Judgment:

RAGHUBAR DAYAL, J. : This appeal, on certificate granted by the Punjab High Court, arises in the following circumstances.

2. M/s Radha Ram Sohan Lal of Calcutta consigned certain goods to self at Delhi. Of the consignment certain articles were not delivered to M/s. Udho Ram & Sons, the plaintiffs, in whose favour the railway receipt had been endorsed by the consignor. Having failed to receive the compensation for the loss suffered on account of the articles not delivered, the suit giving rise to this appeal was instituted. There is now no dispute about the amount of loss determined by the Court, as suffered by the plaintiffs.

3. The only dispute between the parties is whether the loss of goods in transit between Calcutta and Delhi was due to the misconduct and negligence of the railways or not. The Union of India, the defendant, contended that the loss occurred due to circurnstances beyond the control of the railway administration.

4. The trial Court found that the railway wagon in which the consignment was loaded had been thereafter properly rivetted and sealed at Howrah, that the seals and rivet of one door of the wagon were found open when the train which left Howrah at 1-30 a.m., on October 1, 1949, reached Chandanpur Station at 3-15 a.m., the same night, the train having stopped for 15 minutes at the Howrah-Burdwan Link for the home signal at 2-05 a. m. and that the railway protection police escorted the train. The High Court accepted these findings and they are not questioned.

5. The trial court, however, found that the precaution taken of posting railway protection police in a goods train, in view of the frequent thefts in running trains between Howrah and Chandanpur, Amounted to the railways taking proper care of the goods delivered to them as carriers and that therefore the railways were not guilty of any negligence and misconduct. It was of the view that the railway protection police which usually travelled in the guards van, could not possibly know what was happening in the wagons at the other end or in the middle of the train during the journey. It therefore dismissed the suit.

6. On appeal, the High Court held the railways responsible for the loss which, in its view, was due to its negligence and misconduct inasmuch as there was no evidence on record that the railway protection police took any precautions to see that nobody interfered with the train when it halted for 15 minutes at the Howrah Burdwan Link at night. There was no other arrangement for watch and ward at the Link. There was no evidence as to what was the strength of the railway protection police or to show that it did stir out of the train to see that the wagons were not interfered with. It therefore concluded that the servants of the railway were negligent and did nothing to see that opportunities for theft were eliminated as far as possible, that the railway administration was responsible for the negligence of its employees as it could act through its employees and that therefore the loss of goods was due to the misconduct and negligence of the railways. It therefore reversed the decree of the trial court and decreed the plaintiffs suit for the amount of loss held suffered by the plaintiffs. It is this decree against which the Union of India has obtained the certificate of fitness for appeal from the Punjab High Court and has preferred this appeal.

7. There is no evidence on record that the railway protection police which escorted the train was adequate in strength for the purpose of seeing that the goods were not interfered with in transit. In fact, the defendants did not allege in their written statement that any railway protection police escorted the tram. The presence of the railway protection police with the train was just deposed to by Chatterjee, D. W. 10, the then Assistant Station Master at Chandanpur Railway Station. He did not mention that fact in any of his messages or memorandum in which he simply mentioned the presence of the rail