1. This is an appeal by the Great Indian Peninsula Railway Company Limited against a decree whereby they have been ordered to pay compensation to the plaintiff in respect of non-delivery of part of two bales of piece-goods. It would appear that the goods in question were forwarded in two consignments delivered to the Great Indian Peninsular Railway Company at the Victoria Terminus in Bombay in November and December respectively of 1920. For the present purpose it need only be stated that these goods were consigned upon the terms of the risk-note B-a form of note approved by the Governor-General in Council under Section 72, Indian Railways Act (9 of 1890).
2. The first question which has been raised by the railway company in this appeal has reference to the point decided against it in the lower Court that the risk-note B is not appplicable to the case. The contention that the risk-note is not applicable to the case arises out of the circumstance that the person who actually tendered the goods to the railway company for carriage signed his name on behalf of C. Karnani in the place provided for the signature of the sender. The Courts below have held that as it is not shown that he had authority of the sender to sign his name the risk-note is invalid and does not apply in the present case. That contention which is of great importance to the railway company and which no doubt accounts for this matter being brought before this Court I do not think it necessary to decide. I will only say that it seems to me that there is much to be said on behalf of the railway company before such a contention can be accepted. I pass from that matter because, in my judgment, that important question does not arise at all. We ought not, therefore, to decide it.
3. Assuming that risk-note B applies, the learned advocate for the respondent contends that the judgment of the lower appellate Court is right in this respect that the burden was on the railway company, independently altogether of the exception clause in the form, to show that there had been a loss of part of these two bales in the presnt case. Now, when one turns to risk-note B, one finds that it is a limit put up on the general liability of the railway company. That general liability is not the liability known to English common law as the liability of common carrier, but the liability of a bailee as defined in Section 152 and Section 161 of the Contract Act; in other words, the railway company is not an insurer, but is under the duty of taking a certain measure of reasonable care. The purpose of risk-note B is to provide that notwithstanding there may have been a breach of duty to take reasonable care, the railway company shall not be liable for certain things except in certain special cases. The form says that the railway company shall not be legally liable for the following things, or any of them, namely, 'any loss, destruction, or deterioration of or damage to the said consignment.'
4. There is an exception which does not apply in the present case at all because to come within that exception there must be a loss of a complete consignment or of one or more complete packages.
5. But although that exception does not in the present case apply the language of it throws some light upon the meaning of the previous words in the form, upon the meaning in particular, of the words 'any loss,' in the previous part of it. The exception speaks of a loss
due either to the wilful neglect of the railway administration, or to theft by or to the wilful neglect of its servants,
and so forth. It is clear, therefore, that as the word 'loss' is used in the form there may be a loss although it is caused by theft of the servants of the railway administration or its agents, and there may be a loss although it is due to wilful neglect of the railway administration itself.
6. We have, therefore, to apply in the light of the language used in the exception the phrase, any loss, destruction or deterioration of or damage to, the consignment.
7. If the plaintiff's claim were for damages for the railway company's damaging the consignment, damages for the deterioration of the goods comprised in the consignment or damages for the destruction of the consignment, then prima facie the contract itself would be a complete answer and the plaintiff could not get on at all unless he got on under the exception clause. The plaintiff's claim in the present case is for damages for non-delivery of part of the consignments and the questions arise, first, whether it is necessary that it should be shown that there has, in fact, been a loss of part of the consignment and, secondly, whether the burden of showing that there has been a loss is on the railway company or on the plaintiff. Both these matters are covered by decisions of Courts co-ordinate with this Court. The form says that the railway company is to be harmless and free from all responsibility for any loss and, therefore, it is prima facie for the railway company to bring itself within that warranty. It is not necessary in the present case to endeavour to define what circumstances would come under the word 'loss.' If, for example, the railway company by negligence or mistake had parted with the goods to wrong consignee I am very far from holding that that would not be 'loss' within the meaning of the section. If the railway company still had the goods under its control and could have produced them or if the railway administration had converted them to its own use as distinct from some servant of theirs converting them in wrong of his masters to his own use, again it would not appear that the circumstances would be covered by the phrase 'any loss.' It is, however, necessary for the railway company, to get the benefit of this warranty, to show that the goods are lost, at least to show in the first instance that the goods are not then and there in the control of the railway administration, so that they might have been delivered to the proper consignee. In my judgment, therefore, on both the propositions-the necessity of showing that there has been a loss and that the initial burden of proof is on the railway company the cases which I shall now refer to have to be followed.
