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2. Before the lower Court, the case of the respondents is as under: The first plaintiff is M/s. Hindustan Photo Films Manufacturing Co., Ltd., a Government of India Enterprise, having their registered office at Indu Nagar, Ootacamund, Tamil Nadu and the second plaintiff is M/s. United India Insurance Co., Ltd., Coimbatore having their registered Office at Coimbatore. The defendant/appellant herein/is a public common carrier carrying its business in transporting goods from place to place for hire. It has got its registered and head office at No. 9437, Multani Dhande, Gali No. 10, Dhari Ganji, New Delhi. As per transfer of Stock 8/21/121 dated 12/14-11 1977 issued by M/s. Hindustan Photo Films Manufacturing Co., Ltd., the first plaintiff entrusted 152 wooden cases of X-ray film with the defendant at Ootacamund under the defendant's consignment Note No. 270 dated 14-11-1977 for transport to the first plaintiff's branch office at New Delhi The first plaintiff-first respondent herein was the consignor and the first plaintiff's branch office at New Delhi is the consignee under the aforesaid consignment note No. 270. The original consignment Note No. 270 has been given to the defendant at the time of taking delivery of the goods. When the goods arrived at Delhi, the defendant delivered all 152 cases of X-ray film, out of which 62 cases were found completely damaged and wet in diesel oil Therefore an open delivery was taken and the defendant has given a shortage/damage certificate dated 21-12-1977 in token of having delivered 525 packets in damaged condition. The damage to the consignment is due to the negligence of the defendant in handling and transport. The defendant has categorically admitted in the said certificate dated 21-12-1977 that in case the inside contents of the packets delivered in good conditions are affected, they shall make the good the loss. The allegation in the said certificate that was issued strictly without prejudice and without admission of liability on the part of the defendant is illegal, and in any event untenable as it is contrary to the absolute liability of a common carrier under law. The damage to the goods having been caused by the negligence of the defendant, they are liable to pay their value by way of damages. The damaged goods are totally unfit for use The plaintiffs are restricting their claim for damages representing the cost of materials delivered in damaged condition by the defendant less salvage together with the survey fees incurred in surveying and assessing the damages. Since the first plaintiff has insured the goods, it caused the damaged goods to be surveyed and damages assessed by a qualified Surveyor/assessor by name M/s. K D. Kholi & Co., and they have also assessed the damages. The first plaintiff has insured the said goods with the second plaintiff under the latter's Policy No. 112/83/1/00006/77 to cover the risk against loss or damage in transit In the circumstances the second plaintiff was obliged to pay to the 1st plaintiff a sum of Rs. 1,34.904-3 as detailed in the particulars of damages, made up of value of the goods damaged plus Central excise, less salvage value. Hence the second plaintiff is entitled to sue the defendant in its own name for the recovery of the suit claim, under the name of subrogation. In consideration of the aforesaid payment, the first plaintiff has executed a letter of subrogation, an assignment, assigning and transferring in favour of the second plaintiff all its right and remedies including the right of suit against the defendant to recover the damages. If for any reason the Court holds that the first plaintiff alone is entitled to sue the defendant for the recovery of the suit claim, then, the plaintiff No. 2 submits that the first plaintiff has also joined in this action. The first plaintiff by its letter dated 26-12-1977, made a claim upon the defendant and demanded payment of the suit claim but without any effect. The defendant has sent a reply dated 3-1-1978 alleging illegal and untenable grounds. The allegation that the goods were carried at owner's risk and that therefore, the defendant is not liable, is also untenable as it is contrary to the absolute liability of a common carrier like the defendant under law In the circumstances, the defendant's/appellant's repudication of the plaintiff's demand of the suit claim is clearly illegal and in any event untenable. The plaintiffs have also issued a lawyers notice dated 16th September, 1979 claiming payment but the defendant has failed to make the payment. Therefore the plaintiffs have been constrained to file the suit for recovery of the suit amount.

