to get the goods insured. Under the terms of receipt, the appellant was not responsible for accident, fire, theft and re-booking. The District Forum found that since the goods were entrusted to the transporter, the transporter was responsible for the loss of goods by fire. This fire was on account of negligence of the transporter and hence the appellant /O.P. was made to pay Rs. 2,10,674. 14 Ps.+ Rs. 7,500/- = Rs. 2,18,174.14 ps. with 18% interest thereon from 4-5-92 + cost of Rs. 200/-. 3.We may state at the beginning that all these facts are not disputed. The main question which has been raised on behalf of the appellant transporter is that the lorry-receipt was produced in part viz. the front part and that is why the District Forum did not take into consideration, the Clauses on which the appellant was seeking the exoneration. They are, respectively, Clauses No. 1, 4 5. Now, Clause 1 reads that even the goods are carried entirely at the owner's risk, that the consignor should take over the insurance of the goods and that the liability of the transporter could not exceed Rs. 100/-. Clause 4 provided that the transporter is not responsible for loss or damage to the goods by breakage, evaporation, rough road and weather, strikes, explosion, fire or accident to the vehicle etc. 100/-. Clause 4 provided that the transporter is not responsible for loss or damage to the goods by breakage, evaporation, rough road and weather, strikes, explosion, fire or accident to the vehicle etc. The Clause No. 5 also provided that the transporter was not responsible for accident, fire, theft and re-booking. If these conditions would have been taken into consideration by the District Forum, the liability of the transporter would have extended only upto Rs. 100/-. There is a settled law on that point. The respondent/complainant did not approach the District Forum with clean hands i.e. keeping back these conditions from the scrutiny of the District Forum, the claim is liable to be dismissed on that count alone. One who seeks relief must come with clean hands. One who comes with smeared hands, must be turned out. 4.As against this, the main contention raised on behalf of the respondent/complainant is that the transporter is a 'common-carrier' and that he is responsible even for the insurance of that consignment under the Common Carriers Act. He is also liable to make good the losses and that the condition about the specified payment is not binding on the consignor. 5.Now, in this regard, we find that the complainant has relied on certain cases, which in our view, do not strengthen the case of the complainant. The complainant has relied on A.I.R. 1992 Supreme Court 596 (Jayabharathi Corporation v. SV. P.N. SN. Rajesekara Nadar)1, wherein it is observed that the agent is liable for the damages when the agent purchased commodity for his principal - Neglect and misconduct of agent misinforming his principal as to the purchase of the goods, would make agent liable for the damages. We find that this case is not applicable because the transporter is not the agent. The transporter is merely the commission-agent on behalf of the transport-vehicle owner and hence this principle cannot be invoked. The transporter has not been party to any sale or purchase of comber-waste and hence this judgment cannot help the case of the complainant. It is next pointed out by the Counsel for the respondent/complainant that in the A.I.R. 1984 Supreme Court 15 in the case of (M/s M.G. Brothers Lorry Service v. M/s Prasad Textiles)2, it is clearly laid down that the liability of the carrier under the Carriers Act, is absolute. It is next pointed out by the Counsel for the respondent/complainant that in the A.I.R. 1984 Supreme Court 15 in the case of (M/s M.G. Brothers Lorry Service v. M/s Prasad Textiles)2, it is clearly laid down that the liability of the carrier under the Carriers Act, is absolute. Condition of way bill limiting liability of carrier tends to breach section 10 of the Act and hence void under section 23 of the Contract Act. Now Clause 15 of the way bill provided that the complainant must give 30 days notice from the date of booking or from the date of arrival of the goods, about loss; otherwise the suit was not maintainable. Section 10 of the Common Carriers Act, on the other hand, provides Notice of 6 months from the date of loss or knowledge thereof before filing the suit. We state here that the view of the Supreme Court relates to this condition and not to the condition of limited liability. The said view of limited liability has been propounded by the Privy Council and also the Supreme Court to which, we shall come later. But suffice it to say that at this stage, the case of M/s M.G. Brothers Lorry Service, cannot assist the cause of the complainant. In the same judgement, it is observed that the liability of