1. These three connected appeals have been heard together. They relate to claims by different plaintiffs against the G.I.P. Railway Company. In this judgment we refer in particular to the facts of the Second Appeal (No. 1225 of 1922), but the facts of the others are admittedly ON all fours with them and the points for decision are the same.
2. On 26th November 1920 a bale of cloth was delivered to the G.I.P. Railway Company at Victoria Terminus, Bombay, for despatch to Railway Station Yusufpur on the B. and N.W. Railway. The goods were never delivered. It is also admitted that they never reached the B. and N.W. Railway. A Risk Note in form B. was executed in respect of this consignment by one Hari Gobind whom the learned District Judge finds to be the person who delivered the goods to the Railway Company. The learned Judge finds that the loss of the goods was due to theft from a running train, that the guard of the train knew that the theft was being committed but that he is not shown to have been negligent in not stopping the train in order to prevent the theft or recover the goods.
3. The two questions which have been argued before us are:
1. Whether the Risk Note was validly executed within the meaning of Section 72 of the Indian Railways Act.
2. Whether the Railway Company is protected by it.
4. As to the former point Section 72 provides that the note must be signed by or on behalf of the person sending or the person delivering the goods to the Railway Company. In this case Hari Gobind purported to sign on behalf of the sender R. Ramdeo. The learned Judge finds that he is not proved to have been R. Ramdeo's agent, but he finds that he was the deliverer of the goods to the Railway Company. This is a finding of fact which we must accept and it is sufficient to bring the Note within the terms of Section 72.
5. If the decision of the second issue depended on our being able to accept the learned Judge's view that there was no negligence on the part of the Railway Company's servants we might have difficulty in upholding it. We find, however, that under the terms of the Risk Note the Railway is absolutely protected in case of robbery from a running train, which in this case is proved. It has been held in two cases of this Court, E.I.R. Co. v. Nathumal Behari Lal 39 Ind. Cas. 130 : 39 A. 418 : 15 A.L.J. 321 and G.I.P. Railway Co. v. Bhola Nath Debi Das 70 Ind. Cas 851 : 45 A. 56; (1923) A.I.R. (A.) that as used in Risk Note B the word 'robbery' is synonymous with 'theft'. It has been argued on behalf of the appellants that the Railway is not protected if the robbery was due to negligence on the part of the Railway Company's servants. We think that the form of Risk Note is not capable of this construction. A Risk Note in the first instance holds the Railway Company free from responsibility for any loss or destruction of or damage to the goods from any cause whatever. To this there is an exception, namely, that when loss of a complete consignment is due to one of three causes the Railway Company can be held liable. These three causes are:
1. Wilful neglect on the part of the Railway Administration.
2. Theft by the servants of the Railway.
3. Wilful neglect of the servants of the Railway.
6. There is, however, an exception to the exception in the shape of a further proviso which lays down that wilful neglect is not to be held to include fire, robbery from a running train, or any other unforeseen event or accident. Where, therefore, the plaintiff depends for his cause of action on wilful neglect on the part of either the Railway Administration or any of its servants he cannot succeed if it is shown that the loss of the goods was due to theft from a running train. This view of the Risk Note was at least impliedly taken in the second of the cases referred to above, namely, G.I.P. Railway Co., v. Bhola Nath Debt Das 70 Ind. Cas 851 : 45 A. 56; (1923) A.I.R. (A.) It is directly laid down in B.B. and C.I. Railway Company v. Ranchhodlal Chhotalal 52 Ind. Cas, 516 : 43 B 769 at p 773 : 21 Bom. L.R. 779. The material passage which is on page 773 is as follows:
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.
7. We think, therefore, that the decision of the lower Court is correct and dismiss all three appeals. In view of the fact that in our opinion there was gross negligence on the part of the G.I.P. Railway Company we allow to that Company no costs of the appeals. The other Railway Companies who have been impleaded in Second Appeals Nos. 1504 and 1507 of 1922 are entitled to their costs including in this Court fees on the higher scale.