1. This is a Rule against an order of the Small Cause Court Judge of Sealdah dismissing the-plaintiff's claim for Rs. 243-4-0 for compensation for non-delivery of a consignment of suit cases despatched from Sealdah on 3-10-1947 to Tezpur, Assam, a station served by the Tezpur Baliapara. Railway. The plaintiff has sued three defendants-the Indian Union representing the East Indian Railway, the same representing the Assam Railway and the Traffic Superintendent of the Tezpur Baliapara Railway, a company's railway. The learned Small Cause Court Judge has dismissed the claim on the ground that the plaintiff's agent at Tezpur on being informed of the arrival or discovery of the consignment refused to take delivery and that, therefore, he cannot maintain a suit for damages.
2. The goods in question consisted of 14 small leather attach cases and 6 leather suit cases and according to the plaintiff they were arranged in seven packets some of the smaller cases being placed within the larger ones and the whole secured within a crate. Although the plaintiff alleges that the crate was strong and sound, nevertheless his agent in despatching the goods executed Risk Note A acknowledging defect in the packing. as well as Risk Note B. The learned Judge has also found, therefore, that the plaintiff is not entitled to any damages except on proof that the damages in the case was due to misconduct on the part of the Railway administration or their servants.
3. In my opinion, the case is to be disposed of on this latter view. Evidently what happened was that owing to defective packing what arrived at Tezpur was a portion of the package and a portion of the consignment. There was some difficulty for sometime in ascertaining who was the consignee. Eventually, sufficient identification was made for information to be given to the plaintiff whose man went to the station and then was offered some six suit cases but refused to take delivery. It is proved that the package at any rate-shows the letters 'C.L.W.' identifying as a package of the plaintiff's firm, Chowdhury Leather Works.
4. On behalf of the opposite parties before me it is contended and I think rightly, that the combined effect of the execution of Risk Notes A and B is that the onus is entirely on the plaintiff to prove that the loss in this case was due to the misconduct of the Railway servants. By executing Risk Note A it was recognised that the package was defective. This, therefore, brings the case oat-side the exception in proviso (a) of Risk Note B which only operates provided the consignment is packed in accordance with the instructions laid down in the Tariff. At any rate, as pointed out by Lodge J., in the case of Governor-General in Council v. Kishengopal Bhartia, A. I. R. 1948 Cal. 300, there was a clear onus on the plaintiff to show that despite the admitted defects in the packing the packet was packed in accordance with the instructions laid down in the Tariff or that no instructions were laid down. Thus as the proviso in Risk Note B does not operate, the 'Railway administration is not bound to make any disclosure to the consignor as to how the consignment was dealt with throughout the time it was in its possession. The contention before me that the Railway has failed to give proper evidence on this point, therefore, is of no assistance to the petitioner.
5. It is, however, contended on behalf of the petitioner that there being evidence that the Bail-way markings wore not found on the package which arrived at Tezpnr this itself proves misconduct on the part of the Railway authorities. The fallacy in this contention is obvious. The fact that the railway markings were not found on a defective package after a long journey is not proof that they were not placed on some part of the package when it was despatched. The fact that the package reached'Tezpur shows that some kind of markings must have been put on it at some and the obvious inference is that the absence of the markings at Tezpur is not due to any misconduct by the Railway officers in not placing the markings on the packets but is due to a part of the defective packing coming adrift during the course of the journey.
6. In this view of the matter, it is not necessary to discuss the other points raised before me.
7. The result is that the Rule must be discharged with costs, two sets, one set each for opposite parties Nos. 1 and 3.