1. This Civil Revision Petition involves a question of some importance, namely, the interpretation and effect, with reference to the onus of proof, of the wording of the new Railway form risk note B.
2. The facts of this case, admitted for the purpose of the argument, are that the respondent consigned 184 bags of groundnut from Jalarpet to the Salt Cottaurs Railway Station on the petitioner's Railway, that these bags were loaded and conveyed in a single waggon, that the train on reaching Arkonam was shunted into a siding where it remained for four hours, that the seals were intact when the waggon reached Arkonam, but that, when the train was about to leave Arkonam, the Station Master noticed that the one seal had been tampered with and put on his own seal, and that, on arrival at the Salt Cottaurs, it was found that one of the bags was missing. It may be inferred, and is not disputed, that the bag was stolen from the waggon while it was in the siding at Arkonam.
3. The respondent sued the Railway Company for the value of the bag, and the District Munsif has given him a decree. He has given two reasons for that decision, (1) that it does not appear that anybody other than the employees of the Company had access to the waggon and its contents during the detention, and (2) that proviso (a) in the risk note, Exhibit 11, renders the Company responsible. The second reason is clearly wrong. Proviso (a) does not lay clown that the Railway Company is responsible without any proof, merely because a whole bag has been lost and the loss is not due to accident or fire. Proviso (a) and proviso (b) are both on the same footing, and subject to the procedure as to proof, which is laid down in the risk note Exhibit II. As to the first reason given by the District Munsif, there is no evidence on which the District Munsif relies for his conclusion, nor does he cite any, and it is certainly not a matter of legal presumption that no one but the employees of the Company could have had access to the waggon. The decision of the Lower Court is, therefore, not defensible on the grounds stated by it.
4. Respondent, however, seeks to support the decree by alleging that the new form of risk note has shifted the onus of proof in cases like this, that the onus no longer lies on the consignor to prove 'wilful neglect' of the Railway Company, but that the onus lies on the Railway to prove absence of 'misconduct' on the part of its employees. He argues that the wording of the new note implies this, but I am quite clear that this is not so. What the note says is, 'The Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary, to give evidence thereof, before the consignor is called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.' I understand this to mean that the Railway Company may be called upon, before the suit is filed, to disclose to the consignor how the consignment was dealt with, and that, after the case comes into Court, it shall, if the Court, presumably moved thereto by the consignor, thinks it necessary, give evidence in Court as to how the consignment was dealt with, before the consignor is called upon to prove misconduct, but that if the Court does not think it necessary there is no obligation on the Railway Company to call evidence. The onus of proving misconduct lies still, as it always has lain, on the consignor. But he has now this advantage, that he can, if he wishes, have the company's servants who dealt with the consignment put into the witness-box for cross-examination, and may himself, if he can, prove his case from the examination or cross-examination of these witnesses, and the Court has then, from this evidence primarily and from any evidence called by the consignor, to examine whether misconduct can fairly be inferred or not. Obviously, evidence as to how the consignment was dealt with does not mean evidence as to how the stolen goods were stolen, nor does the fact of theft ipso facto constitute proof of misconduct. Such an argument, however, is the argument put forward by the respondent, who contends that the fact of theft of goods while in the custody of the Railway Company would, without any further evidence whatever, be conclusive proof of misconduct. Had the terms of the contract been on these lines, I am clear that the wording of the contract would have been very different.
5. Now, the Railway Company examined three witnesses to prove how the consignment was dealt with. Plaintiff was satisfied with that, and did not ask the Court to compel the Railway Company to disclose any further information on that point, and did not himself call any evidence. What the Court had to decide then, was, whether upon the evidence given by the Railway Company and cross-examination of these witnesses by the plaintiff, there was a fair inference that there had been any misconduct on the part of the Company. As pointed out already, there is no evidence to justify the District Munsif's conclusion that there was misconduct, nor am I pointed to any evidence in proof of such. It is argued merely that because the evidence disclosed that there was a watching staff, the Railway Company is guilty of misconduct because that staff did not prevent the theft. That is again the old argument that the fact of theft alone is sufficient proof of misconduct. Obviously, something more has to be shown, namely, that responsible care and caution was not being used by the Company or by their staff or that the staff was grossly insufficient for its purpose, so insufficient as to import negligence in the administration, or that as a matter of fact the staff was negligent, and was not doing its proper duty. The respondent further makes it a ground of complaint that the Railway Company did not examine the watching staff as to what they were doing at the time. But the remedy for that was in his own hands; he could have asked the Lower Court to compel the Company to examine the watchers; he cannot now ask this Court to call in aid his own slackness in support of the Lower Court's decree.
6. According to the terms of the risk-note, he has made his contract, and has, in view of these terms, got his consignment carried at a lower rate than would otherwise be the proper one. Now that his full consignment has not been delivered, he cannot, on that fact alone, claim that he is entitled to be practically in the position of an insured consignor. The terms of his contract do not lay down that whenever his goods are stolen from the yard of the Railway Company, he is entitled to recover full value from it.
7. In support of his argument respondent cites the case Central India Spinning and Weaving Company v. G. I. P. Railway ILR (1921) B l55 to prove that the onus of proof lay on the Railway Company, even under the old form of risk note. But even in that judgment, at page 167, it is clearly laid down that the onus lies on the consignor, and on the facts of that case, the learned Judges held that wilful neglect had been proved, mainly because 'it is certainly conceivable that the Railway Company could have taken such care as to make it impossible for such a theft as occurred in that case to take place.' But, with due respect, I think this manner of weighing the case against the defendant company went beyond the contract in the note for it calls on the company to establish that they did take such care as would render such theft impossible. That is throwing the onus of proof of non-liability on the defendant, instead of retaining the onus of proving liability on the plaintiff. It has been pointed out to me by Mr. Mockett for the petitioner that the case, Smith, Ltd. v. G. W. Ry. Co. (192l) 2 KB 237 relied on in Central India Spinning and Weaving Company v. G. I. P. Railway ILR (1921) B l55 came up before the House of Lords, and the judgment of the House of Lords is reported in (1922) 1 A C 178. The onerous nature of the burden of proof which the consignor takes upon him on a contract of this kind is set out in emphatic terms at page 183 : 'For the trader to be compelled to prove that his loss was due to wilful misconduct on the part of the Railway Company's servants, is to call upon him to establish something which it may be almost impossible for him to prove. None the less, that is the burden that he has undertaken.' And again, at page 185, it is laid down that even if the Railway Company declines to render the consignor the least assistance in the case, that will not 'afford evidence which will enable the plaintiff to discharge the onus of proving what after all is a very serious fact, an act of wilful misconduct on the part of one of the Company's servants.' This view has been accepted by the Calcutta High Court in a case, viz., East Indian Railway Co. v. Shib Prosad Dutt Rai 78 IndCas 449 and the same view has been put forward by the learned Judge of this Court in The Bombay, Baroda and Central India Railway Company, Ltd. v. Pratapaehand Firm (1924) 48 MLJ 400 which, though a ruling on the old risk note, in effect, foreshadows the terms of the present risk note, and also by a Bench of the Lahore High Court in Gulab Rai Lahri Mal v. East Indian Railway Company ILR (1925) Lah. 305, a case in which the facts were even more strong against the Railway Company than in the present case. I am clear, therefore, that the Lower Court has gone wholly wrong in its interpretation of the contract in this case, and that its decree cannot be sustained. I, therefore, reverse the decree, and dismiss the plaintiff's suit with costs in both Courts.