Bucknill, J.This was a second appeal from a decision of the District Judge of Saran, dated 24th November 1922, by which he modified a decision of the Munsif of Chapra, dated 16th March of the same year. The appellant was the Great Indian Peninsula Railway through its agent in India; this Company was the defendant in a suit brought by the plaintiffs (the respondents here) who are merchants of Chapra town. The plaintiffs suit was of familiar type: their firm ordered a bale of cloth from a Bombay merchant; it is admitted it was duly sent under Risk Note B and was duly placed in the appellant Companys custody; it is also common ground that it was never delivered.

2. The plaintiffs sued the appellant Company for the value of the goods lost (Rs. 869-14-9), the freight (Rs. 5-150) and loss of profit (Rs. 75) or Rs. 948-13-0 in all. They averred that they believed that the bale had been lost through the negligence of the appellant Companys servants.

3. The appellant Company pleaded various defences; they admitted the loss but alleged that it was due to "running train theft," and that, therefore, they were absolved by Risk Note B from liability. The appellant Company, however, called no evidence whatever in support of their allegation of "running train there." Whether the plaintiffs evidence proved any negligence on the part of the appellant Company or not was a matter of difference of opinion between the Munsif and the District Judge.

4. The case, however, proceeded on the usual lines; the plaintiffs tried to prove negligence on the part of the defendant Company, but all that their sole witness could aver was that he supposed that the companys servants must have been negligent because the plaintiffs had never received their bale of cloth. I need hardly say that such an assertion by itself is of no value as proof of negligence. The Munsif, therefore, holding that the plaintiffs had failed to prove any negligence, dismissed their suit with costs.

5. The District Judge, when the appeal came before him, thought that negligence should be inferred from all the circumstances." He, therefore, reversed the Munsifs decision and gave judgment for the plaintiffs for the price of the cloth with costs, but not for the alleged loss of profit which he did not consider had been proved.

6. It is important to ascertain on what grounds the District Judge arrived at this conclusion, In the first place he points out how impossible it was for the plaintiffs to prove what happened to the cloth when in the Railways custody; but this, though I may say at once that it is a constant difficulty in almost every case of this type, does not relieve a plaintiff from proving negligence on the part of the Railways servants. The District Judge nest remarks that the Company alone can know what happened to the bale whilst in its custody and that, therefore, u/s 106 of the Evidence Act, the onus is on the Company of proving what happened to the goods; but this view is contrary to all the Indian and English case-law and authority: vide e.g., Smith v. The Great Western Railway Co. [1922] 1 A. C 178; the onus of proving negligence in these cases lies on the plaintiff; the Railway Company is not bound in law to assist the plaintiff to fasten liability on itself. The District Judge further observes that the whole consignment was lost and that although the Railway pleaded theft on a running train, it had made no attempt to prove any such theft and that therefore the onus of avoidance of liability lay, by this plea in defence, upon the Company; it is possible that, more closely examined, there may be some force in this reasoning, but I propose to deal with this point at a later stage.

7. The District Judge then states that the plaintiffs could get no information from the Company as to what had happened to the cloth; but this does not, according to the authorities, relieve the plaintiffs from proving negligence. The District Judge next remarks that, from the plaintiffs evidence and the admitted facts in the case, the only reasonable conclusion was that the loss was due to the negligence of the Companys servants; but I have already pointed out that the plaintiffs testimony was of no evidential value; whilst the only material admissions in the case were that the bale was duly given to the Companys custody and was lost in a running train theft; neither of which circumstances threw any liability on the Company.

8. Lastly, the District Judge seems to think that a plaintiff can in some manner go behind his special contract (i.e., Risk Note B) with the Company and sue the Company for damages for non-delivery under such normal statutory liabilities as are imposed upon parties to a contract under the Indian Contract Act and upon Railways as carriers under the Indian Railways Act; but this view again is, I fear, contrary to the best authority. There have been so many decisions on cases of this type reported in the Indian Law reports that I think it is as well to try and express very simply a few of the more important features which emerge from them.

