Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 1318 of 1999
PETITIONER:
ECONOMIC TRANSPORT ORGANISATION ETC.
RESPONDENT:
DHARWAD DISTT. KHADI GRAMUDYOG SANGH ETC.
DATE OF JUDGMENT: 31/03/2000
BENCH:
M. JAGANNADHA RAO & M.B. SHAH
JUDGMENT:
JUDGMENT
2000 (2) SCR 888
The following Order of the Court was delivered :
The petitioner is a common carrier govered by the Carriers Act, 1865. It
contends that under Section 14(l)(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 party and hence the burden of proof is on the complainant. It is
contended that Section 9 of the Carriers Act which ’imposes burden on the
defendant or the common carrier to prove absence of negligence cannot
therefore be applied so as to shift the onus to the carrier to prove
absence of negligence.
In view of the recent Judgment of this Court dated 28th March, 2000 in
Patel 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 the
insurer. It was held mere that Section 9 of the Carriers 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 Carriers 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 14(l)(d) of the Consumers Protection Act had to be understood
in that light and the burden of proof gets shifted to the carriers by the
application of the legal presumption under the common law. Section 14(l)(d)
has to be under-stood in that manner. The complainant can discharge the
initial onus, even if it is laid on him under Section 14(l)(d) of the
Consumers Protection Act, by relying on Section 9 of the Carriers Act. It
will therefore be for the carrier to prove absence of negligence. It has
been held La like circumstances that a defendant in a suit on the basis of
a negotiable instrument can discharge the 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 Property, AIR
(1961) SC 1316.
With the above observation and following the above said Judgment in the
case of Patel Roadways, we dismiss the special leave petitions accord-
ingly.