1. The material facts have been set out in my learned brother's judgment and I need not re-state them. The paucity of reliable evidence in the case has compelled us to base our decision almost wholly on our view as to the burden of proof; and as the question was argued before us at some length, I have thought it right to make a few observations on that point.
2. The lower Court has dealt with the case on the footing that:
The burden of proving that the elephant died when in the possession of the defendant, notwithstanding the exercise of that care which in law he was bound to take, is upon him.
3. On behalf of the appellant, the learned Advocate-General argued that an action between bailor and bailee was no exception to the general rule that the party seeking to recover compensation must make out that the party against whom he complains was in the wrong. On the other hand, Mr. T.M. Krishnaswami Iyer (the learned counsel for the respondents), maintained that as a bailee, the defendant was under an obligation to restore the thing bailed at the termination of the bailment and it is for him to excuse himself by proper reasons, if he is unable to restore the thing bailed. Stated in the above simple form, both the propositions are true enough; but in their practical application, they have to be modified in the light of other principles coming into play in varying circumstances. Even after allowing for the interaction of different principles according to circumstances, it is by no means easy to reconcile the dicta found in numerous cases on this question of burden of proof.
4. Story in his 'Law of Bailments' noticed these discrepancies in the authorities (see Section 410). The learned editor in the 8th edition of that work attempted a reconciliation of the authorities in an elaborate footnote but the editor of the 9th edition felt that the authorities were not easily reconcilable and pointed to a difference in the trend of decisions between the English and the American Courts. In Coldman v. Hill (1919) 1 K.B. 443 Bankes, L.J., draws attention to the difference in the points to be proved, according as the bailor brings an action of detinue or of trover or on the case for negligence (see Story, para. 213). This classification may, to some extent, help to reconcile apparently divergent dicta. If the action was one of detinue it was well established that a bailee who was unable to restore the bailed goods would not be permitted to plead his negligence any more than his wrongful act in justification of his inability (Reeve v. Palmer (1858) 141 E.R. 33). In the absence of explanation by the bailee, the loss was taken to be the result of want of due care and attention. (See also Story on Bailments, para. 278.)
5. Even when the action is one based on negligence, there are observations to be found in the judgments of eminent judges suggesting that the onus lies on the bailee to disprove negligence. In Gosse Millard v. Canadian Government Merchant Marine, Limited (1927) 2 K.B. 432 there is a dictum quoted by Wright, J., from the judgment of Atkin, L.J., in The Ruapehu (1925) 21 L.I.L. Rep. 310 to the effect:
That it is wrong to say that the onus on the bailee to prove absence of negligence does not arise until the bailor has first shown some negligence -on the part of the bailee.
6. As the report is not available to me, I have not been able to examine the context in which the above observation of the learned Lord Justice occurs. On the other hand, the learned Advocate-General contended before us on the authority of Wakelin v. London and South Western Railway Company (1886) 12 A.C. 41 that it is not sufficient for the plaintiff merely to prove negligence on the part of the defendant but he must also prove that that negligence caused or materially contributed to the injury complained of. This last proposition does not however seem applicable as between bailor and bailee, in view of the decision of the House of Lords in Morison v. Walton (unreported) referred to and followed in Joseph Trovers and Sons, Limited v. Cooper (1915) 1 K.B. 73 and Coldman v. Hill (1919) 1 K.B. 443. These authorities seem to establish that in cases in which negligence or breach of duty on the part of the bailee is established, the onus lies on the bailee to show that the negligence or default did not cause the loss. On this point, the Court of appeal in Joseph Travers and Sons, Limited v. Cooper (1915) 1 K.B. 73 reversed the judgment of Pickford, J. As to the extent of the initial burden lying on the plaintiff, even the recent authorities are not precise or uniform. The observation of Lord Halsbury in Morison v. Walton (as quoted in Joseph Travers and Sons, Limited v. Cooper (1915) 1 K.B. 73) is-couched in very broad and general terms:
The bailee was bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment; the proof of that rested upon him.
