When the plaintiff pleads specific negligence, the burden of proving non-negligence shifts to the plaintiff, as per the Carriers Act, 1865, and the common law principle.

( 1 ) 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 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. and Another v Sri Ganesh transport Co. and 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:-"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. [ilr 1987 Kar. 2870] 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 tnat 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 c