FIRM HIRALAL GOURISHANKAR Vs. GOVERNOR-GENERAL IN COUNCIL

JUDGEMENT

(1.) IN this case the plaintiff had booked three bales of saris from Kolhapur to Nagpur under Risk Notes A and B. When the consignment arrived at Nagpur, it appeared that some saris had been extracted from one of the bales. Therefore the plaintiff claimed open delivery which was given. On such delivery it was found that saris worth Rs. 137-2-6 had been missing from the consignment. The plaintiff sued the railway company for damages in respect of this loss. The trial Judge dismissed the suit holding that in view of Risk note A, the plaintiff could recover only on proof of misconduct on the part of the railway administration's servants and no evidence having been given on the side of the plaintiff, no infer. once of misconduct could be made.

(2.) AT the trial the plaintiff went into the witness-box and stated that he had no specific proof of misconduct. On behalf of the defendants the only witness examined was the Station Master of Nagpur (D.W. 1) He stated that the packages appeared slack and slightly loose and the plaintiff, therefore, claimed open delivery and it was given in his presence. He also stated that there was no report from any intermediate station in respect of this package that it had been tampered with.

(3.) THERE is no doubt that though under Risk Note B the plaintiff was entitled to hold the Railway administration's servants responsible for damages due to other causes also, in view of Risk Note A executed by him, be has undertaken to leave such responsibility on the Railway administration for the misconduct on the part of the Railway administration's servants. The burden of proving misconduct is no doubt on the plaintiff but the question is whether in view of the conditions agreed to in Risk Note B, the plaintiff would still insist upon the Railway administration to disclose how the consignment was dealt with during all the stages of the journey in order that he may be able to prove misconduct as an inference from the facts so disclosed. In this case the plaintiff has stated that he himself could not produce any : proof of misconduct.