1. This second appeal arises out of a suit brought by the plaintiffs Bhola Nath and Shimbhu Nath, trading as the firm of Banarasi Das, against the E.I. Ry. Co., (and another railway company) for non-delivery of a parcel of sandal wood oil of the value of Rs. 997-9-0. The defence of the railway company was that the company was protected from liability under a risk-note in the form known as risk-note Y and also by the provisions of Section 75, Railways Act.
2. The trial Court (Munsif of Kanauj) held that the question whether the railway company was protected from the consequence of the loss of the consignment by the terms of the risk-note or by the language of Section 75, Railways Act, did not arise, because the suit was one for non-delivery and the railway company had failed to prove loss. The Court, however, alternatively held that, if proof of loss be assumed, the railway company was not protected either by the risk-note or by the terms of Section 75, for certain reasons into which it is not necessary to enter in this appeal.
3. In appeal the Subordinate Judge differed from the first Court on each of the above three findings. As regards the finding that the railway company had failed to prove loss the remark of the appellate Court is that the loss of the consignment in transit 'is to be undoubtedly inferred and is also sufficiently proved.'
4. The contention of the appellants' counsel is that there was no evidence on which the lower appellate Court could come to a finding in favour of the railway company that there was loss as distinguished from mere non-delivery. The lower appellate Court has not particularized the evidence on which it relied. Looking at the record the only evidence on which it could possibly be suggested that the railway relied to prove loss appears to be that of the assistant parcel clerk at Howrah. His evidence shows that the consignment which had come from Kanauj via Cawnpore was entered in the list of the parcels (or goods) on a particular train and that it was not on that train when it arrived. There is evidence that the consignment safely reached Cawnpore station from Kanauj. The clerk mentioned has admitted that sometimes goods are mentioned in the list sent with the train and yet are not put on the train at the starting or junction station. The clerk also says that he informed the Cawnpore railway people by telegram of the non-arrival of the consignment at Howrah. There is, however, no evidence to show that any search was made at Cawnpore for the goods or any checking of other train lists in order to exclude the possibility of the consignment having been missent elsewhere, a possibility which the clerk above mentioned has affirmed. In these circumstances we cannot find any evidence on which the lower appellate Court was justified in holding, as against the trial Court, that the consignment had been lost. We concur with the decision of a Judge of this Court in E.I. By v. Firm Kishan Lal Tirkhamal A.I.R. 1924 All. 7, that where a party sues the railway on the ground of non-delivery it is necessary for the railway to give some evidence of loss before they can meet the claim by pleading that non-delivery was due to a loss for which the railway company was not responsible. We find in this case that the railway failed to sustain this burden. It is not necessary to go with detail into the question whether, if loss had been proved, the railway would have been exempt. We may state, however, that we were disposed to hold that on the facts proved the railway would have been exempt both under the risk-note and under the terms of Section 75, Railways Act.
5. Accordingly we allow this appeal, restore the decree of the first Court and allow the plaintiffs costs in the lower appellate Court and in this Court.