HARAKCHAND HEMCHAND BHATIA Vs. SECY. OF STATE

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts of the case giving rise to this application for revision are these: On 1st April 1925, a consignment of 40 bags of sugar was booked from Wadi Bunder station, under risk notes in forms A and B to be delivered to the plaintiff at Akola. The plaintiff, however, received only 33 bags out of the aforesaid consignment and he, therefore, brought the suit, in the Small Cause Court, Akola, to recover from the defendant Railway Company Rs. 245-12-0 representing the damages sustained by him on account of the non-delivery of the seven bags. The defence was that the Railway Company was fully protected against the plaintiff's claim under risk-dote forms A and B under which the consignment was booked. The first issue framed for trial was: Whether the seven bags of sugar (weighing 15 mds.) in question has been lost owing to wilful negligence of the defendant company?

(2.) NONE of the parties having led any evidence, the issue was decided against the plaintiff and his claim dismissed. On revision Kinkhede, A.J.C., remanded the case for retrial holding that the defendant company must, in the first instance, discharge the burden that lay upon them under the principle enunciated in G.I.P. By. Co. v. Jesraj Patwari A.I.R. 1928 Cal. 65 of proving that there has, in fact, been a loss of the goods and that the same are no more in the control of the Railway Administration. It was further remarked in the order of remand that: It is hardly necessary to point out that that it is only after the loss is proved by the 'defendant company that the burden of proving " wilful neglect " as denned by their Lordships of the Privy Council in the recent case of Ardeshir Bhieaji Tambole v. G.I.P. By., A.I.R. 1928 P.C. 24, will be shifted to the plaintiff.

(3.) AFTER remand four witnesses were examined by the Railway Company all of them are their servants who had to deal with the plaintiff's consignment in siquestion. Their evidence proved that the whole of the plaintiff's consignment and other goods intended for Akola were loaded at Wadi Bunder in waggoa No. 8314, that it was closed and sealed according to the prevailing practice, that at Nandgaon one of its doors was discovered broken open on one side and seven bags were found missing, and that the waggon was resealed and directed to Akola where on arrival the same shortage in its contents was noted. It was also proved that the missing goods were not in possession or control of the defendant company. The plaintiff did not lead any evidence to show that the loss was due to the "wilful neglect" of the Railway Company. The lower Court, therefore, again dismissed the plaintiff's claim and the plaintiff has again come up to this Court on revision.