(similar language is used by Buckley, L.J., on the same page). The observations of Lord Loreburn in the unreported case are however qualified by reference to the circumstances of the case. The learned Advocate-General drew our attention to the observations of the Judicial Committee in Dwarkanath v. The Rivers Steam Navigation Company, Limited (1917) 27 C.L.J. 615 (P.C.) where their Lordships say that the learned trial Judge was wrong in holding:
That it was incumbent upon the defendant company to satisfy him that they had taken such care of the goods as a man of ordinary prudence would take of his own goods.
7. Referring to Section 106 of the Evidence Act, their Lordships add:
It was therefore right that the defendant company should call the material witnesses who are on the spot (as it seems to have done) ; but this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence or (expressing it otherwise) the negligence of the servants of the defendant company. It may be for the company to lay the materials before the Court, but it remains for the plaintiffs to satisfy the Court that the true inference from those materials is that the servants of the defendant company have not shown due care, skill and nerve.
8. See also Dekhari Tea Co., Ltd. v. Assam Bengal Railway Co., Ltd. I.L.R. (1919) Cal. 6at 25.
9. The above statement of the law by the Judicial Committee is binding upon us and as we have come to the conclusion that even judged by this test, the appellant has not discharged the obligation laid on him by Section 106 of the Evidence Act, it is not necessary for us to examine the other cases to which Mr. Krishnaswami Aiyar drew our attention. He suggested that as this judgment of the Board was delivered by Sir Walter Philli-more, the observations occurring in this judgment must be interpreted in the light of the decision of the Court of Appeal in Joseph Travers and Sons, Limited v. Cooper (1915) 1 K.B. 73 to which also Sir Walter Phillimore was a party. But the judgment of Phillimore, L.J., in that case deals not with the initial onus but with a later stage. On p. 97, he observed that:
When the bailee of goods has to admit that the goods have been damaged while in his custody and in the absence of the custodian, and it is found that the absence was improper and negligent and that that very absence makes it difficult to determine what was the cause of the damage, and the owner can suggest a probable cause which the presence of the custodian might have prevented, the burden is upon the bailee to show that it was not the negligent absence which was the cause of the damage.
10. Dealing with the English authorities generally, I may observe that they all purport to be based on the judgment of the Exchequer Chamber in Scott v. London and St. Katherine Docks Company (1865) 159 E.R. 665 and the very first proposition there stated is there must be reasonable evidence of negligence '. The Court however went on to add that:
Where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affofds reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care.
11. See also The Kite (1933) Prob 154 and Beven on Negligence, 4th Edition, p. 971. As pointed out in Beven on Negligence, Chapter III, the application of the principle res ipsa loquitur will explain why in several cases the burden is cast on the defendant almost from the beginning. In the application of this maxim, there is a difference between animals and goods; because, in the case of the latter, they have no power of motion in themselves and the very fact of motion, disappearance or loss argues negligence in the bailee (see Beven on Negligence, 4th Edition, Vol. I, p. 124 and Story on Bailments, para. 406). This distinction was recognised by the Privy Council in Moffatt v. Bateman (1869) L.R. 3 P.C. 115 though in a different connection. This distinction must be borne in mind when the Court is called upon to presume that the death of an animal must be the result of negligence on the part of the bailee of. the authorities noticed in Beven on Negligence (Vol. II), pages 972,973.]
12. Rush Kanta v. Chandra Kanta (1923) 83 I.C. 151 is not really analogous to the present case. There is no doubt a general observation on p. 154 that on proof of loss of the thing bailed:
The law presumes negligence to be the cause and casts upon the bailee the burden to show that the loss is due to causes consistent with due care on. his part.
13. This observation must be understood in the light of the authorities above referred to. The actual decision rests on Section 161 of the Contract Act, because the animal hired was not returned at the proper time and died when in the custody of the hirer after he had made default. That the liability of the hirer in such circumstances is heavier will be seen from the discussion in paras. 413 (c) and (d) of Story on Bailment. See also Beven on Negligence, p. 970 and Secretary of State v. Kesho Prasad : AIR1932All584 .
14. It only remains to add a word of caution in respect of the use of observations found in judgments relating to the liability of railway companies. In India, actions against these companies have to be dealt with in the light of the provision expressly enacted in Section 76 of the Indian Railways Act that:
' It shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused'.