the common-carrier can be limited by agreement and the limitation of liability does not constitute breach of Carriers Act. In A.I.R. 1981 Bombay 299 in the case of (M/s Road Transport Corporation v. M/s Kirloskar Brothers Ltd.)3, it is laid down that the question of negligence need not be gone into when the goods are destroyed during the transport carried out by the common-carrier. We find that even this view does not advance the cause of the respondent/complainant. In A.I.R. 1963 Bombay 208 in the case of (Hussainbhai Mulla Fida Hussain v. Motilal Nathulal)4, the clause absolving the carrier from the liability arising out of negligence, cannot affect the claim of the owner or the consignor. Negligence need not be proved according to this view. But on our close reading of the said judgement, we find that the question of limited liability by an agreement, has not been discussed; nor the ratio in that behalf set aside in this judgement. Negligence need not be proved according to this view. But on our close reading of the said judgement, we find that the question of limited liability by an agreement, has not been discussed; nor the ratio in that behalf set aside in this judgement. So also in A.I.R. 1965 Rajasthan 200 in the case of (Vidya Ratan v. Kota Transport Co.)5, the same view of negligence has been reiterated. The same view about negligence has been upheld by the Andhra Pradesh High Court in A.I.R. 1979 Andhra Pradesh 41 in the case of (M/s Indian Drugs and Pharmaceuticals Ltd. v. M/s Savani Transport P. Ltd.)6. We believe that the same view prevails even in the judgement of the Madras High Court reported in A.I.R. 1962 Madras 44 (P.K. Kalasami Nadar v. K Ponnuswami Mudaliar)7. The National Commission in the case of (M/s Birla Yamaha Ltd. v. M/s Patel Roadways Ltd.)8, reported in 1996(2) C.P.R. 130, has held that burden of proving absence of negligence is on the common-carrier. We have no dispute in regard to the any of the authorities which emphatically lay down that proof of negligence is not on the consignor but absence of negligence is the onus cast on the common-carrier. We are here concerned with the term which parties agreed upon about the limited liability arising out of theft, loss, fire etc. 6.As against this, we find that in 1997(1) Bom.C.R.(Cons.) 29(S.C.) (Bharathi Knitting Company v. D.H.L. Worldwide Express Courier, Division of Airfreight Ltd.)9, it is laid down by the Supreme Court that the damages cannot be awarded beyond the limit stipulated in the contract. When the complainant signed the contract document, the complainant is bound by the terms. The Forum is not entitled to go beyond the terms of the contract. In A.I.R. 1947 Privy Council 151, in the case of (Alfred William Ludditt v. Giner Coote Airways Ltd.)10, it has been laid down by the Privy Council that the common-carrier of passengers, in law, is neither a insurer nor precluded from making a special contract with its passengers which may either enlarge, diminish or exclude its general duty to exercise care. For this aspect, it is not material whether he is a common carrier or not. For this aspect, it is not material whether he is a common carrier or not. A specific contract between the passengers and the carrier of passengers by air exempting the carrier wholly from liability for the neglect and default of his servants, is valid and enforceable. In A.I.R. 1959 Madras 285 in the case of (Indian Airlines Corp. v. Jothaji Maniram)11, it is held that liability can be limited by a consignment note contract by the carrier i.e. common carrier. 7.From the aforesaid citations, we are very clear that the liability of the common-carrier can be limited by the consignment-note. The respondent cannot be heard to say that he has not signed the consignment-note. On the other hand, the attempt on the part of the respondent to claim unlimited liability would show that the respondent is fully aware of the contents of the consignment-note. This is a case where the consignor has not signed the lorry hire receipt No. 5182. However, he cannot escape from the terms because he had adequate knowledge of them. It is not disputed that conditions are printed in bold letters on the reverse of lorry-hire receipt and that consignor was aware of them. In A.I.R. 1981 Bombay 299, in the case of Road Transport Corp. v. M/s Kirloskar Brothers Ltd., this question has been discussed in paras 32, 33 and 34. They are reproduced for facility : "32. As observed earlier, the consignment note is not signed. The Clause restricting the jurisdiction to only one Court is sought to be enforced. In such a case of an unsigned document, the question would be whether reasonable notice of the terms contained therein has been given to the plaintiffs. The English cases laying down the principle that when a document is not signed but is merely delivered