The central legal point established in the judgment is the liability of common carriers under the Carriers Act, 1865, particularly focusing on the provisions of Section 8 and Section 9, and the burden of proof on carriers to show no criminal act or negligence.

1. The plaintiff sued for damages for loss of 112 muras of rice, which was entrusted for transport by the first defendant's lorry M.D.X. 1860 from the southern bank at Thekkil ferry to the plaintiff's Aletti estate. It was loaded on March 24, 1953, and was driven by the second defendant that night. Transport of rice by night along the route being prohibited, the lorry and rice were both seized at the checking station. The second defendant was eventually convicted and the rice was confiscated. The plaintiff also sought to recover charges incurred by him in transporting by headload other rice which he purchased in replacement for use in his estate. Both the defendants denied their liability and contested the suit. The Subordinate Judge decreed the suit against both, for the value of 112 muras of rice and interest thereon and disallowed the rest of the claim. The first defendant has preferred this appeal and the plaintiff has preferred a memorandum of objections against the decree.

The basis of his judgment was stated thus by the Subordinate Judge:

"The 1st defendant is liable as a common carrier for breach of the statutory duty which is absolute, and the 2nd defendant, as the servant of the first defendant, is equally liable along with him."

Evidently the Subordinate Judge had in mind S.8 of the Carriers Act, 1865 which reads:

"Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damages to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of S.3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the negligence of the carrier or any of his agents or servants."

When the appeal came on for bearing for the first time, it was complained that the first defendant was misled, as the basis of the claim as under S.8 aforesaid Lad not been set out in the plaint. In consequence, an issue was remitted as to whether the defendants had committed any criminal act, or are guilty of negligence within the meaning of the section. Incidentally another issue was also remitted as to whether the plaintiff or his servants induced or caused the second defendant to transport rise during night and whether therefore the plaintiff was precluded from enforcing the liability under S.8. The Subordinate judge has now found in substance, that the second defendant had committed a criminal act by transporting rice by night in spite of the prohibition against it, that the first defendant had been negligent in not instructing the second defendant as to such prohibition, and that the plaintiff's servant Ukkas induced or caused the second defendant to transport the rice by night, but that the plaintiff is not precluded from enforcing the liability against the defendants.

2. As found by the Subordinate Judge already, the first defendant was a common carrier as defined in the Act, the rice was loaded in the lorry, and transport was made on the night of the 24th in contravention of the Collector's notification, which was in pursuance of a notification of the Governor of Madras made in 1952 under S.3 of the Essential Supplies (Temporary Powers) Act, 1946, and which had the force of law. It was not disputed that a contravention of the notification was punishable, and that the second defendant was convicted and sentenced by Ext. A-2 judgment. S.9 of the Carriers Act is important and it reads:

"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."

The Subor