ORDER
Shivashankar Bhat, J.
1. Plaintiffs are the petitioners in this Revision Petition. They are aggrieved by the framing of a fresh issue, which reads thus:
'Whether the plaintiffs prove that the said accident was due to the negligence of the defendant?'
2. The suit is one for damages. According to the plaintiffs they entrusted with the defendant certain goods for transportation from Bangalore to Raichur. The goods were delivered in a damaged condition. According to the plaintiffs, the consignment was carried in a lorry which, while in transit on 11-10-1974 dashed against a transformer post and as a result of the accident the transformer caught fire and the goods in the said lorry got damaged on account of fire and in the course of fire fighting operations. The damaged consignments were collected by the defendant and despatched to the second plaintiff's office and was delivered at Bangalore. The accident aforesaid was caused due to the negligence of the defendant. At para-10 of the plaint, the date 11-10-1974 was referred as one of the dates giving cause of action to the suit, as the date when the consignment was damaged.
The learned Munsiff, found it necessary to frame the issue as stated above.
3. According to the petitioners, the defendant being a common carrier, no onus can be cast on the plaintiffs who claim damages in respect of the goods consigned for transportation, when a claim is made against a common carrier, to prove negligence against the carrier.
The learned Counsel for the petitioners is perfectly justified, in stating the principle in its abstract form.
Mr. Raghavendra Rao, the learned Counsel for the respondent, cited a decision of a Division Bench reported in HERCULES INSURANCE CO. AND ANR. v. SRI GANESH TRANSPORT CO. AND ANR., 1969(1) Mys.L.J. 316 wherein a passage from the American Jurisprudence - 2d -Volume 14 - Para 618 (Second Edition) was quoted, to hold that, in case 'the plaintiff alleges specific acts of negligence, he then has the burden of proving such negligence.' It was observed by the Division Bench:-
'It was not incumbent on the plaintiffs to plead that the damage was caused on account of negligence; but having alleged that the damage was caused on account of specific acts of negligence, it was not necessary for the defendant to plead that the damage was on account of inevitable accident; it was sufficient for him if he denied that there was any negligence.'
4. According to the learned Counsel for the petitioners, the subsequent ruling of another Division Bench in INTER STATE TRANSPORTS v. PFIZER LTD., : ILR1987KAR2870 lays down a different Rule. According to Sri Kolekar, the learned Counsel, the burden of proving non-negligence is on the carrier, as per Section 9 of the Carriers Act, 1865, and this burden imposed on the carrier is a principle flowing from the common law.
The earlier decision reported in 1969(1) Mys.L.J. 316 has been referred and considered by the subsequent Division Bench in Inter State Transports' case. At Page 2876, a proposition was advanced by the defendant in the said case, that the plaintiff has pleaded specific negligence and therefore, onus of proving the same was on the plaintiff. Para-21 of the earlier decision was quoted, including the passage extracted by me already. Referring to this passage, Inter State Transports' decision stated, --
'In our view, this observation of the Division Bench does not support the contention of the defendant.. In that case the defendant called for particulars of negligence alleged to have been committed by it and in response to the application calling for particulars, the plaintiff therein had attributed a specific act of over-loading and rash and negligent driving which resulted in the:-
'Breaking of the main spring leaf of the front spring near the front end and the result was that the front axle went back on its rear shackle making the lorry turning to the right of the road and the driver could not have been able to control the vehicle because the lorry dragged to the right and one wheel went over the Irish Bridge and the truck had toppled and the transformer was thrown off the full weight.' On these facts, this Court took the view that the plea of negligence alleged against the defendant was not proved. But, in the instant case, the plaintiffs had not alleged any specific acts of negligence. They had only pleaded that the defendant was a common carrier and it had not acted in a prudent manner and the damage and loss of goods in question was caused by rash and negligent acts of the defendant, its servants and agents. Therefore, a duty was cast on the defendant to prove that its servants and agents had acted prudently and not negligently. The defendant having admitted that the vehicle met with an accident, it was incumbent on the defendant to prove further that, that accident was due to reasons beyond its control.'
Nowhere the decision in Inter State Transports' case dissent from the principle stated in the earlier case. The facts of the subsequent case was such that, the principle enunciated in the earlier case had no application. No specific negligence was averred by the plaintiff in Inter State Transports' case.
5. If the plaintiff had rested his case simply averring that the goods had been entrusted to a common carrier and that the goods when delivered by the carrier were damaged, the onus of proving non-negligence etc., would, have been entirely on the common carrier, provided the goods were proved to have been damaged after entrustment to the carrier. But, when the plaintiff, for whatever reason, expands the narration in the plaint, and pleads a specific negligence on the part of the carrier, as the cause for the damages, thereby exhibiting his full knowledge of the particular negligence of the carrier the Rule stated in Hercules Insurance Co. comes into operation.
6. The normal Rule imposing the burden of proof on the carrier under Section 9 of the Carriers Act, is based on the assumption that the Carrier being the insurer of the goods and is in custody of the goods, should know the reason for the damage and is responsible for the safety of the goods; it is impractical to assume such a knowledge in the person who entrusted the goods with the carrier. The principle is based on sound public policy and the purpose behind it is, --
'The immense increase of business, the inestimable value of the commodities now entrusted to the charge of common carriers, and the vast distances to which they are transported have multiplied the difficulties of the owner who seeks to recover for the loss of his goods and have added greatly to the opportunities and temptations of the carrier who might be disposed to neglect or violate its trust. Furthermore, it is apparent that while the dangers of embezzlement and collusion with thieves, generally given as the cause, might be sufficient when the property is lost, such a reason as no application when it is delivered at its place of destination in a damaged condition. The carrier's exclusive possession of evidence, the difficulties under which the shipper might labor in discovering and proving the carrier 's fault, his inability to contradict the carrier's witnesses, the necessity of avoiding the investigation of circumstances impossible to be unraveled, the importance of stimulating the care and fidelity of the carrier, and the convenience of a simple, intelligible, and uniform Rule in so extensive a business - in other words, commercial necessity plus public policy and convenience -constitute much broader grounds and are the basis for the acceptance of the Rule at the present time.'
(Vide American Jurisprudence - 2d. Volume 14 -second edition - para 509)
7. Obviously the above protection is found to be unnecessary when the plaintiff takes upon the responsibility of pleading a specific negligence and exhibits a full knowledge as to how the damage was caused to the goods.
I am bound by the decision in Hercules Insurance Co. which has not been dissented in any manner by the subsequent Division Bench.
8. The plaintiffs here should have been more circumspect while drafting the plaint and thus could have avoided the burden, which, now, they have invited upon themselves. In the circumstances of the case, the order under revision does not call for interference.
9. Consequently this petition is rejected. No order as to costs.