4. The plaintiffs/respondents, filed their reply statement in the following manner. The defendant accepted the consignment for transport at Owner's risk only is illegal and in any event untenable and that the damage to the consignment was due to an accident to the transport lorry and that the accident to the lorry was caused by mechanical failure are very vague. The plaintiffs do not admit the same as true and put the defendant to strict proof of the same and the defendant's non-liability in consequence. Even if true, the same could very well have been averted by proper care and mainte-nance of the vehicle and sufficient precautions. When the goods entrusted to a common carrier for transport is found damaged at the destination, it is quite natural and perfectly legal for the owner to demand a damage certificate, and the giving of such a certificate by the carrier but incorporating words such as 'without prejudice' and without admitting liability' is but illegal attempt to avoid liability, is possible. In any event these conditions or stipulations cannot at all affect the statutory liability of the defendant for his negligent transport of goods. The allegations in para 6 of the written statement in respect of the second plaintiff's settlement of the insurance claim with the first plaintiff, and the second plaintiff's right to sue the defendant for recovery and reimbursement of the suit claim in consequence are misleading, misconceived, and in any event untenable. Therefore, the plaintiffs are entitled to a decree as prayed for with costs.

24. A careful reading of the provisions under Section 9 of the Carriers' Act shows that when once the loss, damage or non-delivery of the goods is proved by the respondents, the negligence or criminal act is presumed on the part of the carrier and then it becomes the duty of the common carrier to rebut the presumption. Thus, the onus of proving the negligence of the carrier is not upon the consignor that is the first respondent and on the other hand, the loss or damage to the goods is prima facie proof of negligence under Section 9 of the Carriers Act and the burden of proof to the absence of negligence is thrown upon the common carrier.

25. In P.K. Kalasahi Nadar v. K. Ponnuswami Mudaliar AIR 1962 Madras 44, it was held that in a suit against the common carrier for loss, damage or non-delivery of articles or goods entrusted to the carrier is not required to prove negligence, the reason being that the liability of a common carrier is that of an insurer.

26. In Assam Roadways v. National Insurance Co. , it was held that the carriers had succeeded in proving that there was no negligence or criminal act on their part and they had limited their liability in case of accident and as such, were not liable for damages resulting from accident. But the above authority has no application to the facts of the present case. The contention raised on behalf of the appellant in the instant case before us by Mr. K. Krishnamurthy is that inasmuch as consignment in question was despatched at ower's risk, the carrier is not liable for the loss or damage and in any event, the onus is upon the consignor to prove negligence on the part of the carrier. Ex. A.7 dated 14-11-1977 is a consignment note which discloses that the consignment was booked at owner's risk. Ex A.3 dated 21-12-1977 is a certificate of damage/shortage which discloses that this certificate is issued strictly without prejudice and without admission of liability either on their part or on the part of the original Carriers or our/their servants or agents. It is relevant in this connection to note that though the recitals found in the consignment note, Ex. A.7 and in the certificate of shortage/damage, Ex. A3, exonerate the carrier from the liability for negligence on his part or on the part of his servants, yet it is well settled that any contract exonerating the carrier from liability for negligence on his part or on the part of his servant, is invalid since it is opposed to the provisions of Section 8 of the Carriers Act which lays down that every common carrier shall be liable to the owner for loss or damage to any property delivered to such carrier to be carried. Though in Ex. A3 it is stated that this certificate issued strictly without prejudice and without admission of liability on the part of the original carriers or their servants, yet the evidence of PWs 1 and DW 1 evidently go to show that 62 wooden cases containing 525 pockets were delivered in completely damaged and wet with diesel oil. In the instant case before us, we find that 62 wooden cases containing 525 pockets were delivered in completely damaged and wet with diesel oil. Thus we find that the first respondent has discharged the initial onus of proving the loss or damage. Now it is for the appellant to prove the absence of negligence.