B. K. CHATURVEDI, J.

( 1 ) THIS is plaintiff's second appeal against a decree of the 2nd Additional District judge, Bilaspur, reversing the decree of the trial Court and dismissing the plaintiff's suit.

( 2 ) THE facts are that on 21-1-1949 at Bilaspur the plaintiff-firm through the manager delivered to the defendant No. 2, the driver of a truck of the defendant no. 1, one hundred and twenty bags of tendu leaves for transport to Gondia. It is admitted that Motiram (defendant No. 2) was authorised to enter into contracts on behalf of the defendant No. 1. It was agreed that the plaintiff would pay Rs. 3/8/per bag as the hire for the transport and Rs. 20/- were paid as advance on this account. The truck No. C. P. R. 578 of the defendant No. 1 left for Gondia loaded with 120 bags that very day, but the bags were never delivered at Gondia. At the rate of Rs. 16/- per bag, the bags of tendu leaves were worth Rs. 1920/- and a suit was filed by the plaintiff against the two defendants for Rs. 1940/-after a demand and after service of a notice.

( 3 ) THE suit proceeded ex parte against the defendant No. 2. Defendant No. 1, who is the respondent in this appeal, contested the suit mainly on the ground that near about 58 miles from Gondia, on 23-1-1949, the bags of tendu leaves caught fire from some sparks accidentally escaping from the coal-gas boiler of the truck and the leaves being dry and inflammable, the whole truck was ablaze and was destroyed along with the leaves by fire. The defendant No. 1 contended that it should be treated as vis major and that there was no negligence.

( 4 ) THE main question for consideration in the case was : Was the failure of the contract on the part of the defendants due to vis major or due to negligence? The defendant No. 1 himself had not gone with the truck but had sent the driver (defendant No. 2) and the cleaner Bhaiyalal with the truck. He did not produce in his evidence either the driver or the cleaner or anybody else who was in the truck. He examined himself, but only said that he learnt from his driver and his cleaner about the accident. He also produced Narain Rao (D. W) g), Maruti Rao (D. W. 3)and Subedar (D. W. 4) to depose that on their way they had seen the truck burning and some persons throwing earth on it to quench the fire. The trial Court observed that there was no evidence to show how the fire had ori-ginated. It decreed the suit.

( 5 ) THE lower appellate Court was of opinion that under Section 8 of the Carriers act of 1865 the carrier is liable for loss of goods when such loss or damages arises from the negligence of the carrier or any of his agents or servants. It also conceded that mere loss of, or, the non-delivery of his goods) is prime facie proof of negligence of the carrier, But it came to the curious conclusion that the defendant No. 1's version that the fire was due to sparks accidentally coming out from the coal-gas plant attached to the truck should be believed. It also observed that the defendant No. 1's witnesses (D. W. 2, D. W. 3 and D. W. 4) had also seen the truck burning and that the coal-gas plant of the defendant's truck was obvious to the plaintiff and with open eyes he had sent his tendu leaves, which are inflammable, in this truck and, therefore, he must bear the loss.

( 6 ) IN my opinion, the learned Judge of the lower Appellate Court has fallen into an error on a point of law. He has ignored the principle underlying Section 9 of the carriers Act, 1865 (III of 1865), which relieves the plaintiff of proving negligence. The carrier must exonerate himself from liability for the loss. The mere occurrence of the fire, under circumstances such as the present, is evidence of negligence, the truck with the coal-gas plant on it being under the management of the defendant no. 1's servants; and as they have not been produced to show how the fire originated and no explanation offered, the respondent has not discharged the onus cast upon him by law of showing that there wa

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