SECRETARY OF STATE Vs. UPGLASS WORKS OF CHANDAUSI

JUDGEMENT

(1.) This revision raises a question of the liability of a railway company under the new form of risk-note H approved by the Government of India, Tinder Section 72 (2)(b) of the Indian Railways Act and published in the Gazette of India, part I, page 651 of the Gazette for 1924. The risk-note B and risk-note H are substantially identical both in the new and in the old form, so that rulings which apply to the one form are applicable to the other also. Risk-note B refers to a particular consignment, risk-note H to all consignments sent by a particular consignor under a common agreement.

(2.) The facts are very simple. The plaintiff consigned fifteen tons of coal under risk-note from Jayramdi No. 3 Colliery siding (Sitarampur station) to Bahjoi (O. & R, Ry.). At destination five tons were found to be short and only ten tons were delivered. The line being a Government line, the plaintiff Company sued the Secretary of State for the value of the shortage. The learned Judge of the Small Cause Court decreed the suit on the view taken in a number of authorities, of which East Indian Railway Company V/s. Kishan Lal Tirkha Mal AIR 1924 All 7 may be taken as an example, that "loss" means actual loss of goods by the railway company, and that where the plaintiff merely alleges short delivery, it lies on the railway company to give some evidence of loss before they can claim the protection of the risk-note. Ghelabhi V/s. East Indian Railway Company AIR 1921 Bom 443 is the leading case on the point.

(3.) All these rulings were based on the old form of risk-note. The learned Government Advocate contends that they are inapplicable to the new form. The main provision protecting the railway from responsibility for "loss, destruction of or damage to the said consignment" is the same in both cases, but the exception has been replaced by two provisos the language of which is materially different. The words "wilful neglect" have been replaced by the word "misconduct." Under the old form the burden of proving "wilful neglect" was in all cases on the consignor, though it might of course be proved by circumstantial evidence. In the new form there are two provisos which run as follows: Provided that in the following cases: (a) Non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid- down in the Tariff or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non-delivery is not due to accidents to trains or to fire, (b) pilferage from a package or packages forming part of the said consignment properly packed as in (a); when such pilferage is pointed out to the servants of the Railway Administration on or before delivery, the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was, in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct; but, if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.