9. What is known as Risk Note B is, we are informed, the ordinary and most usual contract for the carriage of goods entered into between merchants and the Railway Companies in India. It is very simple in its language; it forms a complete special written contract between the consignor and the Railway Company. The Railway takes the goods at a rate of freight lower than the ordinary rate; in consideration for so doing the consignor undertakes to absolve the Company from all responsibility for any loss, destruction, deterioration of or damage to the goods whilst in transit from any cause whatever subject to the following exceptions. These exceptions provide that if a whole consignment (or one or more complete packages) forming part of a whole consignment) is lost, then the Company will be responsible if the loss is due: (a) to the wilful neglect of the Railway administration; or (b) to theft by its servants or agents; or (c) to wilful neglect of its servants or agents. Then there is a proviso that wilful neglect cannot be held under the contract to include (a) fire, (b) robbery from a running train, (c) any other unforeseen event or accident.

10. A. then, a merchants, consigns goods by B, a Railway Company, to C. another merchant, under a contract contained in the Risk Note B: the goods are never delivered to C. A (or C, acting really on As behalf or as As principal; for there is no direct contract between B and C) sues B for damages for the loss of his (As) goods or, if one so likes to phrase it, for damages for breach of contract in that B has not delivered the goods to C as B, undertook so to do. What is As cause of action It is solely on account of a breach by B of the contract between A and B. What is that contract It is an agreement between A and B reduced into writing in the form of Risk Note B. What contract must A sue on Only on the only contract existing between A and B, i.e., the Risk Note B. Can A ignore the Risk Note and sue B for damages for non-delivery basing his claim on statutory liabilities imposed general-upon those who make contracts or particularly upon a Railway Company under the provisions of the Indian Contract Act and the Indian Railways Act respectively The answer is in the negative; A cannot do so; he has to base his claim on his existing and actual contract with B, i.e., the Risk Note B. A then sues B upon and for damages for breach of the contract, i.e., the Risk Note B made between them. B, to take the simplest case, admits the loss in the Companys statement of defence. By the express terms of the contract B is not liable for loss save under certain specific circumstances. Who has to prove those circumstances under which B is liable Clearly not B for it can hardly be contemplated seriously that B is bound to assist A in fastening responsibility upon B. So it is A upon whom the onus falls of showing that B is responsible for the loss,

11. There have, it is true, been cases--even of quite recent date--in which it has been held that it is not sufficient for B to admit the loss in his statement of defence but that B must adduce evidence to prove such loss [e.g., Gilabhai Punsi v. The East Indian Railway Company AIR 1921 Bom 443 and Jamnadas Baldevadas v. The Burma Railway Company AIR 1920 LB 124; but these were decisions given prior to the case of Smith v. The Great Western Railway Company [1922] 1 A. C 178; and it is difficult to understand why B should be called upon to prove what he expressly admits: the point also has been fully discussed and dealt with in this Court in the decisions of Mullick, J., and myself in the G.I.P. Railway Company v. Jitan Ram Nirmal Ram AIR 1923 Pat 285 , in which we held that the contention was incapable of support. A who may know nothing, and indeed is not likely in most instances to know anything, as to how or where his goods vanished, or why they were not delivered can aver in his statement of claim what he pleases; he can state, if he wishes, that the loss was due to any or all of the exceptions under which alone B is liable; but, assuming that B admits the loss, A, if he is to be successful in his claim, must prove that the loss was in fact due to one of the exceptions under which B is responsible. It is often asked how he can do so; it is obviously not an easy task as it may well frequently be that B, at the mercy of any unscrupulous member of its staff or the victim of clandestine theft by outsiders, knows no more as to the disappearance of the goods than A himself; As only chance would appear to lie in the administration of searching interrogatories and the calling of servants of B as his (As) witnesses. If he proves nothing his claim must fail: B need not say or do anything beyond admitting the loss.

12. All the above points have been dealt with at length in the recent decision of Mullick, J., and myself to which I have referred above. But it is frequently observed that if the law is as above stated it seems very hard as the position of A is almost hopeless. The answer to this comment is very simple; it is that the contract is itself a hard one, but that A has a complete remedy in his own hands, namely, not to seek to have his goods carried at a reduced rate and under the terms of such a hard contract as Risk Note B, but pay a higher freight and have his goods carried under another form of contract under the terms of which B has to assume a far fuller responsibility.

