Pande, J.This is a petition against the order dated 26th January 1944, of the Small Cause Court Judge of Raghunathpore, in the district of Manbhum, dismissing the petitioners claim for compensation for the loss of a portion of the article consigned by him through railways. It appears that on 2nd December 1942, the petitioner consigned 14 mds. 11 srs. betelnuts in ten bags at the Howra East Indian Railway Station for delivery at the Jaichand Pahar Railway Station on the Bengal Nagpore Railway line. The consignment of the said quantity of article and its shortage at the delivery by 24 seers are not in dispute. The only point of difference between the parties is regarding the opposite parties liability to compensate for the loss. It has been proved that the consignment of the article was tinder Risk Note Form A u/s 72(2)(b), Railways Act, 9 [IX] of 1890. Section 72 provides:

72. (1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under Sections 151, 152 and 161, Indian Contract Act, 1872.

(2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it--(a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and (b) is otherwise in a form approved by the (Federal Railway Authority)

2. By the terms of the agreement in Risk Note Form A the railway administration are exonerated from all responsibilities

for the condition in which the goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants.

Therefore the only point that arises for consideration is whether in the particular case the shortage at the delivery of the goods consigned arose from misconduct on the part of the Railway Administrations servants. The article in question was carried by the East Indian Railway up to Asansole Railway Station where it was made over to the Bengal Nagpore Railway Administration for carriage to the destination, Jaichand Pahar Railway Station.

3. In the written statement on behalf of Bengal Nagpore Railway Company it is stated that the consignment was received by them "in good condition." The Transhipment Clerk (D.W. 3) also deposed to the same effect. The Transhipment Clerk further stated that the goods had been transhipped at Asansole in good condition. It is stated that Jaichand Pahar Station is twenty-five miles only from Asansole. At the station of destination one of the bags was found partly torn and on weighment there was a shortage of 24 seers in the goods delivered. There is nothing to show that any part of the goods lost was found scattered about in the carriage in which it was transhipped from Asansole to Jaichand Pahar. In the Goods Tally Book of Jaichand Pahar Station there is a note "One bag M/19 in torn condition, contents falling out, not re weighed due to no scale in yard." This note appears to have been made in the book by the Assistant Station Master of that Station. He stated that he received such a note from the Guard in charge. But no such note of the Guard was produced by the defendants, nor was the Guard examined. There appears to be no explanation for not examining the Guard though a number of other clerks were examined on behalf of the defendants.

4. In these circumstances it is contended by the learned advocate for the petitioner that the obvious inference is that the loss in question arose from misconduct on the part of the Railway Administrations servants. The learned Small Cause Court Judge, however, refused to draw such inference from the above circumstances mainly for the reason that the petitioner had failed to prove "as to how and when exactly the tearing in that particular bag was caused." The learned Small Cause Court Judge appears to have taken the view that the burden of proof being on the petitioner it was necessary for him to establish affirmatively misconduct on the part of the Railway administration. When both parties have entered into evidence, the question of onus of proof is not very material and the Court has to draw its conclusion from the evidence and attendant circumstances. In the circumstance of transhipment of goods through railway it is well nigh impossible for a consignee to establish categorically as to how and when exactly or by which servant of the railway administration misconduct was committed resulting in the loss of goods.

5. In the present case, it seems to me, the circumstances, as established, reasonably lead to the inference that the loss of a portion of the goods in question arose from misconduct of the servants of the railway administration in charge of the goods from Asansol to the station of destination. Our attention has been drawn to a note at the bottom of the "receipt" (Ex. A1) and the "record" attached to the goods in consignment note (Exs. B and E-1). The note is not clearly decipherable. The receipt clerk who issued the invoice has stated that the said note in the invoice is "old single gunny stitches weak liable to driage." The learned Small Cause Court Judge could not read so much in the said note and he could decipher only the words "old single gunny." There are some more words but it is difficult to decipher them even with the help of magnifying glass.

6. The learned advocate for the opposite party referring to the said note contended that the shortage in the goods at the station was due to the defective packing of the article consigned in old bag and so one of the bags got torn in transit and a portion of the article was lost. It is argued that in such circumstance it cannot reasonably be inferred that shortage of goods arose from misconduct of railway administrations servants. There would have been much force in this contention even if a portion of the lost goods would have been found scattered about in the carriage and collected at the station of delivery in the short distance transit from Asansole to Jaichand Pahar station. But there is no evidence to the effect that any part of the article that is said to have come out of the bag which is said to have got torn in the course of transit was collected at the station. The question naturally arises what became of those goods that came out of the torn bag.

7. In, the absence of reasonable explanation there can be only one answer to this question that it was taken away by the railway administrations servants in charge of the goods or lost through their gross negligence. Therefore it must be held that the loss of the goods arose from misconduct of the railway administrations servants. The learned Small Cause Court Judge appears to have fallen into an error in drawing inference from the well-established facts and circumstances by laying too much stress upon the burden of proof upon the petitioner who claimed compensation for the loss.

8. Another point that has been urged is that the relief, if any, to which the petitioner may be entitled would be against the railway administration of the Benal Nagpore Railway which has since gone into liquidation and the claim for damage should have been made against the liquidator and defendant 1 who has taken over management of that railway cannot be liable for loss of goods that occurred before Bengal Nagpur Bail-way Administration was taken over by them. But the provisions in Section 80, Railways Act clearly furnish an answer to this contention. That Section provides:

Notwithstanding anything in any agreement purporting to limit the liability of railway administration with respect to traffic while on the railway of another administration, a suit for compensation, for loss of the life of...or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked over the railways of two or more railway administration may be brought either against the railway administration...to which the animals or goods were delivered by the consignor thereof, as the case may be, or against railway administration on whose railway the loss, injury, destruction or deterioration occurred.

9. In the present case the goods were consigned at the railway of defendant 1 and were carried over and delivered at the railway of defendant 2. Therefore both the defendants are jointly and severally liable. Therefore defendant 1 is equally liable to make good the loss by payment of compensation to the same extent as defendant 2.

10. Therefore, in my opinion, this contention must fail.

11. I would accordingly allow the petition, set aside the order of the Court below and decree the suit for payment of the compensation as claimed. The petitioner will get costs of this Court as well as of the Court below. Hearing fee assessed at one gold mohur.

Fazl Ali, C.J.

I agree.