1. This is the appeal of Mathura Prasad, who having brought a suit against the Great Indian Peninsula Railway Company for the failure to deliver a bale of cloth alleged to be of the value of Rs. 1,529-12-6, lost his case both in the Court of first instance and on appeal before the District Judge. On the 26th February 1923 there was a decision in the Court of the Judicial Commissioner of Oudh, which is very similar to the case under appeal. The head-note stated that
there might be circumstances under which wilful neglect might be inferred from the fact that the steps taken to secure the goods against loss by theft were inadequate.
2. Subsequent to the appeal by the District Judge which was decided on the 26th May 1924, three other decisions of importance have bean published-one reported in B.N.W. Railway v. Firm Manorath Bhagat Dhian Ram : AIR1925All172 , secondly, the case of Firm Balram Das fakir Chand v. G.I.P. Ry. Co. : AIR1925All562 decided in March 1925 and finally a Full Bench case decided on the 29th April 1926 Bindraban v. G.I.P. Ry. Co. : AIR1926All369 . This case under appeal and all the four cases we have mentioned contain practically the same statements of fact namely, goods consigned with the company who obtained the protection afforded by risk-note B, the goods put into a van secured only by sealing, the goods reported to be in a sealed van at one station the sealing found to be broken at another and the goods missing. There are statements in these cases in which it was admitted that over a certain section of the line within a very few miles of the place where this theft in the case under appeal is alleged to have taken place, running train thefts were frequent. The facts as proved in this case were extremely simple namely, that goods alleged to be worth Rs. 1,529-12-6 were handed over on the 8th November 1920 to the railway company, that the railway company gave an invoice No. 136 and the railway receipt No. 2673-20 and that the consignor signed a risk-note, form B. Then came the evidence of the guard of the train who stated that at one station called Hisvahal the seals were examined and found, intact, but that at the next station Nandgaon the sealing of the particular waggon No. 6526 was found to be broken. Subsequent examination shows that the waggon which should have had 61 packages in it had in fact 60 only. No bale of cloth ever having been delivered to the plaintiff, it may fairly be assumed that it was that bale which was stolen from the railway. By reason of the Full Bench decision of Bindraban v. G.I.P. Ry. Co. : AIR1926All369 . we are bound to regard the expression 'robbery from a running train,' as not including a furtive theft. The real point now to be considered is the same as was judicially determined in the four cases we have mentioned, namely, whether an abstention on the part of the railway company as late as the year 1920 to avail themselves of any mechanical device to keep out thieves, was not in the circumstances of the thefts happening on the railway wilful neglect on their part. If a railway company chooses year after year merely to seal waggons, the position may come to this that if there are repeated thefts and the sealing proved by those thefts to be inadequate their continuance of that inadequate method may show a neglect on their part amounting to a wilful and determined neglect not to avail themselves of any other measures that may be open. That is the governing principle in our opinion under which the Oudh Rohilkhand Railway Company's case was decided by the Judicial Commissioner of Oudh and we are of opinion that the circumstances were such in the year 1920 as is shown by these cases and the evidence in this case that it was wilful neglect on the part of the railway company to consign goods on a journey from Bombay to Allahabad in a railway waggon without any other protection afforded to them than the mere sealing up. In one of the reported cases it is said that since the year 1921 a practice has come of locking waggons. Whether that be so or not we are satisfied that in 1920 some provision offering far greater security than the mere sealing up was essentially necessary. Under these circumstances we are of opinion that the appeal must be allowed and that the plaintiff is entitled to recover the damages which the Court of first instance was prepared to give him, i.e., Rs. 1,691, Rs. 1,546 being the value of the goods and Rs. 145 for loss of profit. He is also entitled to interest on that amount as from the 8th November 1920 down to payment.
3. We, therefore, give him a decree for Rs. 1,691 and interest at 6 per cent. thereon as from the 8th November 1920, down to payment. The plaintiff will have the costs of this appeal together with fees in this Court on the higher scale and will, of course, be entitled to have his costs in all the Courts.