15. Even when such actions have to be decided on general' principles (especially in cases of torts) the Court has to proceed on the footing that as these Companies Act under statutory authority, they cannot be called upon to observe precautions which the legislature has not thought fit to enjoin (Wakelin v. London and South Western Railway Company (1886) 12 A.C. 41).
16. On the facts, I concur in the opinion expressed by my learned brother as to the nature and effect of the evidence in the case. I only wish to add that Mr. T.M. Krishnaswami Aiyar rightly laid stress upon the omission of the defendant to produce the accounts which D.W. 5 swore he kept, because, according to his own evidence, those books would show when and for how many days the elephant worked, when and for how many days it did not work and when and for what purpose D.W. 6 was called in. The information gatherable from the account books under the above he-ads would have a very important bearing on at least three of the points material to the case, namely, the complaint of over-working, that is, working the animal for more than twenty days in the month as provided for in Ex. A, the possibility of the animal having been unable to work on account of illness for sometime before its death, and the truth of the story of D.W. 6 having been paid for conducting a post mortem examination. This omission seems to me sufficient even by itself to warrant the conclusion that the defendant has not discharged the duty imposed on him by Section 106 of the Evidence Act. He cannot in the circumstances take shelter under the argument that the plaintiff did not summon him to produce the account books, because under Section 106 the duty of full disclosure lies on the defendant. The importance of the books was sufficiently stressed by plaintiff's counsel during the course of the cross-examination of D.W. 5, and the defendant, if only he so chose, had ample time to cause the production of the books before the case closed.
17. I must refer to another circumstance on which also Mr. Krishnaswami Aiyar was, in my opinion, justified in relying, namely, the haste with which the carcass was buried. (See the observations in Beven on Negligence, Vol. I on page 134 with reference to Rooney v. Allans.) It is not disputed that1 it was buried on the evening of the 8th October itself. It is not as if there was any particular necessity for such haste as the animal died in a forest and not in the vicinity of a town. Defendant's witnesses admit that they had not even obtained the usual written permission of the state authorities before burying it in a portion of the reserved forest. It not being the defendant's case that the plaintiff could have had any other information as to the animal's illness or death than that conveyed by the telegrams F and F-l, it would have been reasonable in the circumstances that the defendant's men should have given the plaintiff an opportunity of inspecting the animal at least after its death so as to satisfy himself that there had been nothing wrong on the part of the defendant's men. Defendant and his witnesses realised the force of such an argument and they accordingly state that a man sent by the plaintiff reached the forest before the evening (before the post mortem was completed) and satisfied himself that the animal died of heart disease. They would have it that the telegrams F and F-l which were addressed to the defendant at Olavakkot were sent on by him to the plaintiff (who was living several miles away) early enough on the 8th noon to enable him to send a man to reach the forest before the evening; but in view of the hours noted on the telegrams, the distances to be covered, and the means of communication available, I am not prepared to accept this story. It seems more probable that the plaintiff's man was able to reach the spot only on the next day as the plaintiff swears. The learned Advocate-General commented upon the omission of the plaintiff to examine the individual whom the defendant's witnesses named as the person that was present on the plaintiff's behalf at the post mortem. But here again Mr. Krishnaswami Iyer points out that if, as D.W. 5 swears, his account books will contain entries relating to amounts paid by him for the expenses of plaintiff's man who is said to have come to the forest on the 8th evening, the production of those books would have been the best way of disproving the plaintiff's version.
18. I agree that the appeal must be dismissed, except for the small modification in the form of the decree. I also concur in the order proposed by my learned brother as to the costs of the appeal.
19. By the written contract Ex. A dated 12th March, 1927, the defendant took an elephant on hire from the plaintiff, for one year from 13th March, 1927 and sent it to the forest for timber hauling. A few days later one of the mahouts, Narayanan Nayar, sent with the elephant, left. In September, so the learned Subordinate Judge finds, the other mahout Velayudhan Chetty left. On 8th October, 1927, the elephant died. The plaintiff's case is that the elephant was grossly underfed and overworked and had lost its life on that account. The defendant on the other hand contends that after the plaintiff's mahouts left he was unable to find any man who was able to manage the elephant; for it was of bad temper and got excited at the presence of strangers. He alleges that on 6th October, 1927, the animal died suddenly of heart failure.
