The burden of proving the loss of goods and falling within the exception of the Risk Note Form 'B' lies with the Railway Administration.

JUDGMENT

1. This appeal arises out of a suit to recover Rs. 709-10 as compensation for goods consigned by the plaintiff's agent for carriage by Railway which were not delivered to the plaintiff.

2. It appears that 13 tins of ghee, and one tin of mustard oil, in 7 packages were consigned by the plaintiff's agent at Shahgunj a Station on the Oudh and Rohilkhand Railway to the plaintiff at Howrah. Only one package (containing 1 tin of ghee and 1 tin of mustard oil) arrived at Howrah and the plaintiff was asked to take delivery thereof on giving a full acquittance receipt which he refused to do. The other 6 complete packages did not arrive at Howrah at all and were not delivered to the plaintiff. The plaintiff thereupon served a notice u/s 77 of the Indian Railways Act upon the defendants and brought the suit for compensation.

3. The Court of first instance allowed the claim in part. The Court of Appeal below dismissed the claim altogether. The plaintiff has appealed to this Court.

4. u/s 72 of the Railways Act the responsibility of a Railway Administration for the loss, destruction or deterioration of goods delivered to the Administration to be carried by Railway subject to the other provisions of the Act is that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872, but that responsibility may be limited by an agreement in writing signed by or on behalf of the sender of the goods in a form approved by the Governor-General in Council. The goods in the present case were sent under the Risk Note Form "B" which is approved by the Governor-General in Council. The Risk Note Form "B" states that the consignors, in consideration of a lower charge than the ordinary tariff rat(c) chargeable for the consignment, agree to hold the "Railway Administration and all other Railway Administrations working in connexion therewith, etc., harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever except for the loss of or damage to the said consignment or of one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration, to theft by or to the wilful neglect of its servants, transport agents or carriers employed by them before during and after transit over the said Railway or other Railway lines working in connexion therewith, or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignment: provided the term wilful neglect be not held to include fire, robbery from running train or any other unforeseen event or accident".

5. As stated above,' 6 complete packages were not delivered at all, and the seventh package was tendered but the plaintiff was asked to give a full acquittance receipt. The defence pleaded non-liability under the Risk Note Form "B." The Court of Appeal below held that the burden of proving that the case falls within the exception contained in the Risk Note, viz., that the goods were lost owing to the wilful neglect of the Railway Administration or to theft by or wilful neglect of its servants, etc, is upon the plaintiff. That having regard to the authorities must be held to be so. But 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 have been lost. Unless that initial fact is proved, viz., that the goods have been lost, we do not see how the plaintiff can be required to prove how the loss occurred.

6. The goods were made over to the Railway for carriage, and they have not been delivered to the consignee. How is the consignor or the consignee to know whether they have been lost. We think that it is for the Railway Administration to prove in the first instance that the goods have been lost, and it will be then for the plaintiff to show that the loss was due to the wilful neglect of or theft by Railway servants. That