MESSRS TOLARAM GIRDHARI LAL Vs. SECYOF STATE

JUDGEMENT

(1.) The plaintiffs, who are the appellants, made over two bars of silver to the East Indian Railway Company at Howrah for conveyance to Darbhanga. Only one bar reached its destination. The suit is for the value of the other. The defence of the Railway Company was that a risknote in form X was executed exonerating them from liability and, furthermore, that Section 75, Railways Act, bars the present claim. Furthermore, it was pleaded that in any case the Company had acted with that amount of prudence required of them as bailees and were therefore not liable for the loss of the bar of silver.

(2.) The facts are that the two bars of silver were loaded in a treasure van which was properly looked. The looks were intact when the wagon reached Burdwan where it was detected that a hole had been out in the floor of the wagon and one of the bars removed. It appears that the train had been held up outside the station at Chandarnagar on account of the hosepipe having burst. It had again stopped at Bandel station where the defective hose, pipe was removed. The Court of appeal below has held on the above facts that the Railway Company acted with that degree of prudence required of them as bailees of the goods. It has been argued before us that the sending of bars of silver in a van with a wooden floor constitutes negligence and that even if that be not so, the wagon containing the bars was not properly guarded during the stoppage outside Chandranagar station.

(3.) It is suggested that had the guard been alert during the stoppage outside Chandranagar station, the theft could not have been committed. There is no evidence that the theft did take place at Chandranagar. It is true that the guard, in a telegram which he sent reporting the loss of the silver bar, stated that the theft had taken place while the train was held up outside Chandranagar station. But it is quite obvious that this was merely the opinion of the guard who, so far as the evidence discloses, had no personal knowledge of where the theft took place; nor is there any evidence that the guard was negligent while the train was held up outside Chandranagar. The looks of the wagon had not been broken and there was no reason for him to suspect that any attempt was being made to cut a hole in the floor of the wagon.