MADRAS AND SOUTHERN MAHRATTA RAILWAY CO LTD BY ITS AGENT Vs. SMCPNALLATHAMBI CHETTI, ARATHNAVELU CHETTY AND CO, BY ITS SENIOR PARTNER AND MANAGER ARATHNAVELU CHETTY

JUDGEMENT

(1.) This Civil Revision Petition involves a question of some importance, namely, the interpretation and effect, with reference to the onus of proof, of the wording of the new Railway form risk note B.

(2.) The facts of this case, admitted for the purpose of the argument, are that the respondent consigned 184 bags of groundnut from Jalarpet to the Salt Cottaurs Railway Station on the petitioner's Railway, that these bags were loaded and conveyed in a single waggon, that the train on reaching Arkonam was shunted into a siding where it remained for four hours, that the seals were intact when the waggon reached Arkonam, but that, when the train was about to leave Arkonam, the Station Master noticed that the one seal had been tampered with and put on his own seal, and that, on arrival at the Salt Cottaurs, it was found that one of the bags was missing. It may be inferred, and is not disputed, that the bag was stolen from the waggon while it was in the siding at Arkonam.

(3.) The respondent sued the Railway Company for the value of the bag, and the District Munsif has given him a decree. He has given two reasons for that decision, (1) that it does not appear that anybody other than the employees of the Company had access to the waggon and its contents during the detention, and (2) that proviso (a) in the risk note, Exhibit 11, renders the Company responsible. The second reason is clearly wrong. Proviso (a) does not lay clown that the Railway Company is responsible without any proof, merely because a whole bag has been lost and the loss is not due to accident or fire. Proviso (a) and proviso (b) are both on the same footing, and subject to the procedure as to proof, which is laid down in the risk note Exhibit II. As to the first reason given by the District Munsif, there is no evidence on which the District Munsif relies for his conclusion, nor does he cite any, and it is certainly not a matter of legal presumption that no one but the employees of the Company could have had access to the waggon. The decision of the Lower Court is, therefore, not defensible on the grounds stated by it.