to the plaintiff, attention of the other side should be adequately and specifically drawn to such terms and conditions are legion. .......................................................................................................................... It was observed in that case: the question was one of fact and the Court must examine the circumstances of each case." "33. .......................................................................................................................... It was observed in that case: the question was one of fact and the Court must examine the circumstances of each case." "33. There is a vast number of cases decided by the English Courts, popularly known as --" ticket cases" where it has been held that when a defendant relies on an unsigned document which is not an integral part of the contract, sufficient or adequate notice of such condition ought to have been given before the contract to the other party." "34. From a number of decided cases on the question of adequate and sufficient notice being given to the other side, following principles have been induced and followed in subsequent cases : "At the outset of its inquiry the Court must be satisfied that the particular document relied on as containing notice of the excluding or limiting term is in truth an integral part of the contract. It must have been intended as a contractual document and not as a mere acknowledgment of payment. To hold a party bound by the terms of a document which reasonable persons would assume to be no more than a receipt as affront to common sense." 7-i.Knowledge of an unsigned condition is essentially a matter of fact. We have stated that the argument of unlimited liability of the common-carrier presupposes knowledge of limited liability conditions existing in the receipt. Respondent has not disputed the conditions. 8.Again, we also find that the appellant cannot be called a common-carrier as there is no wide-spread advertisement by him that he carries the goods of the consignors at particular destinations or on consignment-note speaks of lorry hire receipt and it is claimed by the appellant that the owner of the truck was Shri Mashlumani and we are, therefore, of the view that the appellant can not be called a common carrier. There is a sort of public employment of the vehicles by the transporter which is absent in this case. In A.I.R. 1963 Bombay 208 in the case of (Hussain Fida Hussain v. Motilal Nathulal)12, it is observed by the Court that : "The liability of a common carrier arises from the public employment in which he is engaged and the determination of common carrier depends upon whether the transaction was of a casual nature or as a result of public employment. The test to determine whether a person is a common carrier or not is what he publicly professes. The public profession may be made apparent by a public notification or by actually indiscriminately carrying all goods. Such profession may be limited to transport of particular kinds of goods and/or may be limited to one particular route and/or to particular places. The liability to carry the goods arises by virtue of his profession as a public carrier under the common law." "In determining whether a person is a common carrier or not the provisions of Motor Vehicles Act are also relevant and important consideration. The provisions of sections 2(23), 54 and 55 show that it is a matter of public employment that a licence is granted and not for doing the transport work for only a particular individual or individuals casually. The words "at any time and at any place" in section 2(23) have got considerable importance, and they indicate that without a legitimate excuse a public carrier cannot refuse to carry the goods. If he does so because he wants exorbitant charges or for some other unjustifiable reason and representation are made to the transport authority concerned, his licence may be withdrawn" ... 9.We also feel impressed with the argument that the complainant only produced the front portion of lorry-hire receipt kept back the terms and conditions of lorry-hire receipt from the scrutiny of the District Forum. The appellant is simply a person who despatched the goods on commission. For that purpose, he hired the services of the truck-owner. In view of the Supreme Court judgement in the case of Bharathi Knitting Co., we feel that the appeal has to be allowed. The appellant should be liable to pay Rs. 100/-. Equity demands that he should refund the amount of commission of Rs. 7500/- because the goods are lost on account of fire. Order 10."The appeal is partly allowed. The appellant shall pay Rs. 7500/- + Rs. 100/- to the respondent/complainant within eight weeks; failing which the said amount shall carry 18% interest from the date of this order. There shall be no order as to cost." Appeal allowed.