The burden of proof is on the carrier to prove absence of negligence or criminal act leading to the damage caused to the goods. The liability of the carrier cannot be limited by a public notice or by a mere clause printed in the consignment note that the goods were accepted for transportation at owner's risk.

The defendant in the original suit is the appellant. The original suit in O.S.No.5378 of 1998 was filed by the respondents 1 and 2 for the recovery of a sum of Rs.29,343/- as compensation for the damage caused to the goods transported in the appellant's/defendant's vehicle. The suit was decreed by the trial Court and the same was confirmed by the lower appellate Court. As against the concurrent judgments of the Courts below holding the appellant/defendant liable to pay the above said amount as damages with interest, the present second appeal has been filed. For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit and if necessary, further descriptions shall also be furnished at appropriate places.

2. The claim was made based on the following plaint averments:

Hindustan Corporation (Hyd) Private Ltd., the defendant is a common carrier and a Private Limited Company having its registered office at 1-2-3, Domalguda, Hyderabad. It is carrying on its business in other places including Chennai. Its Chennai Branch Office is at No.22, Trevelyan Basis Street, Madras – 600 079. S.S.B Industries Limited, Puducherry, the first plaintiff, purchased 1469 numbers of Porcelain Electrical Insulators from W.S. Industries (India) Limited for their plant in Puducherry under two invoices for a total sum of Rs.2,99,510/- (Rs.25,240/- + 2, 54,270/-). The said insulators were neatly packed in wooden crates in confirmity with the standards and norms worthy of normal road carriage and were entrusted to the defendant common carrier in good condition for being transported by road from Chennai to Puducherry for door delivery to the first plaintiff. On being satisfied with the apparent sound condition of the consignment, the defendant common carrier accepted the consignment for transporting the same to Puducherry for door delivery to the first plaintiff for reward. The said consignment was made on 22.02.1996. The said consignments were delivered to the first plaintiff under two consignment notes bearing numbers 059458 and 059459 on 23.02.1996 in a damaged condition and on inspection, it was found that 78 numbers of insulators under Consignment Note No.059458 and 46 numbers of insulators under Consignment Note No.059459 were found damaged. The Procelain Insulators which were found damaged could not be used and it did not have any salvage value. The value of the insulators found damaged was Rs.23,512/-adding 20% of Excise Duty and 4% of CST, a total amount of Rs.29,343/- was arrived at as the loss caused to the first plaintiff due to the damage caused to the insulators. An independent surveyor, after conducting survey, submitted his report on 08.03.1996 opining that the insulators had been broken due to negligence / mishandling on the part of the transport personnel during transit/loading/unloading. The first plaintiff thereafter issued a notice of loss required under Section 10 of the Carriers Act, 1865 on 25.02.1996. The defendant common carrier did not deny the fact of the damage caused to the suit consignments, but denied their liability to pay damages in their letter dated 28.03.1996. Only as a result of negligence on the part of the defendant Common Carrier while discharging their statutory obligations, the loss has occurred. As the suit consignments have been insured with the second plaintiff under Policy No.011701/21/26/10717/95, the second plaintiff, namely United India Insurance Co. Ltd., paid the said amount of Rs.29,343/-to the first plaintiff. Pursuant to the same, the first plaintiff executed a letter of Subrogation and Power of Attorney in favour of the second plaintiff on 20.12.1996. Subsequent to the settlement of the claim under the insurance policy, the second plaintiff lodged a claim through the recovery agent on 07.02.1997. As such the second plaintiff, the United India Insurance Co. Ltd., is entitled to file and maintain the suit in their own name. However, in order to avoi