James, J.Babu Nagendra Nath Sen of Calcutta purchased 25 tins of ghee from Babu Lal Shah and Chintaman Ram of Chapra, who despatched the tins to him at Chapra Station on the Bengal and North-Western Railway. When Babu Nagendra Nath Sen went to take delivery of the ghee at Howrah, only eight tins were delivered to him and he was given a shortage certificate on account of the seventeen tins which were not delivered. He subsequently instituted a suit against the Bengal and North-Western Railway Company and the East Indian Railway, claiming the value of the seventeen missing tins on the ground of non-delivery. The Bengal and North-Western Railway Company did not definitely plead that the ghee was lost, but they pleaded in defence that the sender had executed Risk-Notes in Forms A and B; that the loss (not clearly stating whether they meant by their expression loss to the plaintiff or loss by the, East Indian Railway) was not due to any wilful neglect on the part of the railway servants, and that the consignment had been correctly made over to the East Indian Railway. The East Indian Railway admitted the loss of seventeen tins of ghee and pleaded that they were free from liability under the terms of the Risk-Note in Form B executed by the sender. Apart from the shortage certificate given by the Goods Clerk at Howrah Station which was filed by the plaintiff, and the Risk-Notes in forms A and B which were filed on behalf of the defendants, the only evidence on the record is the deposition of the plaintiff, who stated that he did not receive the consignment in question, and gave evidence regarding the value of the ghee; but made no admission that the tins had been lost by the Railway Administration.

2. The Munsif of the first Court of Chapra held that in view of the terms of the Risk-Note the onus lay upon the person seeking to charge the railway company for damages for loss of goods, to show that the case came within the terms of the Risk-Note; that is, to prove that the loss sustained by him was due to the wilful neglect of the railway company or its agents. As this had not been proved he dismissed the suit, and his decision was affirmed on appeal by the District Judge of Chapra. The plaintiff has come up in second appeal from that decision.

3. The learned advocate for the appellant contends that as the Bengal and North-Western Railway Company has not definitely pleaded loss, they are not entitled to the benefit of their Risk-Note; and that in any case it is not sufficient for the railway company merely to admit loss, but that in order to avail themselves of the benefit of the proviso in the Risk-Note they ought also to prove loss. The plaintiff has not anywhere admitted either in his plaint or in his evidence that the ghee was lost. He says that seventeen tins were missing when he came to take delivery and that he himself has suffered a loss, but he does not anywhere plead that the tins were lost by the railway company. But the East Indian Railway who were the agents of the contracting company for carrying the goods over the second part of their journey and their delivery to the plaintiff, had admitted that they had lost seventeen tins. The Bengal and North-Western Railway Company, subsequently filing their written statement, stated that the consignment was correctly made over to the East Indian Railway Company, and that the loss was not due to any wilful neglect on the part of railway servants. These two written statements must be read together; and the effect of them is an admission that the goods were lost during the second half of their journey.

4. There appears to be more substance in the argument of the learned advocate for the appellant that it is not sufficient for the railway company merely to admit loss or destruction of the goods in a suit based on non-delivery, that is to say, before they can claim the benefit of the Risk-Note they must prove the reason for non-delivery is one which brings them within the protection afforded by the terms of the Risk-Note. He cites the order remanding the case of Puran Das v. E.I. Ry. Co. AIR 1927 Pat. 234 in which Mr. Justice Das remarked:

The burden of proof lies in the first instance upon the railway company to establish that the case is within the special contract, that is to say, that the burden of proof lies upon the railway company to establish that there is a loss, destruction or deterioration or damage to the consignment. Once this is established by the railway company, the onus will be shifted upon the plaintiff to show that the loss is due to the wilful neglect of the defendants or their servants as provided by the latter part of the contract.

5. Again, in the case of Ganesh Das-Bisheshwar Lal v. E.I. Ry. Co. AIR 1927 Pat. 193 , Sir Jwala Prasad then Acting Chief Justice remarked;

To put it shortly, in a case of claim against a railway company based on a non-delivery of the goods consigned, it is in the first instance for the company to plead and prove loss, destruction or deterioration and when this is done then the onus shifts upon the claimant to show that the loss, destruction or deterioration was due to the wilful negligence of the company.

6. The case of Puran Das v. E.I. Ry. Co., AIR 1927 Pat. 234 was ultimately referred to the Full Bench for decision. In his judgment in that case the learned Chief Justice remarked:

I agree that the onus of proving that the goods were lost within the meaning of the Risk-Note rests primarily with the railway company which seeks to exempt itself from liability to deliver by reason of the exemptions contained in the contract. If loss as used in the Risk-Note includes pecuniary loss to the owner then that onus has been satisfied in this case. If, on. the other hand, it must be restricted to a loss of the goods themselves, then there is no evidence to show that they were lost, and were this merely a suit based upon failure to deliver them without any averment in the plaint except nondelivery I should hold that the railway company has failed to discharge the onus.