13. I mentioned at an early stage of my judgment that one of the reasons why the District Judge thought that the appellant should be held responsible was that the Railway Company had pleaded in its defence that, the loss was due to a running train theft but that it made no attempt to prove that allegation. There seemed at one stage to be some force in the argument which was thus put forward in support of this part of the District Judges decision. It was contended for the respondent that this admission by the appellant Company was an admission that there had been a theft and that as the Company failed to prove that it was a theft on a running train (satisfactory evidence of which would clearly have permitted the Company to escape any liability) it might be inferred that the theft was committed by the appellants agents or servants; or at any rate that as they had admitted a theft it was incumbent upon the appellant Company to show that it was not theft by their own agents or servants but theft either as pleaded on a running train or at any rate by some outsiders not in their service or not their agents. It is however impossible upon (further consideration to come to the conclusion that this argument is a sound one. In the first place the admission or plea is not of theft at large but of a specific form of theft, i.e., on a running train. In the second place, even if the defendant Company failed to prove or to adduce any evidence in support of such an allegation, it cannot be held that a necessary inference must be drawn that the theft was committed by the Companys servants or agents; for although there might have been a theft, it might have been by persons who were or were not the servants or agents of the Company; whilst, in order to prove that the Company was liable to the plaintiffs for the loss, it was primarily necessary (the onus being upon the plaintiffs) for the plaintiffs to show that the theft (whether or not committed on a running train) was effected by the Companys servants or agents; and this of course the plaintiffs made, and no doubt could make, no attempt to do Lastly it was quite unnecessary, according to the authorities, for the Railway Company to do anything more than to prove or admit the loss; and, having done that, the onus of proving that that, loss was occasioned under one of those exceptions contained in the contract under which alone the Company could be held responsible lies upon the plaintiff is As a matter of fact this very point appears to have been dealt with by Odgers, J., in the Madras High Court in the case of The Madras and Southern Mahratta Railway Co., Ltd. v. B. Krishnaswami Chetty AIR 1925 Mad 133 . That case was one in which there appeared superficially, to exist considerably greater reasons for drawing on inference that the theft had been committed by the Railway Companys servants than would be justifiable in the present case now before this Court. In the case decided by Odgers, J., the Railway Company pleaded in defence robbery from a running train and actually produced evidence in order to try and prove that allegation. The Company, however, failed to prove that the theft was one committed on a running train although they did show that when the train carrying the goods arrived at a certain station the Guard found the doors of one of the covered vans open and the plaintiffs bale of goods missing from it. The learned Judge in his decision remarks: One is very much tempted to think that where the Railway Company has five or six of its servants travelling in the train it is not necessary to look to any outside agency to found a case of theft. But I cannot say that that has been established by evidence. In a similar case in B.B. and C.I. Railway Vs. Ranchhodlal Chhotalal and Co., , which also arose on this Risk Note B, the learned Judges point out that though the defendants have failed to prove theft from the running train, the onus is, of course, still on the plaintiff to prove neglect or theft by Railway servants. This, they point out, should have been done before any question is reached of robbery from a running train as that, namely, robbery from a running train, is an exception to wilful neglect. It has also been established in Narayana Aiyar v. The South Indian Railway Company, Ltd. AIR 1924 Mad 388 , that the onus is upon the plaintiff to establish how the loss or deterioration was caused though there the Risk Note was Form H. The case in The Madras and Southern Mahratta Railway Co., Ltd. v. Mattai Subha Rao (8), cited by the learned Counsel for the defendant does not seem to me to touch the case. I am, therefore, with great reluctance, constrained to come to the conclusion that the plaintiff has no remedy on this Risk Note B on the evidence as it stands. The suit must, therefore, be dismissed. The question is whether I should inflict costs on the plaintiff. The defendant, as stated, attempted to prove loss by robbery from a running train and assumed that onus at the trial and failed. This s, as I pointed out, wrong. I do not think that the plaintiff suffered any prejudice from that procedure, but on the whole, I am inclined to dismiss the suit without costs."

14. The first judgment referred to by Mr. Justice Odgers; B.B. and C.I. Railway Vs. Ranchhodlal Chhotalal and Co., , is precisely to the same effect as that of the learned Judge.

15. Under these circumstances I fear that this appeal must be allowed and the decree of the District Judge of Saran set aside and that of the Munsif of Chapra restored.

16. One can only observe once again that, although it may seem that the decisions in these cases bear hardly upon those whose goods are carried by Railway Companies in this country under Risk Note B, the contract is one which involves those who thus confide their goods for carriage to a Railway Company in greatest difficulty in recovering compensation in the case of their loss; the substantial remedy against such a state of affairs lies, however, in the hands of the individual who is in no way bound to enter into a contract of such a type which in effect places him at the mercy of the Railway Company with which he enters into such an agreement.

Adami, J.

17. I agree.