M/S. ECONOMIC TRANSPORT ORGANISATION ETC.versusDHARWAD DISTT. KHADI GRAMUDYOG SANGH ETC.

A             MIS. ECONOMIC TRANSPORT ORGANISATION ETC.
                                             v.
             DHARWAD DISTT. KHADI GRAMUDYOG SANGH ETC.

                                   MARCH 31, 2000

B                 [M. JAGANNADHA RAO AND M.B. SHAH, JJ.]


           Consumers Protection Act, 1986 : Section 4( 1)(d).

           Consumer Fora-Case before-Applicability ofsection 9 ofthe Carriers
     Act, 1865.
c
           Carriers Act, 1865 : Section 9.

            Common carrier-Negligence of-Loss suffered on account of-Com-
   . plaint before Consumer Forum-Burden of proof-Held section 9 of Carriers
  . Act is applicable to cases before Consumer Fora-Section 9 incorporates
D principle of Common Law relating to burden of proof-Section 14(1)(d) of
     Consumers Protection Act has to be interpreted in that light-Complainant
     before a Consumer Forum has to discharge initial burden-But onus to prove
     absence of negligence is on the common carrier.

E          Patel Roadways Ltd. v. Birla Yamaha Ltd., [2000) 4 SCC relied on.

          CIVIL APPELLATE JURISDICTION : Petition for Special Leave to
     Appeal (C) NO. 1318 of 1999 Etc.                           .

          From the Judgment and Order dated 10. 7 .98 of the National Consumers
F    Disputes Redressal Commission, New Delhi in R.P. No. 975 of 1997.

          Pawan Kumar Bhal, Harish Kumar, M.M. Kashyap, Mahabir Singh,
     R.S. Hegde, P.P. Singh, Bhargava V. Desai, Siddhartha Chowdhury and
     Rajeev Sharma for the appearing parties.

           The following Order of the Court was delivered :
G
            The petitioner is a common earner govered by the Carriers Act, 1865.
     It contends that under Section 14(1)(d) of the Consumers Protection Act, 1986
     the Consumer Fora can direct payment of compensation to the consumer for
     loss or injury suffered by the consumer due to the 'negligence' of the opposite
H    party and hence the burden of proof is on the complainant. It is contended that
                                             888
          ECONOMIC TRANSPORT ORGANISATION v. DHARWAD DISTT. KHADI GRAMUDYOG SANGH ETC.   889
     Section 9 of the Caniers Act which 'imposes burden on the defendant or the                A
     common earner to prove absence of negligence cannot therefore be applied
     so as to shift the onus to the canier to prove absence of negligence.

             In view of the recent Judgment of this Court dated 28th March,, 2000
     in Palel Roadways Limited v. Birla Yamaha Limited, in C.A. No. 9071 of
     1996, we are of the view that the liability of the common carriers is that of             B
     the insurer. It was held there that Section 9 of the Caniers Act, 1865 applies
     to matters before the Consumer Fora under the Consumers Protection Act. It
     was also held that the principle underlying Section 9 of the said Act relating
     to burden of proof is a principle of common law and has been incorporated
     in Section 9 of the Carriers Act. Even assuming that Section 9 of the Caniers             C
     Act, 1865 does not apply to the cases before the Consumer fora under
     Consumers Protection Act, the principle of common law above mentioned
     gets attracted to all these cases coming up before the Consumer fora. Section
      l4(1)(d) of the Consumers Protection Act had to be understood in that light
     and the burden of proof gets shifted to the caniers by the application of the
     legal presumption under the common law. Section 14(1)(d) has to be under-                 D
     stood in that manner. The complainant can discharge the initial onus, even if
     it is laid on him under Section 14(1)(d) of the Consumers Protection Act, by
     relying on Section 9 of the Caniers Act. It will therefore be for the canier to
     prove absence of negligence. It has been held in like circumstances that a
     defendant in a suit on the basis of a negotiable instmment can discharge the              E
     onus lying on him under Section 118 of the Negotiable Instruments Act by
     relying on another presumption under Section 114 of the Evidence Act under
     which if a plaintiff does not produce the accounts in his personal custody an
     adverse inference can be drawn against the plaintiff. Kundanlal v. Custodian,
     Evacuee Properly, AIR (1961) SC 1316.
                                                                                               F
            With the above observation and following the above said Judgment in
     the case of Patel Roadways, we dismiss the special leave petitions accord-
     ingly.

     T.N.A.                                                          Petitions dismissed.
                                                                                               G




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