A R NARAYANA AIYAR Vs. SIRYCO LTD

JUDGEMENT

(1.) Two questions have been raised on this petition. First, whether the burden of proof is on the consignee or the consignor under the risk note, Form H. Second, whether the incidence of the burden of proof is affected by Section 76 of the Indian Railways Act.

(2.) We deal first with Section 76. We have not been shown any case in which there is a special contract or risk note in question and in which Section 76 has been applied. Reference has been made to Nanku Ram V/s. The Indian Midland Railway Co. (1900) 22 All. 361, and Sesham Pattar V/s. L.S. Moss (1894) 17 Mad. 445. But it is not clear that in either of these eases there was any risk note or was anything, on which it could be said that a question of the effect of a special contract apart from the ordinary law was raised.

(3.) Turning to the incidence of the burden of proof, we find that in such a case as the present, authority seems to be dearly against the petitioners. Ghelabhai Punsi V/s. The E.I. Railway Co. (1921) 45 Bom. 1201, relied on by and referred to in the lower Court's judgment is open to question, because it is founded very largely on the decision in Curran V/s. Midland Great Western Railway Co. of Ireland [1896] 2 Ir. Rep. 183 and that decision has been regarded with suspicion in the recent case, H.C. Smith, Ltd. V/s. Great Western Railway Co. [1922] A.C. 178. More particularly the former can, in our opinion, be distinguished in any event from the present case on the ground, on which Lord Buck-master was disposed to distinguish it from the case before the House of Lords, with reference to the nature of the property in question. For the bags of rice lost by the plaintiffs before us more closely resemble the boots referred to in the English Case than the pigs referred to in the Irish. The form of contract in question in the case before the House of Lords was, if anything, however, worded more adversely to the Railway Company than the form now under discussion and yet the conclusion was clear that the burden of proof was entirely on the plaintiff. A similar conclusion had been reached in India in East Indian Railway Co. V/s. Nathmal Behari Lal (1917) 39 All. 418, and East Indian Railway Co. V/s. Nilkanta Roy (1914) 41 Cal. 576, which no doubt has been dissented from by this High Court, in Madras & Southern Mahratta Railway Co. V/s. Subba Rao (1920) 43 Mad. 617, but only on another point not now under consideration. In accordance with those authorities we decide for the defendants and dismiss the revision petition with costs.