1. This is a Rule obtained by the East Indian Railway Company in a suit, which was brought against them as defendants, by one Nilkanta Roy, in the Provincial Small Cause Court at Burdwan, to recover damages for failure to deliver certain tins of mustard oil which had been consigned from Bhagalpore to Burdwan for delivery to the plaintiff. The tins of mustard oil consigned to the defendants were 242 in number. Out of these, 238 tins admittedly were properly delivered to the plaintiff; but the other four tins were not taken delivery of by the plaintiff, because those tins had been cut open and the contents were missing. The goods were consigned to the defendants under a risk-note which is known as Form H. That risk-note is made under the provisions of Section 72 of the Indian Railways Act (IX of 1890) and, in accordance with the terms of that Act, it has received the approval of the Governor-General in Council. The note provides that the owner should undertake 'to hold the Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to all or any of such consignments from any cause whatsoever except for loss of a complete consignment or of one or more complete packages forming part of a consignment, due either to the wilful neglect of the Railway Administration, or to theft by or wilful neglect of its servants, transport agents or carriers employed by them.' Now, the learned Munsif who tried the case in the Court of first instance held that the onus of proving the loss fell upon the Railway Company, and that, in the absence of any proof that the loss was caused by one of the risks undertaken by the owner under the risk-note, the Court was bound to presume that the goods were lost under one of the reasons covered by the exception to the risk-note. In that view, the learned Munsif was, in my opinion, clearly wrong. There is a decision of this Court: Sheobarut Ram v. Bengal North-Western Railway Company (1912) 16 C.W.N. 766. That was a decision of Mr. Justice Harington and Mr. Justice Caspersz. It is true that the decision in that case did not turn upon the risk-note, Form H but upon another risk-note, known as Form B; but, for the purposes of the present case, the wording of the risk-note, Form B, is identical with the wording of risk-note, Form H. In my opinion, we are bound to follow the decision cited above. and if I may be permitted to say so, I think that that decision is quite correct, and that, upon the construction put on this risk-note, it must be held that the person who says that the case falls within the exception has to prove that when the case conies on for trial. Besides that, there is another decision to which the learned vakil for the railway company has called our attention, namely, the case of the Bombay, Boroda and Central India Railway Company v. Ambalal Sewaklal (1909) Ind. Ry. Cases 48. That is a decision of the High Court at Bombay, Sir Basil Scott, C.J. and Mr. Justice Batchelor being the Judges who gave the decision. That again is a case turning on the risk-note Form B; but, for all material purposes, the risk-note Form B is the same as the risk-note Form H and the facts of that case are almost the same as the facts of the present case. The question raised there was whether there had been loss of a complete package, and the learned Judges held that, as the tins forming the separate packages in the consignment were delivered to the consignee, there was no loss of any complete package and, therefore, the railway company could not be held liable. That is exactly what happened in this case. The tins were delivered to the consignee but the contents were missing. It seems to me that that decision of the Bombay High Court is good law. It is impossible to say that there was loss of complete packages when such material portions of the packages as the this were delivered to the consignee. On both these grounds, the present Rule must be made absolute with costs.
N.R. Chatterjea, J.
2. I agree.