HARAKCHAND Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) OUT of a consignment of sugar booked from Wadi Bunder on 1st April 1925, consisting of 40 bags, plaintiff got 33 bags only on 9th April 1925. The rest were not delivered. Hence he sued defendant Company for damages caused for non-delivery of his goods. The defence was that the Company was not liable because of the Risk Forms A and B and that the seven bags were lost in transit. Neither party adduced any oral evidence.

(2.) A perusal of the lower Court's decision, para. 2, will clearly show that the Court below has proceeded on an erroneous view as to the burden of proof in such a case. What the plaintiff alleged was a loss to himself caused by the non-delivery. He did not admit that the goods were lost to the Railway Administration. That was a matter within the special knowledge of the Railway Company and the latter had the burden of proving facts which would show that it had earned the protection of the risk-notes. The law on the point is very clearly set forth in the latest case of the defendant Company reported in G.I.P. Ry. Co. v. Jes Raj Patwari A.I.R. 1928 Cal. 65. Rankin, C.J., observes at p. 139 [of 55 Cal.] It 43 however, necessary for the Railway Company to get the benefit of this warranty, to show that the goods are lost, at least to show in the first instance that the goods are not then and there in the control of the Railway Administration, so that they might have been delivered to the proper consignee. In my judgment, therefore, on both propositions the necessity of showing that there has been a loss and that the initial burden of proof is on the Railway Company, the cases (referred to by him) have to be followed.

(3.) I do not think I need multiply any authorities.