20. The Subordinate Judge of Ottapalam seemed disinclined to accept the plaintiff's story that the elephant died of overwork but found that it had died of exposure to the heavy monsoon rains. He was of opinion that the burden of proving how the animal had died rested on the defendant as bailee and he not having put forward a satisfactory account of the animal's death, the suit was decreed. Hence this appeal by the defendant.
21. It is not necessary to refer to the numerous cases which lay down the common law principle that a person' who alleges negligence must prove it; for we do not think that Mr. T.M. Krishnaswami Aiyar for the defendant would deny that in general the principle holds good. This principle applies also when the action is on a contract; for the person alleging a hreach of contract by negligence has of course to prove it. Mr. T.M. Krishnaswami Aiyar however argues that there is an exception to that general rule when property is entrusted to a bailee. There is however no warrant for such a contention either in the Contract Act or in any of the cases quoted before us. No case that we have seen has been decided on the simple ground that a bailee is liable for any accident to the article bailed unless he can prove that the injury resulted through no fault of his own. It is argued on behalf of the respondent that Section 161 of the Indian Contract Act lays this burden upon the bailee; but it clearly does not. Section 161 lays down the common law rule that a bailee who retains an article after the period for ,which it has been bailed does so at his own risk and is liaJble for the loss, destruction or deterioration of the goods after the period has elapsed, even though such loss, destruction, or deterioration has occurred through no fault of his. The many cases quoted by Mr. T.M. Krishnaswami Aiyar in support of his contention that the onus of proving that there was no negligence rests always upon the bailee may be divided into two groups. The first relates to articles lost by the bailee. Such cases are Trustees of the Harbour, Madras v. Best & Co I.L.R. (1899) Mad. 524 Surendra v. Secretary of State for India in Council (1916) 25 C.L.J. 37 Sheo Narain v. East India Railway Company I.L.R. (1927) All. 246 Hirji Khetsey & Co. v. B.B. & C.I. Railway Co. I.L.R. (1914) Bom. 191 and Firm of Gauri Mal-Narain Das v. Secretary of State for India (1914) 91 I.C. 963 in which the responsibility of a bailee for the loss of the article bailed was considered. We do not refer to certain other cases quoted where there was a loss by a common carrier; for in such cases the bailee has much greater liability. In all the cases referred to above where there has been any discussion of the principles which govern liability, it has been clearly explained that the reason why the burden is thrown on the bailee is that the fact of the loss is itself prima facie evidence of negligence; and it is incumbent on the bailee to rebut that presumption of negligence. In Trustees of the Harbour, Madras v. Best & Co I.L.R. (1899) Mad. 524 for example, the defendants were unable to explain the loss of 816 tons of coal. Benson, J., says:
The defendants contend that the plaintiffs must show affirmatively that the defendants were guilty of negligence. It seems to me that no evidence could establish the defendants' negligence more clearly and affirmatively than a bare statement of the fact that in the short space of a hundred days they lost no less than 640 tons of coal in their sole custody without being able to give the slightest explanation of its loss.
