Kinkhede, A J C—Out of a consignment of sugar booked from Wadi Bunder on 1st April 1925, consisting of 40 bags, plaintiff got 33 bags only on 9th April 1925. The rest were not delivered. Hence he sued defendant Company for damages caused for non-delivery of his goods. The defence was that the Company was not liable because of the Risk Forms A and B and that the seven bags were lost in transit. Neither party adduced any oral evidence.

2. A perusal of the lower Court's decision, para. 2, will clearly show that the Court below has proceeded on an erroneous view as to the burden of proof in such a case. What the plaintiff alleged was a loss to himself caused by the non-delivery. He did not admit that the goods were lost to the Railway Administration. That was a matter within the special knowledge of the Railway Company and the latter had the burden of proving facts which would show that it had earned the protection of the risk-notes. The law on the point is very clearly set forth in the latest case of the defendant Company reported in G.I.P. Ry. Co. v. Jes Raj Patwari, 1928 AIR(Cal) 65. Rankin, C.J., observes at p. 139 [of 55 Cal.]

It 43 however, necessary for the Railway Company