7. In that case the plaintiff had admitted in his pleadings that the goods were lost; and it was held that in these circumstances the defendants were not required to prove loss. But the learned Chief Justice made it clear that in the absence of such an admission evidence to prove loss would have been necessary, saying:

In these circumstances it being admitted that there was a loss of the goods the onus no longer lay upon the defendants to call evidence upon the point which was admitted in the pleadings.

8. The case was ultimately decided upon the pleadings and it must be conceded that the learned Judges who expressed agreement with the Chief Justice did not necessarily adopt his dictum on the necessity of proving that loss had occurred, since it was held that upon the pleadings the reference did not arise. The only Judge who delivered a separate judgment was Mr. Justice Jwala Prasad, whose dictum on this point is as clear as that of the learned Chief Justice:

It must in the first instance, be proved by the company that the circumstances in which exception from the ordinary responsibility is claimed existed in the case. In other words, the railway company must prove that the good consigned were lost, destroyed or deteriorated before they can take advantage of the agreement contained in the risk note. It is not sufficient for the railway company to plead the execution of the risk note or to plead the loss. destruction or deterioration; but the railway company must prove that there was loss, destruction or deterioration such as is contemplated in the agreement set forth in the risk-note.

9. In the leading cases of the Patna High Court there is thus a considerable bulk of authority for the contention that it is necessary for the railway company not only to plead or admit loss but to prove it. In the Calcutta High Court in the case of Gopiram Behariram v. Agent, East Indian Ry. AIR 1926 Cal. 612 , the Acting Chief Justice and Mr. Justice Cuming held:

Before the plaintiff is called upon to prove that the goods were lost by wilful neglect or by theft it must be shown that the goods had been lost. Unless that initial fact is proved, namely, that the goods had been lost, we do not see how the plaintiff can be required to prove how the loss occurred.

10. In the Allahabad High Court in the case of East Indian Railway Vs. Brij Kishore , Sulaiman and Daniels, JJ., held that the railway company cannot claim exemption under the risk-note unless it established that the goods have been actually lost to the company approving the decision in the case of E.I. Ry. Co. v. Firm Kishin Lal Tirkhamal AIR 1924 All. 7 and that in, the absence of evidence of loss the plaintiff is entitled to succeed. In the Bombay High Court in the case of Ghelabhai Punsi v. E.I. Ry. Co. AIR 1921 Bom. 443 the Chief Justice Sir Norman Macleod and Mr. Justice Shah held that it is not sufficient for the railway to admit loss, they must prove it.

11. Mr. Naresh Chandra Sinha, on the other hand, cites a number of cases of the Patna High Court in which it has been held that it is sufficient if the railway company merely pleads or admits loss or theft. Thus, in the case of G.I.P. Ry. v. Datti Ram AIR 1926 Pat. 148 , wherein the railway admitted loss alleging that it was due to a running train theft, it was held by the late Mr. Justice Bucknill that the admission was sufficient to place upon the plaintiff the onus of proving neglect or theft by the servants of the company, saying that it is difficult to understand why the company should be called upon to prove what they expressly admit. In that decision the learned Judge relied upon the earlier decision in the case of G.I.P. Ry. Co. v. Jitan Ram Nirmal Ram AIR 1923 Pat. 285 , wherein, although the present Acting Chief Justice held that the Joss referred to in Section 71, Indian Railways Act, was the loss suffered by the consignee, there is a remark upon which the learned advocate for the appellant lays stress that

the burden of proof lies in the first instance upon the defendants, that is to say, they must prove that there was such loss as is contemplated by the first part of the risk-note.

12. In that case it was ultimately decided that the burden of proof lay upon the plaintiff because he admitted in his plaint. that the goods had been lost; but in view of the decision that the loss contemplated was loss to the plaintiff and not loss by the railway company, it is difficult to say that if there had been no such admission by the plaintiff the case would have been decided in his favour on the ground that the company had failed to prove that the goods had been lost.

13. We are of opinion that in a suit based on non-delivery the railway company must prove loss before they can claim the benefit of the risk-note. In the present case no evidence was given on this point on behalf of the railway companies and they cannot avoid responsibility for non-delivery of the missing tins.

14. The result is that the appeal must succeed. The plaintiff proved quite satisfactorily the value of the missing tins; there was no rebutting evidence; and we consider that his suit should be decreed in full. As to which of the two railways should be held responsible: in the absence of evidence we are left in the dark on the question of what actually happened to the tins; and the suit should be decreed against the defendant company to whom the tins were delivered for carriage. The decree of the lower Courts is sec aside and the appeal is allowed. The plaintiffs suit will be decreed against the Bengal and North-Western Railway Company with interest at six per cent from the date of institution of the suit and costs throughout.

Jwala Prasad, J.

15. I agree.