1. This is a defendants' appeal arising out of a suit for damages brought against the East Indian Railway Company. 126 bags of sugar were consigned to the plaintiff under two risk notes in form B, out of which 18 were found missing on arrival and two bags which did not belong to the plaintiffs were also tendered by the railway company, of which the plaintiff's munib refused to take delivery.
2. The plaintiff alleged that there was a wilful neglect on the part of the railway Company and that the plaintiff's packages having been lost he was entitled to damages as well as interest. The defence taken by the railway company was that there was no wilful neglect on their part and that it was a case of robbery from a running train and the company was, therefore, protected. The lower appellate Court has conceded in favour of the company that the burden of proving wilful neglect was on the plaintiff but held that the burden of proving a robbery from a running train was on the defendant company. It has held that them was no satisfactory evidence in this case to prove theft from the running train. As regards wilful neglect, it has found that the wagon in which the bags were loaded had no lock on it at all but a tin shackle' had been put on it, which could be broken by any instrument. It has further found that there have been many thefts on this line. The finding that there was no theft on the running train also led to the conclusion that the theft took place at a time when the train was not running but was standing at some station or in some yard. Having regard to all these circumstances, the learned Judge has recorded a finding that wilful neglect has been established in this case. In our opinion it is impossible to say that there was no legal evidence to support the finding. The finding is really a finding of fact, and must be accepted in second appeal: see Bindraban v. G.I.P. Ry : AIR1926All369 .
3. The learned Judge is quite right that, complete packages having been lost, the plaintiff is entitled to damages. It has not been argued before us that the interest allowed on the claim was not justified. The appeal is dismissed with costs, including in this Court on the higher scale.