22. In Sheo Narain v. East India Railway Company I.L.R. (1927) All. 246 where there was a theft from a Railway wagon it was pointed out that the manner of the loss was within the peculiar knowledge of the Railway and that they must therefore prove that the loss was not due to negligence on their part. In Coldman v. Hill (1919) 1 K.B. 443 some cows were lost by a bailee, who made no attempt to recover them at all. The Court observed that he should have informed the police and the plaintiff, that he was negligent in not doing so, and that as it could not be presumed that if he had done his duty the animals would not have been found, it was held that he was liable. The leading English case on the subject of loss of an animal is Mackenzie v. Co. (1840) 9 C & P. 632: 173 E.R. 987 where it is made clear that the mere loss of the dog was prima facie evidence of negligence. Of the other batch of cases relied on by Mr. T.M. Krishnaswami Aiyar dealing with loss by accident, that case on which he places most reliance, and which has been discussed in considerable detail by the learned Subordinate Judge is Joseph Travers and Sons, Ltd. v. Cooper (1915) 1 K.B. 73 where a servant negligently neglected to tie up a barge. At low tide the barge sank in the mud and when the tide rose again the goods were submerged and damaged. There it was held that the failure to tie up the barge was negligence and such negligence might have caused the sticking of the barge in the mud. As the bailee had therefore been negligent and that negligence might have caused the loss, it was incumbent upon the bailee to prove that the damage did not in fact result from that negligence. The reasons given by the Judges who tried this case are clear enough; but great reliance has been placed upon quotations in the judgment from Lord Loreburn in Morrison v. Walton and from Lord Halsbury in an unreported case. The quotation from Lord Loreburn is that:
A bailee who had omitted to take a necessary precaution should not be permitted, to saddle upon the parties who had not broken the contract the duty of explaining how things went wrong.
23. It appears that in that case a barge had been towed across the Atlantic and that there was no man on board it. The barge sank and there was no explanation at all how the accident happened. It was held that the bailee should have kept a man on board the barge and it was quite probable that if he had done so this accident would not have happened. The burden of proving that the accident was not the result of this negligence was therefore upon the bailee. The quotation from Lord Halsbury is:
It appears to me that there was a bailment made to a particular person, a bailment for hire and reward, and the bailee was bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment. The proof of that rested upon him.
24. As it was an unreported case we have unfortunately not been able to refer to it; but it seems most unlikely that any such general principle was laid down which was intended to have universal application. If a bailee were always liable for any loss that might occur to goods while in his custody unless he could prove absence of negligence, there would have been no need either in this case or in the other cases quoted to us for a lengthy discussion of the law relating to bailees. As already pointed out, no case has been decided on this simple ground. In The Rivers Steam Navigation Company v. Chontmull Doogar which was an appeal to the Privy Council from Choutmull Doogur v. Rivers Steam Navigation Company I.L.R. (1897) Cal. 786 prima facie evidence of negligence was presumed from the fact that a fire broke out inside a ship in a place where it would seem that it could hardly have occurred without negligence on the part of those in management of the ship.
25. It is thus seen that there is no general exception to the rule that the person who alleges negligence must prove it, and the question therefore that has to be decided in this case is whether the death of the elephant was itself prima facie evidence of negligence. We do not think so; for animals, like man, are heirs to a thousand diseases, and it would be most unreasonable to conclude from the mere fact of death, whatever the age of the animal might be, that it was due to some form of negligence; and we do not find any warrant for such a conclusion from any of the cases quoted. If the manner of death is known, it is possible for a Court to say whether or no it would lead to a prima facie inference that the animal died of negligence. For example, in Shields v. Wilkinson I.L.R. (1887) All. 398 a horse died through rupture of the diaphragm, resulting from severe exertion soon after taking a substantial meal. This seemed to the learned Judges who tried the case prima facie evidence of negligence to take reasonable precautions not to overwork an animal immediately after a full meal; and so the person in whose charge the animal was, was called upon to give some reasonable explanation of the animal's death which would not lead to a necessary inference that there was negligence. As he was able to give such a reasonable explanation it was found that the burden was again shifted upon the plaintiff to show that the death resulted from negligence. In Beven on Negligence, 2nd Edition, page 970, the question was discussed and the learned author writes that ordinarily the burden of proving injury to an animal lies upon the bailor; but that if the article was returned in such a state that negligence would ordinarily be presumed, then the burden was on the bailee. He illustrated this principle with reference to two cases. In the first a horse was returned with broken knees (that is, the skin of the knees had been abraded) and it was held that such an abrasion was not prima facie evidence of negligence, as such an injury could result to the horse by its tripping and falling, even though it was proved that the animal was not in the habit of so tripping. Where however a horse was returned with some unusual injury, such as a gash in its side, which could not result from an ordinary use of the horse, the burden was upon the bailee to prove that this injury did not result from negligence on his part. Story, after pointing out the difficulties in deciding upon whom the burden lay in questions of bailment, discussed the difference between the French and the English law and explained that under the French law the person in possession of an animal that met with an injury or death was bound to show that that injury or death did not result from any negligence on his part; whereas English law threw the burden of proof on the bailor. The burden of proving that the elephant died of negligence therefore rests upon the plaintiff.
