BHOLA NATH Vs. BBAND CIRAILWAY

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiffs Bhola Nath and Shimbhu Nath, trading as the firm of Banarasi Das, against the E.I. Ry. Co., (and another railway company) for non-delivery of a parcel of sandal wood oil of the value of Rs. 997-9-0. The defence of the railway company was that the company was protected from liability under a risk-note in the form known as risk-note Y and also by the provisions of Section 75, Railways Act.

(2.) The trial Court (Munsif of Kanauj) held that the question whether the railway company was protected from the consequence of the loss of the consignment by the terms of the risk-note or by the language of Section 75, Railways Act, did not arise, because the suit was one for non-delivery and the railway company had failed to prove loss. The Court, however, alternatively held that, if proof of loss be assumed, the railway company was not protected either by the risk-note or by the terms of Section 75, for certain reasons into which it is not necessary to enter in this appeal.

(3.) In appeal the Subordinate Judge differed from the first Court on each of the above three findings. As regards the finding that the railway company had failed to prove loss the remark of the appellate Court is that the loss of the consignment in transit "is to be undoubtedly inferred and is also sufficiently proved."