INSURANCE CO LTD Vs. SATHYANARAYANA TRANSPORT

JUDGEMENT

(1.) 1. Plaintiffs are the petitioners in this revision petition. They are aggrieved by the framing of a fresh issue, which reads thus:

(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 ana despatched to the second plaintiffs 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. & Another v Sri Ganesh Transport Co. & Another [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:-