26. The evidence in this case with regard to the circumstances which led to the death of the elephant, is most unsatisfactory. None of the witnesses seems to be satisfactory or to have made an attempt to put before the Court the whole truth. The plaintiff, to prove the case of negligence has examined only P. Ws. 3 and 7, P.W. 8 deposing only that he saw the animal fall and that at that time there was a large log of wood near by. P.W. 3 is one of the mahouts sent by the plaintiff witbi the elephant. He deposes that he remained with the elephant until September, although the defendant would have it that he left as early as June. We agree with the learned Subordinate Judge that in this respect at least his evidence is probably true. We cannot however agree with the learned Subordinate Judge that the two mahouts Narayanan Nayar and P.W. 3 were sent away by the servants of the defendant in order that the latter might illtreat the animal with impunity. A person who has to use an animal for as long a period as a year would not deliberately neglect the animal in such a way that its usefulness for the work required would be materially impaired. Narayanan Nayar left within a few days of his arrival and we find that an agent of the defendant writes a letter (Ex. B) on 16th April, 1923, to the plaintiff in which he says that the elephant did 19 days' work during the previous month, that Narayanan Nayar had gone away after doing only two days' work, that on account of that he had to go off urgently and bring two other men, and that he is very greatly perturbed because P.W. 3 says that he must go away too. He says that if P.W. 3 goes away it will not be possible for anyone there to untie the elephant or make it work, and he asks the defendant to prevent P.W. 3 from leaving. P.W. 3 was a very experienced mahout and had been for 14 years the keeper of this elephant, and it seems to us most unlikely that even in September the defendant would have deliberately sent him away. If, as the learned Subordinate Judge suggests, P.W. 3 had been sent away in order to facilitate the overworking of this animal, P.W. 3 would assuredly have gone to the plaintiff, who would himself necessarily have taken steps to protect his own animal. P.W. 7 states that he was the mahout of another elephant but D.W. 7, an owner of an elephant, said by P.W. 7 to have been cared for by him, hasbeen examined to show that P.W. 7 is to a great extent a Her, and the learned Subordinate Judge has not felt inclined to attach any weight to the evidence of P.W. 7. P.W. 8's evidence was intended only to suggest that the elephant had been put to hard labour; but the evidence of the various officials shows that there is no timber of such a size as was said by P.W. 8 to have been drawn by the elephant. The learned Subordinate Judge seems to have been of opinion that the elephant was not overworked, and we are not satisfied that there is any satisfactory evidence that it was. We do not think that the plaintiff would have done nothing at all if his elephant had been grossly overworked and underfed and his own servants sent away in order to render this easier. The learned Subordinate Judge has given a gratuitous finding that the elephant died of exposure in the forest; but we find no reason for thinking that an elephant would suffer by being exposed to the monsoon. Moreover, the finding of the lower Court that the elephant was working until September is inconsistent with this theory; for the monsoon must have ended by that time. We therefore find that the plaintiff has failed to make out a positive case of negligence.
