The Transport Corporation of India vs The Hindustan Polymers Ltd.

Punnayya, J.—This appeal arises out of a suit filed for recovery of freight charges amounting to Rs. 7,455-25p. together with subsequent interest. Plaintiff in the suit is the Appellant before this Court.

The Appellant (Plaintiff) is the Transport Corporation of India Limited, a common carrier within the meaning of Section 2 of the Carriers Act, 1865 (Act III of 1865) (which will hereinafter be referred to as the Act). Respondent (Defendant) is also a Company, engaged in the manufacture and distribution of polystrene fibre. The case of the Plaintiff is that between 20-6-1973 and 18-1-1976, it carried polystyrene entrusted to it by the Defendant Company for delivery to its branches situated at various places in the country and that on this account, after giving credit to the several payments made by the latter, a sum of Rs. 7,455-25 p. is still due outstanding against it towards freight charges and that it failed to pay the said sum despite demands on the ground that it was deducted towards the value of goods alleged to have been short-delivered to the consignees. Hence the suit. The Defendant filed written statement contending inter alia, that there was shortage in the goods entrusted by it to the Plaintiff and delivered by the latter at the destinations during the suit period, that the value of the goods thus short-delivered was more than the amount sought to be recovered by the Plaintiff towards freight charges, that the Plaintiff is not entitled to lay claim to that amount since it has been adjusted, towards the value of the goods short delivered, in pursuance of an agreement and trade usage to that effect: and that the suit is, therefore, liable to be dismissed with costs. Necessary issues were framed on the basis of these pleadings and the trial Court, while agreeing with the Defendant that the value of the goods short-delivered to it is Rs. 7,016-86 p., granted a decree to the Plaintiff for Rs. 7,016-86 p. together with proportionate costs and subsequent interest, as, according to it, the Defendant is not entitled to deduct the value of the goods short-delivered from out of freight charges payable to the Plaintiff and that its remedy is only to institute a separate suit for realisation of that amounts. This decision was, however, reversed in appeal and the suit was dismissed, as, according to the learned II Additional District Judge, Visakhapat-nam, the Defendant is entitled to adjust the value of the goods short-delivered to it against the freight payable to the Plaintiff since the latter failed to discharge the burden of establishing that there was no negligence on its part in the matter of carrying the goods entrusted to it by the Defendant Company. Aggrieved, the Plaintiff has preferred this second appeal.

The substantial question of law arising in this appeal and on the basis of which it has been admitted is: "Whether in a suit by a carrier for the amount payable to him being the charges for carrying the goods, if the Defendant pleads short delivery of the goods, the burden lies upon the Plaintiff to prove that the short delivery was not by reason of his negligence.

It is not in dispute that the Plaintiff is a common carrier within the meaning of Section 2 of the Act as it is a Company engaged in the business of transporting for hire property from place to place by land for all persons. But learned Counsel contends that the court below misconstrued the scope of Section 9 of the Act when it held that the burden of proof lay on the Plaintiff in this case notwithstanding that the suit is by and not against a common carrier. Section 9 of the Act lays down that "In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the Plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents". Since the carrier and not the person that entrusted the goods to it for carriage figures as Plaintiff in this case, it is argued that Section 9 of the Act has no application at all.

It is true that the Plaintiff in this case is the carrier and not the person that has entrusted the goods for carriage; but this by itself does not disentitle the Defendant from calling in aid Section 9 of the Act as the word "Plaintiff" occurring in it has to be construed in a broad and not narrow or restricted sense, particularly because of the purpose for which the Act was made. The Act which deals with the rights and liabilities of Common Carriers is intended, as can be seen from its preamble, not only to enable Common Carriers to limit their liability for loss of or damage to property delivered to them to be carried but also to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves, their servants or agents. In view of the aforesaid object sought to be achieved by the enactment, it is but fair and proper to determine the rights and liabilities of a common carrier with reference to the provisions of the Act as a whole and not merely by taking into account the position that is occupied by the carrier in the prayer of parties in a suit. It will not be correct to say that the rights and liabilities enumerated in the Act could be urged if only the person entrusting the goods for carriage seeks to enforce his claim against the carrier and not when the carrier initiates action as in this case when the primary object of the Act itself is to regulate the rights and liabilities of carriers. In this view, therefore, it must be said that the Court below was right in placing the burden of establishing absence of negligence on the carrier notwithstanding that the carrier and not the Company that entrusted the goods to it for carriage figures as Plaintiff in this case. Since it was found as a fact by the Courts below that there was short delivery of goods worth Rs. 7,016-86 p., it is for the Plaintiff to prove that the said short-delivery was not the result of any negligence or criminal act on the part of its servants or agents in the matter of carrying the goods entrusted to it; but no such evidence at all was placed before the Court by the Plaintiff to prove absence of negligence.

Even granting for a moment that Section 9 of that Act has no application to the instant case inasmuch as the transport company and not the person that entrusted the goods to it for carriage happens to figure as the Plaintiff, it can still not be said that the Plaintiff is under no obligation to establish absence of negligence on the part of its servant''s or agents in carrying the goods since delivery at the destination of a lesser quantity of goods than was entrusted to the carrier would constitute prima facie evidence of negligence. Loss of goods entrusted to a carrier for transport would naturally give rise to a presumption of negligence on its part and it is for the carrier to explain, by cogent evidence, as to how the loss had occurred. This is all the more so because the circumstances that led to the shortage of the goods in question could be known only to the Plaintiff or his servants and agents and not to the Defendant by whom the goods were entrusted for carriage. Reference may be made in this context to Section 106 of the Evidence Act which lays down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Since the circumstances under which shortage of goods entrusted to it for carriage had occurred, is a matter that is within the special knowledge of the carrier i.e., the Plaintiff, it is for it to prove that there was no negligence on its part in the matter of carrying the goods entrusted to it by the Defendant, even if we should assume that Section 9 of the Act has no application in this case.

I accordingly find the substantial question of law referred to above in the affirmative.

The appeal, therefore, fails and is dismissed with costs.