8. The first case is the case of Ghelabha Punsi v. E.I. By. Co. A.I.R. 1921 Bom. 443, which was a decision of Chief Justice Sir Norman Macleod and Mr. Justice Shah. That case proceeds upon certain English cases and upon a previous Bombay case decided by Mr. Justice West in 1883. It definitely lays down the principle that the burden is on the railway company to show that the goods have been lost. Mr. Justice West's language is this:
The natural presumption under such circumstances is that all the goods arrived, and that the railway company was in a position to deliver them.
9. The reasoning of that case is followed by a Division Bench of this Court presided over by Mr. Justice Suhrawardy and Mr. Justice Page in the case of E.I. By. Co. v. Jogpat Singh : AIR1924Cal725 and it was this case which was really in the mind of the lower appellate Court which decided the present ease. Again in the case of Gopiram Behariram v. Agents, E.I. By. and O. and R. Ry. A.I.R. 1926 Cal. 612, Acting Chief Justice Chatterjee and Mr. Justice Cuming held that
before the plaintiff is called upon to prove that the goods were lost by the wilful neglect of, or theft by, the railway servants, it must be shown that the goods have been lost; and unless the fact of the loss is admitted by the plaintiff, the onus is, in the first instance, on the railway administration to prove that the goods have been lost and it will be then for the plaintifi to show that the loss was due to the wilful neglect of, or theft by, the railway servants.
10. That statement of law does not take account of the fact that the exception clause in risk-note B, as it then stood, covered cases only where a complete consignment or package, part of the consignment, had been lost. Otherwise, it is in entire agreement with the other cases I have cited.
11. We have to consider whether we should depart from these authorities. In my judgment, it must be that the railway company seeking the advantage of the guarantee that they will be held harmless for certain things must have the duty, in the first instance, of bringing themselves within the language of that guarantee. I have considered whether the reasoning in the Bombay case and in the subsequent cases in so far as they proceed upon English cases and the Indian cases prior to the Indian Railways Act of 1890 should be dissented from on the ground that prior to 1890 in India and up to present time in England the liability of a railway in respect of goods in the absence of a special agreement would be that of a common carrier. No doubt, in the circumstances, it is easier to say that the burden of proof is, in the first instance, on the plaintiff. It seems to me, however, that where the general liability of a railway company is merely that of taking a certain measure of reasonable care it is still correct to say that prima facie, until certain other facts are proved, the railway company taking reasonable care of goods would have them at the end of the journey to deliver to the consignee.
12. Even although the railway company is not any longer a common carrier, in India it is in my opinion, still right to say that the railway company, to get the benefit of the special contract in this risk-note, must bring itself under the terms of the warranty and prove, unless it is admitted, that there has been a loss. In my judgment, this consideration concludes the present appeal.
13. It has been pointed out that in the trial Court not much attention appears to have been paid to this particular point. It is not shown to us, however, that in the plaint there was any admission that the goods had been lost and the form of the issue is such that the railway company is not entitled to assume that it did not have to prove that the goods had been lost. No doubt, the point in many cases - and probably in this case - is a purely technical one. It may well be that the railway administration would have had no difficulty at all in showing that at the time these goods should have been delivered they were lost to the railway administration. The railway company must remember when defending suits under this risk-note what the law is. They must take proper measures to show at all events that the goods were lost to the railway administration at the time when they ought to have been delivered. In my judgment, that being so, this appeal fails and must be dismissed with costs. This judgment governs appeal No. 1124 which is also dismissed with costs.
14. I agree.