A railway administration is not liable for loss of goods unless it is proved that the loss was due to misconduct of its servants.

Jamuar, J.

1. This second appeal is by the plaintiff whose suit has been dismissed by both the Courts below.

2. The suit was brought by a firm carrying on business at Bermo, a station on the East Indian Railway, against the Union of India as the defendant. The plaintiffs case was that, on 21-5-1348, his agent had delivered to the employees of the Oudh Tirhut Railway at Darbhanga railway station 630 tins of ghee, weighing 203 maunds 20 Seers, for being delivered to the employees and agent of the plaintiff at Bermo station,

The plaintiffs agent was given a railway receipt and an invoice which was endorsed in favour of the plaintiff. The goods were delivered to the plaintiff at Bermo in two instalments, the first instalment having been delivered on 11-6-1948, and the second on 31-7-1948. It was discovered that some of the tins of ghee were in a damaged condition while some other tins had been cut open. On weighment, there was found a shortage of 10 maunds 25 seers 8 chhataks of ghee. The plaintiff alleged that he had served notices upon the railways concerned for payment of compensation for the loss sustained by him; but, since the railway did not compensate him for, the loss, he instituted the suit out of which the present appeal has arisen.

3. A number of defences were taken in the trial Court; but it is necessary only to state that part of the defence to which arguments in the present appeal have been confined. It was stated by the defendant that the consignor of the tins of ghee had executed Risk Notes in forms A and B under which the defendant was not liable and had been absolved from any liability arising out of loss or damage or deterioration in respect of the consignment; and, in the same connection, it was alleged that the shortage, in the consignment had been due to bad and defective packing by the consignor himself, and that there had been no misconduct or negligence on the part of the railway administration or its servants. The other defence, with which we are concerned in the present appeal, was that the suit was Bad for non-joinder of parties, as the plaintiff had not made the Oudh Tirhut Railway a party to the suit.

4. Mr. Katriar, who has appeared for the plaintiff-appellant, contended, in the first place, that the onus lay upon the defendant to prove that the consignor of the tins of ghee had executed Risk Notes in forms A and B, but that, since the defendant had failed to prove that fact, he, could not take up a defence of the kind which he has taken on the ground of the execution of those Risk Notes. It may be stated at the outset that the Risk Notes in forms A and B were not produced at any stage of the case. The courts below, however, placed reliance upon the railway receipt (exhibit B) under which the consignment had been booked. Almost at the top of this receipt, there are printed these words "Risk Note Form", and then there are the words in carbon "A B". From this note made on the railway receipt, an inference has been drawn in the Courts below that the receipt, on the face of it, shows that the consignment was booked subject to Risk Notes in forms A and B. Mr. Katriar has strongly contended that no such inference could be drawn merely upon the note made on the railway receipt, as it was the bounden duty of the defendant to prove the due execution of the Risk Notes in forms A and B.

5. Risk Note in form A is used when articles are tendered for carriage which are either already in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit; and the Risk Note in form B is used when the sender elects to despatch at a "special reduced" or "owners risk" rate, articles or animals for which an alternative ordinary" or "risk acceptance" rate is quoted in the tariff.

In this latter Risk Note, the consignor, in consideration of payment of a lower charge, undertakes to hold the railway administration harmless and free from responsibility for any loss, destruction or deterio