Nesargi, J.:— The appellant in this appeal is defendant-1. The respondent is the plaintiff.
2. The facts held proved in this appeal are as follows. On 23-12-1970 the plaintiff consigned parcels consisting of pure silk Chiffon plain and printed materials in running length to Midland Bank Limited, No. 129. New Bond Street, London W. 1 and intended for a business firm by name Rubane De Pairs Limited, No. 39-A, Maddox Street, London W1, to defendant-1 for purpose of delivery for carriage by Air. The appellant-defendant-1 is a Corporation established under the Air Corporation Act, 1953. The parcels were received by defendant-1 on 23-12-1970. Defendant-1 issued the requisite Aid Bill marked Exhibit P-2. The value of the goods delivered for carriage was Rs. 12,606. The said parcels were lost, i.e, they were not at all delivered to the consignee in London.
3. The plaintiff filed the suit for recovery of Rs. 15,843-65 calculating the same taking into consideration of the value of the goods lost at Rs. 12,606/- and current interest at 6 percent per annum from the date of suit. This also includes legal notice charges of Rs. 250/-. The Lower Appellate Court has decreed the suit of the plaintiff in full.
4. The main defence of defendant-1 is that the plaintiff had not declared the value of the goods under Exhibit P-2 and therefore he was not entitled to a decree for an amount more than 250 francs per kilogram in view of the earlier part of the provision in Rule 22(2) in the First Schedule to (The Indian) Carriage by Air Act, 1934 (hereinafter referred to as the Rules.)
5. The Lower Appellate Court has held, in response to an argument that the plaintiff was not entitled to the benefit of the provision in Rule 25 of the Rules as he has not averred and pleaded ‘wilful misconduct’ on the part of defendant-1, that the pleading contained in paragraph 12 of the plaint did constitute sufficient material which showed it to the contrary.
6. The undisputed fact is that the said parcels were consigned to defendant-1 appellant for carriage by Air to London and delivery to the consignee, but defendant-1 lost the parcels. The plaintiff has averred these facts in the plaint.
7. Sri S.G Bhagavan, learned Advocate for the appellant defendant-1, vehemently argued that such wilful misconduct must be averred and pleaded in the plaint, in the absence of which a decree cannot be passed in favour of the plaintiff.
8. I am unable to accept this argument because what amounts to wilful misconduct is not a fact that has to find a place in the plaint. The provisions of the Code of Civil Procedure take out any arguments from the ambit of the pleadings. Only facts are required to be pleaded. Whether the averred facts are proved and the proved facts amount to wilful misconduct would be a matter of argument. When law says that no argument shall form part of pleadings, this reasoning of Sri Bhagavan has to be rejected.
9. Sri Bhagavan nextly argued with all earnestness that the burden of proving wilful misconduct is on the plaintiff and it is a burden difficult to discharge. He relied on the passage appearing in paragraph 493 in the book Shawcross and Beaumont Air Law and further argued that it is not enough for the plaintiff merely to show that defendant-1 is unable to account, in this case, for the loss.
10. When the plaintiff has come to Court, the burden must initially lie on him to prove the facts on the basis of which the argument that defendant-1 has committed wilful misconduct so as to be liable to pay the full amount claimed by him. There can be no gainsaying of this position in law, but it is the initial burden that the plaintiff has to discharge. If he discharges the initial burden satisfactorily, the burden shifts on the defendant particularly in view of the provisions in Rules 22(2) and 25 of the Rules.
11. Rule 22(2) reads as follows.
“In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will he liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value to the consignor at delivery.”
Rule 25 of the Rules reads as follows.
“(1) The carrier shall not be entitled to avail himself of the provisions of this Schedule, which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct.
(2) Similarly, the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.”
12. The least that was reasonably expected from defendant-1 was to carry the parcels by Air and deliver the same to the consignee in the very condition they were entrusted to defendant-1 for carriage to London. He has failed to do so. All the facts that were in the possession of the plaintiff and could, in fact have been possessed by the plaintiff have been placed by him before the Court. They have been satisfactorily proved also. Therefore, it logically takes me to only one conclusion, that is, that defendant-1 has committed misconduct. Now it is to be seen whether in the opinion of this Court, this misconduct is ‘equivalent to wilful misconduct’ within the meaning of Rule 25(1) of the Rules. It would be unreasonable to expect the plaintiff, under the facts and circumstances of the case, to prove to the hilt that defendant-1 wilfully committed the misconduct. Therefore, the question is whether this misconduct can be, in the opinion of this Court, held to be equivalent to wilful misconduct. It is in this context that the stand taken by defendant-1 and the facts put and proved before the Court by defendant-1 are to be considered and weighed. Defendant-1 has nowhere set out how the loss of the parcels came to occur. That shows that defendant-1 was not in a position to place those facts before the Court. I wish to make it clear at this juncture that the question whether the element of intention of defendant-1 creeps in, in understanding the word ‘wilful’ used in the context under consideration may not arise. It was a contract entered into between the plaintiff and defendant-1. The main terms of the contract were that the plaintiff was to pay charges for the carriage and defendant-1 was to carry the parcels safely and deliver them to the consignee at London. The plaintiff has paid the charges. Defendant-1 has failed to deliver the parcels to the consignee, but on the other hand, he has lost them. Whether defendant-1 intended to lose the parcels is out of question. The fact that he has lost is, by itself, misconduct and under the facts and circumstances particularly in the absence of any material placed by defendant-1 to the contrary, the Court has to reach the conclusion that the loss has been caused by defendant-1 for no reason. In my considered opinion the further conclusion that follows is that the misconduct on the part of defendant-1 is equivalent to wilful misconduct. When that is so, defendant-1 is not entitled to the protection afforded to him by Rule 22(2) of the Rules.
13. In view of the foregoing reasons, this appeal fails and is dismissed with costs.