Under Risk Note Forms A and Z, the Railway Administration is not liable for loss of goods consigned at owner's risk unless misconduct is proven.

Choudhary, J.

1. This is a defendants appeal. It arises out of a suit instituted by the plaintiffs against the Dominion of India for damages for the loss suffered by the plaintiffs.

2. The case of the plaintiffs, briefly stated, is as follows: On 4-7-1947, the plaintiffs booked 263 tins of refined ground-nut oil and 253 tins of vegetable ghee which were loaded in a wagon, from Gane Floor Mills Siding at Cawnpur to Arrah. Both these stations were at that time under the administration of the East Indian Railway. When the consignment reached the destination, it was found that 7 tins of ground nut oil were cracked in the middle and were empty, 32 tins were entirely empty and 12 tins were leaking through joints and were partly empty. It was also found that 4 tins of vegetable ghee were leaking and partly empty. The total shortgage of the ground-nut oil came to be 1 maund 34 seers and that of vegetable ghee to 26 seers. The plaintiffs alleged that the loss to the consignment was due to misconduct on the part of the servants of the Railway Administration and, therefore, they instituted the present suit for recovery of Rs. 1772-0-3 as being the cost of the loss of ground-nut oil, vegetable ghee and profit and expenses.

3. The pleas taken by the defendant which are relevant for the present appeal are that the consignment was not packed in accordance with the instructions Had down in the tariff rules, that as it was booked at "owners risk", there was no liability on the Railway Administration and that there was no misconduct on the part of its servants.

4. The trial Court held that the goods were consigned at owners risk and that the plaintiffs had not been able to prove that there was any misconduct on the part of the Railway Administration or its servants. It, therefore, dismissed the suit. On appeal by the plaintiffs the lower appellate Court held that there was misconduct on the part of the servants of the Railway Administration on account of which loss was caused to the plaintiffs, and it, therefore, decreed the suit. The defendant has, therefore, come up to this Court in second appeal.

5. The lower appellate Court has based its findings holding the Railway Administration guilty of misconduct on two circumstances. The first circumstance is that no portion of the contents of the tins could be found on the floor of the wagon. According to it, if flowing or oozing put of the tins was on account of the damage to the tins or because of their detective packing or loose shunting, then naturally the contents of those tins, or, at least, some portion of them must have been found on the floor of the wagon, and as there was no evidence to show that these were found on the floor of the wagon, it could not be said that the loss was occasioned due to damage to the tins or defective packing. It has relied on the evidence of D.W. 2, a goods clerk, who stated that the goods found on the floor of the wagon had also to be noted in the message hook, and as the message book, Ex. D, produced in this case did not contain any such entry, it held that there must have been pilfering. The other circumstance on which it relied was that the wagon in question was found to have the seal of Arrah on one side and the seal of Cawnpur on the other. It may be noted that the rivets were found intact on both sides. D.W. 2 stated that as there was no seal, so it was sealed at Arrah, though he admitted that the sea] was not put in his presence. The persons of the Watch and Ward Department and Watchman No. 1757, in whose presence the wagon was opened, have not been examined in the case. The seal of Arrah that was found on the wagon was that of the Assistant Station Master of Arrah. This Assistant Station Master has also not been examined in the case. An adverse inference was, therefore, drawn against the Railway Administration for their non-examination. On these two circumstances, as already stated, the Court of appeal below held that the Railway Administration wa