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Judgment
Madhavan Nair, J.—The defendants, the M. & S.M. By. Co., Ltd. are the appellants. The second appeal arises out of a suit instituted by
the plaintiff for the recovery of Rs. 597 and odd being the price of a bale of yarn entrusted to the defendants and the amount of loss sustained by
him on account of the non-delivery of the bale at Chirala. The bale in question was sent from Salt Cotaurs to Chirala under Risk Note Form ""B.
The bale was loaded in a closed waggon which was sealed on both sides and its loss was discovered after the arrival of the train at Bitragunta
Railway Station. The District Munsif, holding that the loss of the bale was not due to the wilful neglect of the defendant company, or its servants,
dismissed the plaintiff''s suit. The Subordinate Judge held that the wilful neglect of the defendant Company was proved and reversed the decree of
the District Munsif.
It is clear from the authorities brought to my notice that the consignment having been made under a Risk Note Form ""B"" (Exhibit II), the burden
lies on the plaintiff to prove that the loss was due to the wilful neglect of the Railway Company or its servants, see Bombay Baroda & Central India
Railway Co. v. Ranchhodlal & Chhotalal & Co. (1919) 43 Bom. 769 and Smith Ltd., v. Great Western Railway (1922) 1 A.C. 178. It was faintly
argued by Mr. Ramdoss for the respondent that the defendant must prove that there was no wilful neglect on the part of the Railway
Administration or its servants; or no theft by the Railway servants, and reliance was placed on Section 76 of the Indian Railways Act, but no
authority directly supporting the argument was placed before me.
The only question, therefore, for determination in this case is whether the plaintiff has succeeded in proving that the loss of the suit bale was
caused by the wilful neglect of the Railway Company, or its servants. It has been argued by the appellant''s learned Counsel that there is no
evidence to prove that there was any wilful neglect on the part of the defendants. The two witnesses for the plaintiff do not refer to any wilful
neglect and in my opinion, the evidence of D.W. No. 3 relied upon by the plaintiff also does not show that the loss was caused by the wilful neglect
of the defendant Company. The Subordinate Judge is wrong in saying that it was the duty of the guard to cheek the seals of the waggon
immediately after the arrival of the train at every station. According to the evidence the seals ought to be checked at every station where the train
halts and the guard D. W. No. 3 says that he had done so. He says that he checked the seals of the suit waggon at Allwin Railway Station and
when the train reached Bitragnnta the seals checking watcher reported to him that the seal of one side of the suit waggon was broken and the door
on that side was open. D.W. No. 3 then went and inspected the waggon. As he suggests, the bale of the yarn might have been lest after he
checked the waggon at. Allwin Railway Station during its stay there for eight minutes; after checking, D.W. No. 3 had done whatever he was
bound to do and, before he proceeded to check the seals at Bitragunta be was informed by the seal-checking watcher of the fact that one of the
seals was broken. I do not think there is any evidence to support the finding of the Subordinate Judge that it was the wilful neglect of the Railway
Company that caused the loss of the plaintiff''s bale of yarn. Since there is no evidence to support the finding, I set aside the decree of the lower
Appellate Court and dismiss the plaintiff''s suit, with costs throughout.