KHAIRATI LAL BABOO LAL Vs. BBAND CIRY

JUDGEMENT

(1.) This is an application in revision, or rather under Section 25, Small Cause Courts Act. The plaintiff claims for the loss of two bales of goods said to contain dhotis and other cloth goods. The weight of each bale is said to be roughly 4 maunds. The size, therefore, would be considerable, and each bale would require two or three men at the very outset to unship and carry if they used their hands only. These are fundamental and admitted facts in the case, which the learned Judge has overlooked. The goods were dispatched from Carnac Bridge, Bombay, to Agra Fort. The rights of the parties are governed by Risk-note H which, as everybody knows, is a new form recently introduced in the railway administration. It provides that the railway shall be held free from all responsibility for loss except upon proof that such loss arose from the misconduct of the railway administration's servants; provided that in the following cases: (hero we only quote the language appropriate to this case.) Non- delivery... of the whole of one or more packages forming part of a consignment... 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 cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.

(2.) It is to be regretted that both the pleaders for the plaintiff and the learned Judges themselves seem to have got into the habit of failing to confine themselves to the language of the risk-note. When the rights of the parties are governed by a written document, it is essential to study and to follow the terms of such document just as it is necessary, when a Court is administering the sections of a Code that it should study the exact language of the section before troubling itself about decided cases or general considerations. In this case, as in many others of the same kind, there are allegations about negligence. That is not the question under this risk-note. One principle to be borne in mind as a member of this Bench pointed out in a recent case of the same kind, is that the less the evidence of negligence of servants, that is to say, the more careful the railway arrangements may be, the stronger the inference of misconduct against the railway administration, if the goods have disappeared in spite of the exercise of due care, because if the custody and care of the goods is of a high order, it is impossible for a trespasser to remove them without the connivance of the diligent servants.

(3.) The learned Judge in this case appears to have taken too narrow a view as a consequence of ignoring the fundamental facts, to which we have already referred, and the terms of the risk-note. We will now refer to some additional circumstances. The wagon, in which the goods were carried, was sealed and rivetted in the usual way. It arrived at Agra Fort intact. Owing to the necessities of train management and shunting, the wagon had to go on beyond its destination to the other side of the river to a station called Agra East Bank. There is no objection to that. The railway cannot be criticized or held guilty of misconduct, merely because they have to regulate their trains and wagons in the most convenient method. In the case of this consignment it involved keeping the wagon in the yard at Agra East Bank after arrival and sending it back next morning to Agra Fort. When the wagon arrived next morning at Agra Fort, one seal was found tampered with, and the two bales were missing. It is, therefore, quite clear that the bales were removed from the wagon during the night probably when the wagon was stationary in the yard awaiting its return to Agra Fort.