1. This is an application in revision arising out of a Small Cause Court matter. The plaintiff was the consignee of 126 bags, which were loaded at Kidderpur station and were despatched to Cawnpore. The waggon admittedly arrived at Cawnpore on the 27th of December, 1921, and the seals on the waggon were found intact. As the railway company had many other waggons to unload, this waggon was put on a siding and remained there for two days. On the 29th of December it was reported that the seals on one side of the waggon were broken. When the contents were checked, it was discovered that six bags were missing. After a lengthy correspondence, which came to nothing, the plaintiff instituted the present suit to recover damages for the loss of the bags.
2. The railway company took several pleas in defence, but three main issues were framed by the trial court. The first was whether the risk-note absolved the defendant company of all liability or not. The second was whether the goods were stolen at Cawnpore yard and whether the risk-note (form B) applied and whether the defendant company was guilty of wilful negligence or not. And the third was to what money the plaintiff was entitled.
3. The learned Judge of the Small Cause Court found these issues in favour of the plaintiff and granted him a decree. The defendant company has come up in revision, and on its behalf it is urged that the findings of the lower court are quite insufficient and further that the burden lay on the plaintiff to prove that there was either a wilful neglect of the company or theft by or on account of the wilful neglect of its servants.
4. I am bound to concede that under the contract which took the shape of the risk-note (form B) a prima facie burden lay on the plaintiff to prove neglect or theft of the kind mentioned therein. I agree that a mere proof of the loss of the goods would not be sufficient to entitle the plaintiff to a decree. This was the view expressed by a Bench of this Court in the case of East Indian Railway Co. v. Nathmal Behari Lal (1917) I.L.R. 39 All. 418 and the same view has prevailed in other High Courts also. I do not, however, take that rule to mean that in. no case can the burden of proof be shifted to the defendant. It is obvious that the evidence, if any, of wilful neglect or negligence is within the special means of knowledge of the railway company, and it is ordinarily very difficult for a plaintiff to establish that the loss was due to the wilful neglect of the company. Nevertheless, I concede that under the terms of the contract the burden is prima facie on the consignee. But I am of opinion that where certain circumstances have been established, either by direct evidence produced by the plaintiff or by the cross-examination of the witnesses for the defendant, from which circumstances wilful neglect or negligence can be inferred, the burden must then be shifted to the defendant company. Such circumstances coupled with the patent fact that the packages have been lost, may justify a court to hold that the burden has been discharged.
5. As to the case of East Indian Railway Co. v. Nathmal Behari Lal (1922) 1 A.C. 178 (188), referred to above, it is to be noted that the only circumstance which the plaintiff had there proved was the fact that the goods had been despatched and on arrival of the train in Cawnpore the seals of the doors of waggons were found to have been broken and six bags of sugar found missing. The learned Judges were doubtful whether it was not a case of theft from a running train.
6. In a recent case decided by the House of Lords, namely, H.C. Smith Ld. v. Great Western Railway Co. (1922) 1 A.C. 178 (188), it was laid down that the burden of proving in the first instance that the loss sustained arose from the wilful misconduct of the company's servants was thrown upon the trader. In that case also all that the plaintiff was able to show, as will appear from the remarks on that page, was that he had proved the delivery of the goods to the railway company's servants, and he put in evidence subsequent correspondence between himself and the railway company which suggested that the company was very reluctant to supply information to the plaintiff. On behalf of the plaintiff it 'was urged by his counsel that the wilful misconduct on the part of the company's servants must be inferred from the subsequent correspondence. Their Lordships did not accept that contention and found that the burden of proving wilful neglect had not been discharged.
7. In the present case I find that the learned Judge of the Small Cause Court had before him a clear issue as to the wilful negligence of the company. In the course of his judgment he has pointed out that the yard where the waggon was kept was a very large one and that its wall on the jungle side was broken at several places at the time when the goods were stolen. He has commented on the fact that the railway company took two days to unload the goods after their arrival at the station. Having considered these circumstances, he remarks: 'If the goods are lost on account of the railway company's not making proper arrangements, the railway company is liable.' Further on, he remarks that it was clearly not a case of theft from a running train. In view of these findings I am unable to hold that the judgment of the learned Judge of the Small Cause Court is wrong. There were certain circumstances before him from which it was open to him to infer that proper arrangements had not been made by the railway company, and that, therefore, there was wilful neglect. He was entitled, therefore, to hold that the burden had been discharged. In view of this I am unable to interfere. The application is rejected.