1. This revision raises a question of the liability of a Railway Company in respect of goods consigned tinder Risk Note B. In this Form of Risk Note the consignor, in view of reduced rate of freight, agrees to hold the Railway 'harmless and free from all responsibility for any loss, destruction or deterioration or damage to the said consignment from any cause whatever except for the loss of a complete consignment or of one or more complete packages...due either to the wilful neglect of the Railway Administration or to theft by, or to the wilful neglect of its servants...(with a further proviso) that wilful neglect shall not be held to include fire, robbery from a running train or any other unforeseen event or accident.'
2. One hundred and twenty-six bags of sugar were consigned to the plaintiff under a Risk Note in this form. On taking delivery the number was found to be short by three bags. The plaint alleges that, in consequence of this short delivery, the plaintiffs have suffered loss to the amount claimed. In defence, the Railway Company setup the Risk Note and they further alleged that in this case the loss of the bags was due to theft from a running train. It has been held that, in this connection, the terms 'robbery' arid 'theft' are equivalent Great Indian Peninsular Railway Co. v. Bhola Nath-Debi Das 70 Ind. Cas. 854 : 45 A. 56 : (1923) A.I.R. (A.) 79. The case was tried in the Small Cause Court. The view by the learned Judge o f the Court below was that as the plaintiff did not allege in his plaint that the goods were lost but merely that he had not received them, it lay on the defendants to prove loss of the goods, and it was only after they had proved this that the plaintiff could be required to prove that the loss was due to a cause for which the Railway Company would be liable. In support of this view the learned Judge relies on the case of Ghelabhai Punsi v. East Indian Railway Co. 63 Ind. Cas. 241 : 45 B. 1201 : 23 Bom. L.R. 525, though tie learned Judge prefers to cite the case from some volume of private reports. The same view was taken by Lindsay, J. in Secretary of State for India in Council v. Firm Jiwan & Abdullah 71 Ind. Cas. 609 : 21 A.L.J. 220, in a case in which a consignment of food had rotted owing to delay in transit and the plaintiff had suffered loss in consequence. The delay was found to be due to the wilful neglect of the Railway Company. The goods were consigned under Risk Note B, as in the present case. The Risk Note gave the Railway absolute protection in respect of damage to the goods. It did not protect 'them against loss if the loss was due to the wilful neglect of their servants, the learned Judge held that, 'loss' meant loss by the Railway Company and not loss to the plaintiff. On this view the plaintiff is entitled to a decree in the present case. In that case the plaintiffs were suing for something which was prima facie within the protection afforded by the Risk Note, namely, damage to the goods. Therefore, in the absence of proof of loss the suit failed. Here the plaintiffs are suing for something which was prima facie within the protection afforded by the Risk Note, namely, damage to the goods. Therefore, in the absence of proof of loss the suit failed. Here the plaintiffs arc suing for something which is prima facie outside the protection afforded by the Note, namely, breach of the contract to deliver. In the absence of evidence of loss the plaintiff is entitled to succeed. No doubt, a different view has been taken by the Punjab High Court in Hill, Sawyers & Co. v. Secretary of State 61 Ind. Cas. 926 : 2 L. 133 : 3 I.L.J. 291, but the Subordinate Judge was bound to follow the rulings of this Court.
3. Reliance is placed by the respondent on East Indian Railway. Co. v. Nathmall 39 Ind. Cas. 130 : 39 A. 418 : 15 A.L.J. 321 and Smith, Limited v. Great Western Railway Co. (1922) I A.C. 178 :91 L.J.K.B. 423 : 27 Com. Cas. 247 : 38 T.L.R. 359. In both these cases the loss of the goods was admitted by the plaintiffs. In the former case the goods were missing on the arrival of the train at its destination. In the English case it is specifically stated in the last paragraph of Lord Wrenbury's judgment that the plaintiff alleged the loss of the goods. The argument turned on whether wilful negligence could be assumed from the mere fact of non delivery. Moreover, the protection given to the Railway was in wider terms and included delay or detention.
4. For the above reasons I am unable to accept this revision, which I accordingly dismiss with costs.