27. We are not however prepared to agree with the learned Advocate-General that the defendant, who through his agents had the care of the animal, was entitled to fold his arms and leave it entirely to the plaintiff to prove his case. Only the servants of the defendant are in a position to inform the Court of the conditions under which the elephant lived and died. The Court would have' liked to have known for example what food was given to the animal, how much work it was given, what happened to it after P.W. 3 left, who was then looking after it, when it first began to show signs of a failure of power to do its work, when it became definitely sick, what was done for the animal when it first began to show signs of serious illness, under what circumstances it met its death, and what steps the servants of the defendant took to care for it. There is evidence by the defendant and by P.W. 3, and P.W. 7 supports him in that respect, that the elephant had been showing some disinclination to work for some time before its death. Even in a case of heart disease, as the evidence of the Veterinary Surgeon (D.W. 6) would show, an animal would show certain symptoms of illness for some time before its death; and we feel sure that the illness of this elephant was not so sudden as the defendant would make out. We also think it extremely unlikely that after Velayudhan Chetty left, the animal was not worked at all. Even at the first, new mahouts had been brought in; and they would surely have become accustomed to the animal, and he to them, by the time Velayudhan left. The defendant has examined a Veterinary Officer of the Cochin State who claims to have conducted a post mortem examination and to have found that the animal died of a long-standing heart-disease. The learned Subordinate Judge has discussed his evidence at considerable length and he saw the witness in the, witness-box; and we are not prepared to disagree with him that the evidence of this witness is quite unreliable. For the reasons given by the learned Subordinate Judge, and in particular because in the suit notice no mention was made of this post mortem and its result, we do not believe that a post mortem examination was held. We further feel it to be unlikely that the defendant's agent Kochappu would have incurred the considerable expenditure of Rs. 60 for the examination without the defendant's consent. D. Ws. 8 and 9 are the only other witnesses who claim to have an intimate knowledge of the working of the elephant, but D.W. 9 says that he left immediately after Velayudhan. The lower Court came to the conclusion that these witnesses were not working in the forest at all and that their evidence is of no value. We are not prepared to disagree with this finding. The only other evidence giving intimate details of the life of the elephant is that of D.W. 3, a kariasthan of the defendant. D.W. 1, the head clerk of the defendant, went occasionally to the forest; and it was he who brought the Veterinary Officer. Three forest officials, D.Ws. 3 4 and 10, said that they casually visited the scene of the timber-hauling operations and found the elephant tied up. Their evidence has been discredited by the learned Subordinate Judge, and it would not be very valuable even if accepted.
28. It is true, we think, that the defendant was not called upon to meet any case that was not put forward by the plaintiff in his pleadings, nor was it incumbent on him to prove a negative case that he was not negligent; but we are not satisfied that he frankly put before the Court the material within his peculiar knowledge, that would give the Court some idea of the condition of the animal and the work done or neglected by it during the period that it was with him. Even in two of the cases quoted by the learned Advocate-General on the question of the primary burden of proof in an action on negligence, the duty of the bailee cast upon him by Section 106 of the Indian Evidence Act is referred to. For example, in The Kite (1933) L.R. Prob 154 a case decided in favour of the bailee, it was pointed out that the plaintiff had to put forward a reasonable explanation of the accident. In Dwarkanath v. The Rivers Steam Navigation Co., Ltd. (1917) 27C.L.J. 615 (P.C.) the suit barge was tied to another, which caught fire, the fire spreading from one barge to the other, with the result that certain goods which were the subject of the suit, were destroyed. This case was quoted by the learned Advocate-General to show that the burden lies upon the bailor to prove negligence by the bailee and that is what their Lordships held in that case. It was argued before them that under Section 106 of the Evidence Act the duty lay upon the defendant to explain the accident, the facts of which were known to him alone, in such a way as to prove that they were not negligent. Their Lordships agreed that a duty was cast upon the bailee under Section 106 of the Evidence Act; but they thought that the bailee had given a reasonable explanation of how the accident happened and that explanation should be accepted in the absence of proof by the plaintiff that negligence had occurred. A reasonable explanation is all that was required from the defendant in this case; but we cannot say that he has given one. It is only after the defendant, as bailee, has given a reasonable explanation of how the accident happened, that the plaintiff is called upon to prove a positive case of negligence. It would clearly be inequitable to call upon the bailor, who could have had no personal knowledge of how the accident happened, to prove a positive case of negligence when the bailee has failed to set forth the circumstances that led to the sickness and death of the animal.
29. A slight modification of the decree will have to be made as the movables claimed in the plaint are said to be still available. The Rs. 100 awarded by the lower Court will therefore be ordered to be paid only in the event of the articles not being returned within two months.
30. The appeal is therefore dismissed except as indicated in the above paragraph; but in view of the fact that the plaintiff has failed on the principal ground on which this appeal has been argued and has put forward untenable contentions in both Courts, we think that it would not be just to call upon the defendant to pay the costs of the plaintiff throughout. While not interfering with the order of the lower Court as to costs, we will pass no order as to costs in this Court.