Norman Macleod, C J

[1] The plaintiff in this case consigned 250 bags of rice to Bombay from Dubrajpore, which were delivered to the first defendant railway company at Dubrajpore to be delivered by the second defendant railway company at Wadi Bunder, Bombay. The plaintiff only received delivery in Bombay of 248 bags, and in consequence demanded from the railway company either the two bags of rice or their value.

[2] The case came on for hearing before the learned Third Judge of the Small Causes Court, when it was stated by the second defendant that the goods were lost on the railway line, that the defendants had taken the proper amount of care imposed by law on them, and that the loss was due to causes beyond their control. A commission was directed to issue to the District Court at Birbhum to examine evidence, but that evidence was confined to the issue whether the Risk Note was signed by the plaintiff consignor. The learned Judge held that as the plaintiff had signed the Risk Note in Form B there was a complete indemnity in all other cases except the case of loss of a complete package due to wilful neglect of the railway servants. In consequence the suit was dismissed. The plaintiff took the case to the Full Court where the question was argued whether it was sufficient for the defendants merely to admit that the goods were lost without leading evidence to show that they were lost. None of the Indian cases cited really deal with this particular question, which certainly did arise in the Irish case of Curran v. Midland Great Western Company of Ireland [1896] 2 I.R. 183. In that case two pigs consigned by the plaintiff were short delivered and the railway company sought to escape liability under the Risk Note drawn up in very similar form to the present Risk Note B The suit was decreed clearly on the ground that although the Company admitted the loss, they did not lead any evidence as to how the pigs came to be lost. I cannot agree with, the reasoning of the learned Judge of the Full Court of the Small Causes Court differentiating the present case from that case. If the present contention of the defendants were right, the consignor whose goods were shorts delivered, would have no remedy even although, us a matter of fact, if evidence were taken, he might show that his case came within one of the exceptions in the Risk Note. If the plea of the Company that the goods are lost were sufficient, then all that evidence is excluded.

[3] In Mohansing Chawan v. Henry Conder, (1883) I.L.R. 7 Bom. 478, 480 a claim was made for the price of certain bags not delivered. The suit was decided in the lower Court in favour of the plaintiff, but in first appeal this decree was reversed on the ground that the claim was barred under Article 30 of Schedule II of Act XV of 1877. In second appeal this decree was reversed, and although the issue in the suit was mainly one of limitation, there is a dictum of Mr. Justice West which is directly pertinent to the question before us :

The railway company in this case were bound to deliver the particular bags which they received from the plaintiff s firm for carriage. They did not deliver them, nor did they, so far as the evidence goes, announce their inability to deliver them on account of having lost them either in transit or by misdelivery to some one not entitled-. The natural presumption under such circumstances is that all the goods arrived, and that the railway company was in a position to deliver them. We are asked to infer from the mere non-delivery that they could not be delivered, because they were lost; but that is and affirmative fact of which the company ought to have given evidence. Prima facie, the responsibility rested on the company, and the non-delivery of the goods might arise from other causes than loss. Had the company announced to the plaintiff that his good were lost, that might have helped the defendants case; but no such announcement, was made and the plaintiff could only tall that goods received and carried for him were not delivered."

[4] A point seems to have been made before the Full Court that the Plaintiff sued on the basis of conversion of his goods by the defendants, in which case undoubtedly the onus would lie on the plaintiff to prove that the goods had been converted. But that was clearly an error on the part of the plaintiffs pleader in drawing up the statement of the claim, and there is no reason why the plaintiff should be prevented from having the case tried, as it ought to be tried, namely as a suit for compensation for non-delivery of goods entrusted to the railway company carriage.

[5] We must, therefore, make the rule absolute, not aside the decree of the Full Court of the Small Causes Court, and remand the case for a retrial, when the defendant company will have to prove that the goods were lost, as a mere admission in their favour that the goods were lost in not sufficient. It may very well be that the defendants can prove very easily that the goods were lost, but still although it may be only a formal matter, it is a matter of principle, and the plaintiff would be entitled to cross-examine the defendants witnesses in order to show that they were not protected by the Risk Note.

[6] The petitioners will have costs in this Court. The costs of the Small Causes Court will abide the result of the case at the retrial.

Shah, J.

[7] I agree.