Sri Newas Sitaram vs E.I. Ry. Co. and Another

Macpherson, J.—This is an application u/s 25 of the Provincial Small Cause Courts Act against the decree of the Small Cause Court of Patna dismissing, except in respect of an item immaterial for the present purpose, the suit of the petitioner for compensation for non-delivery of one bale of goods consigned from Bombay on the Great Indian Peninsular Railway to the petitioner at Patna City and not delivered to him by the East Indian Railway. The value of the bale was put at Rs. 393-12-0 and the rest of the claim of Rs. 472 was made up of expenses, railway freight, interest and loss of profit.

The goods had been sent under Risk Note B and the Court held that the plaintiff had failed to prove that the loss of the bale was due to the wilful neglect of the defendant Railway Company and further that the Company was under that Risk Note absolved from liability for the loss of the bale.

On behalf of the petitioner, it is contended by Mr. Shiveshwar Dayal, that the contract being admitted and also the breach thereof, the plaintiff''s suit can only be defeated by Risk Note B, that for the Risk Note to avail the plea of loss must be expressly taken and that as that plea was not taken, evidence of loss was not admissible. He would base this contention upon two rulings of this Court, The Great Indian Peninsular Railway Company Vs. Jitan Ram Nirmal Ram, , decided by a Division Bench and the East Indian Ry. Co. and G.I.P. Ry. Co. Ltd. Vs. Firm Sukhdeo Das and Another, , decided by a single Judge. To my mind, the contention is not sound since loss has been distinctly pleaded in paragraph 4 of the written statement presented on behalf of the defendant Company and that was also the interpretation put upon the paragraph by the plaintiff himself when leading evidence. Indeed, having regard to the fact that he filed Exhibit 5, a letter, wherein the Railway Company alleged loss and disclaimed negligence, no other position was possible to him. Accordingly, the second case cited is distinguishable since therein the defendant had not pleaded even by implication that the goods had been lost, while the plea of loss as contemplated by the Risk Note having been advanced on behalf of the defence, the first mentioned case far from being in favour of the present contention is against it; since it has been held therein that it is sufficient for the defendant Company to plead loss as contemplated by the Risk Note and it need not call evidence to satisfy the Court that the goods are still not in the Company''s possession. The evidence on the record as to loss was thus not inadmissible. This plea fails.

It is next contended by the learned Vakil that the petitioner is at least entitled to a remand for further consideration of the effect of the exception to the protection accorded by the Risk Note. He argues (1) that Exhibit 5, the letter of the Railway Company to the petitioner, states that the consignment which included the bale lost, proceeded in a wagon as far as Dildarnagar correctly, but there the wagon was found to have been broken into by thieves and no clue to the stolen property had been discovered by the Police; (2) that under the exception, read with the proviso thereto, theft (not being robbery from a running train) is not necessarily excluded from "the wilful neglect of the Railway Administration or ... the wilful neglect of its servants" in respect of which the Railway Company under the Risk Note still continues liable when a complete package of a consignment is lost; (3) that Exhibit 5 was not considered by the Judge in this connection, and (4) that if the Judge had directed his mind to the matter, he might have held, as other Courts have been known to hold, that the theft was due to the wilful neglect either of the Railway Administration or of its servants.

To my mind it cannot be inferred that Exhibit 5 was not considered in this connection. Moreover, though the second proposition is unexceptionable, it was for the plaintiff to prove that he came within the exception. It is not enough to say that theft may in law evidence "wilful neglect on the part of the Railway Administration ... or of its servants." The real question is whether any Court would be justified in holding, merely on the expression used in Exhibit 5, namely "broken into by thieves" and in the absence of further evidence, such as that the wagon which was ex hypothesi closed, and may even be taken to have been fastened or locked was negligently closed or fastened or was left altogether exposed and unguarded that wilful neglect was established. In my opinion such a finding would be unjustifiable. There is in the present case no such further evidence. The finding of the learned Judge is thus the only possible finding and a remand is contra-indicated.

The application is dismissed with costs.