SOUTH INDIA RY CO Vs. SPRSNARAYANA IYER

JUDGEMENT

(1.) This Revision Petition arises out of a Small Cause Suit in which the respondent, the consignee of a bale of cotton thread entrusted for transport to the South Indian Railway Company, sued the Company for Rs. 470 damages for the loss of the said bale in transit. The bale was entrusted to the Railway Company on 2-4-1919. Nothing has been heard of it since and there can be no possible doubt that it must be treated as lost. The loss of the bale is the basis of the suit.

(2.) The liability of the company has to be determined with reference to a special agreement Exhibit I entered into between them and the consignor at the time of the despatch of the bale. This provides that in consideration of the carriage of the bale being at a lower rate the consignee (under whom, of course, plaintiff claims) has no right EO compensation for loss of the goods except in the event of wilful neglect of the railway administration or theft by or wilful neglect of its servants during transit. It is further provided inter alia that a robbery from a running train does not constitute wilful neglect. This question of the liability of the Railway Company has been dealt with by the Subordinate Judge in paragraphs 4 and 5 of his judgment. The issue framed is this: Whether the bale in question was lost by theft while the train was running and whether the defendant company took the necessary steps to prevent such a risk?

(3.) The issue seams to me to have been very badly drafted because there are really two distinct questions involved, the burden of which is not on the same side in each case. Under the terms of the agreement the burden of proving neglect on the part of the company lies on the plaintiff as explained by Kumaraswami Sastri, J., in P. Albuquerque and Sons V/s. S.I. Railway 1922 Mad. 231. It is open to the company to say that the bale was lost by theft while the train was running, in which case, they are, as a matter of course, exempted from liability; but the burden of proof on this point lies on the Railway Company. The issue framed by the Subordinate Judge does not cover the first point at all. He has set himself simply to consider whether the Railway Company has shown that the bale was lost by theft from a particular wagon number 1897 during transit between Perundurai and Erode. He has laid down the extraordinary proposition that even if the bale was so stolen, it will not be theft from a running train if the thief got into the wagon before the train started, a proposition which seems to me to have no foundation; and his arguments on the evidence relating to the loading of the bale in the particular wagon specified seem to me to be most inconclusive. I cannot accept the finding such as it is and must call for a specific finding from the Subordinate Judge on the following two issues: (i) Was the suit bale lost in consequence of the wilful neglect of the Railway administration or theft by, or wilful neglect of, its servants, transport-agents or carriers? (ii) Was it lost by robbery from a running train within the meaning of Ex. I?