Basil Scott, C.J.
1. The plaintiff's shipped on the Bombay, Baroda & Central India Railway some 23 bales of cloth under a Risk Note Form B from Ahmedabad to Calcutta. The cloth was loaded in a closed waggon which was sealed. It was the duty of the Guard to examine the seals at every station. He went round the train at Ankleshwar and gave a certificate that all was right. At Surat, the next station at which the train stopped, one of the doors of the waggon was found to be open and one of the plaintiffs' bales was missing. Some of the cloths from the bale were subsequently discovered to have been sold by an inhabitant of Mitali four miles on the Surat side of Ankleshwar. He was convicted and sentenced but at the trial there was no finding that any railway servant took any part in the theft of the cloths. Under the Risk Note, in consideration of a special reduced rate being charged, the consignor agreed to hold the Railway Administration harmless for any loss except for loss of a complete consignment or complete package due to the wilful neglect of the Railway Administration or to theft by or wilful neglect of its servants. Provided that wilful neglect was not to be held to include robbery from a running train.
2. The learned Judge after recording evidence observed that there was absolutely no evidence to prove that there was any theft from the train ; but no doubt the bale was stolen and the goods must have found their way out but there was no evidence to prove that the bale was lost whilst the train was running. He therefore held the defendants had failed to prove the theft from the running train and passed a decree for the plaintiffs for the amount claimed.
3. This judgment shows confusion as to the terms of the Risk Note.
4. In the absence of proof of wilful neglect or theft by the railway servants the Administration is to be held free from responsibility. If, however, neglect or theft by railway servants is proved the Administration will escape liability for loss if proof is given of robbery from a running train etc. The plaintiffs wish the Court to believe that there was wilful neglect or theft by railway servants ; it therefore lies on the plaintiffs under Section 103 of the Indian Evidence Act to give proof of the fact. This they have not done and no question is reached of robbery from a running train.
5. This conclusion accords with the decision of the Allahabad High Court in East Indian Railway Company v. Nathmal Behari Lal I.L.R(1917) All 418.
6. We set aside the decree and dismiss the suit with all costs on the plaintiffs.