Kumaraswami Sastri, J.
1. The goods were consigned under risk note form H, which saves the Railway Company from liability for loss destruction or deterioration of or damages to the consignment from any cause whatever except for the loss due either to the wilful neglect of the Railway administration or to theft by or to the wilful neglect of its servants etc.
2. The liability of the Railway Company is therefore not the general liability imposed on common carriers or imposed by Section 72 of the Railways Act. Under Section 72, the Company was entitled to contract themselves out of the provisions of the Act if the form of the contract was approved by the Governor-General in Council and there is nothing illegal in the consignor in consideration of the reduced rate charged agreeing to hold the company liable only on certain specified contingencies.
3. In such cases the onus of proving the fact necessary to bring the company within the terms of the contract and the liability imposed by it will be on the consignor. I need only refer to East Indian Railway Co. v. Nathmal Roy I.L.R. (1914) Cal. 576. Eas Indian Railway Co. v. Nathmal Behari Lal. I.L.R. 39 All. 418 B.B. & C.I. Ry. Co. v. Ranchhodlal Chhotalal I.L.R. (1919) 43 Bom 769. Jhunni v. Bombay Baroda and Central India Railway Co. (1915) 14 A.L.J. 396 where it was held that the onus lies on the person who alleges that the case fell within the exceptions mentioned in the risk note to prove the fact necessary to charge the company with liability. It has been argued for the petitioner that Section 106 of the Evidence Act applies and that as the facts which relate to the loss of the oil can only be in the special knowledge of the Railway Company the onus lies on them. Reference was also made to Seshan Pattar v. L.S. Moss. I.L.R. (1894) Mad. 445 Choutmull Odagur v. River Steam Navigation Co. I.L.R. (1897) Cal. 786 which was approved by the Privy Council in The River Steam Navigation Co. v. Choutmul Odagar I.L.R. (1898) Cal. 398 and India. General Steam. Navigation Co., v. Bhagwan Chandra Pal I.L.R. (1913) Cal. 716. These cases did not relate to the carriage of goods by a railway company under a special form or risk note exempting the company from liability except in certain specified cases. If in all cases of loss or destruction or deterioration of goods consigned, the onus will be on the company to prove how it came about, the special contract will be useless.
4. It is also argued that there was undue delay in the carriage of the goods. There was a delay of 40 days between the consignment and delivery. It is not shown that the delay was wilful. The consignment was in March 19J9 and the delay may well be due to want of rolling stock. It does not follow that because there was delay it was wilful. As there is no evidence to charge the company with liability under the terms of the contract the suit was rightly dismissed.
5. The Revision. Petition fails and is dismissed with costs.