1. This appeal has arisen out of a suit which was instituted by the plaintiff for recovery of compensation for loss of 24 tins of ghee weighing 11 mds. 10 seers and also of one md. 10 seers of ghee abstracted from out of 20 tin3 of ghee the said 44 tins forming part of a consignment which had been despatched from Sangli station on the M. & S.M. By. to Dubrajpur on E.I. By. The trial Court decreed the suit in part against defendant 1 only, namely, E.I. Ry. The decree was in respect of 24 tins of ghee and not in respect of one md. 10 seers. On appeal this decree was affirmed by the District Judge. Defendant 1, the E.I. Ry. Co. have then preferred this second appeal. The findings of the learned District Judge appeared to be the following : that the consignment was covered by risk-note H, that the plaintiff by virtue of the contract embodied in the said risk-note cannot recover unless he is able to show that one or more complete packages have been lost due either to the wilful neglect of the railway administration or to the theft by or to the wilful neglect of its servants, transport agents or carriers, provided that the term ' wilful neglect' be not held to include fire, robbery from a running train or any other unforeseen events or accidents. The learned Judge was not prepared to hold that there was any admission on behalf of the plaintiff to the effect that there was any lose. He further held that it had not been satisfactorily proved that there was loss. He went on further and observed in his judgment:
Admitting for the sake of argument that the goods are really lost the evidence seems clearly to point to the conclusion that the contents were stolen by the company's servants at Ondal station.
2. He referred to several circumstances which supported the conclusion at which he so arrived. The arguments before us have been directed in the first place to establishing that the loss had been admitted on the side of the plaintiff in the plaint which they had filed. It may be conceded that the learned Judge perhaps took a rather extreme view in holding that the defendants had failed to make out that there was loss. In the letter which the Traffic Manager of the E.I. Ry. wrote to the plaintiff it was stated within a few days after the occurrence to which the present case relates that the consignment was loaded in wagon No. 13335 and proceeded correctly as far as Ondal where the seal of the wagon was found to have been broken into by thieves and contents stolen. There is no reason to suppose that at that time the defendant company invented a story of loss in order to account for the non-delivery of the 24 tins of ghee. The word ' loss ' as used in the risk-note means loss of the goods by the railway company while in transit and occurs whenever the railway company involuntarily or through in-advertance loses possession of the goods and for the time being is unable to trace them. For the purpose of the present appeal, therefore, I do not think it would' be necessary for us to go so far as to hold that loss has not been proved. But then the question that arises for consideration is whether upon the facts that have been found, the mere fact that the defendant company succeeded in proving that there was loss would absolve them from liability by virtue of the provisions of the risk-note. The circumstances upon which the learned Judge has relied for the purpose of coming to the conclusion that the contents were stolen by the company's servants at Ondal station are mainly these. The train carrying this consignment arrived at the station at about 10-15 A.M., and within five quarters, this is to say, at about 11-30 A.M. information was given to an officer of the company who was examined in the case and who went and found that there was no seal and that the goods were missing. The evidence that has been given in the present case shows that there are about 60 men who guard the station premises by day and night and it must be remembered that there were 21 tins of ghee which were removed and so the removal must have taken a fairly considerable time. The evidence further is that under the rules the guard-in-charge of the train has got to look after the train until the wagons are checked and the train is put into the yard. In this particular case there is no evidence whatsoever to show that between 10-15 A.M. when the train arrived and 11-30 A.M. when in point of fact the wagons were checked the guard was looking after the train. These are circumstances from which it is not at all unreasonable to come to the conclusion as the learned Judge appears to have come to that it was a case of theft and that the servants of the company were responsible for or at any rate concerned in it. The case, therefore, in our opinion, is one which is not protected by the risk-note which cover3 the consignment. Because once it is proved that the loss was due to theft by the servants of the company the risk-note will not absolve the defendant.
3. It has next been argued before us that if it be found that the risk-note is out of the way then the case will have to be tried on the footing of the liability of the company under the provisions of Section 72, Railways Act. In support of this contention reliance has been placed upon the decision of this Court in the case of E.I. Ry. Co. v. Shewbux Roy Ghanashayamdas : AIR1928Cal491 . In that case it has been laid down:
That the risk-note is merely a contract absolving the Railway Administration in all cases axcepting a few cases specified and with regard to the cases so excepted the risk-note itself, apart from the general law, does not creata a liability and the effect of it is not that when a case comes within the exception the rights and liabilities of the parties such as they are under the general law are to be regarded as in any way limited, extended ox qualified by the risk-note. The effect of that is not that case a case comes within the exception nothing else need be investigated and under the terms of the risk-note itself the Railway Administration becomes liable. A contrary view would militate against the provisions of Section 72, Sub-section 2, Railways Act to which statutory provision risk-notes owe their origin.
4. Looking at the case from this point of view it would be necessary to consider whether in point of fact the defendant company have succeeded in showing that they took as much care of the consignment as a man of ordinary prudence would do in the circumstances of the case. In this respect it appears to us that no attempt whatsoever was made by the company to establish anything which might absolve them from liability. The learned District Judge has referred to the fact that neither the guard of the train nor the choukidar who informed thechecking clerk nor the police officer who was informed by him and who is alleged to have held an enquiry were examined in this case. We have looked into the evidence of the only witness who was examined on behalf of the company and we find that, if anything, that evidence suggests that there was no care taken by the company in respect of this consignment or at any rate that the rules which have got to be obeyed and which if followed would perhaps afford a check upon occurrences of this nature were not adhered to in the present case. For these reasons, we are of opinion that the decree passed by the learned District Judge is correct and that this appeal must be dismissed with costs.