The main legal point established is that a railway company can be held liable for wilful neglect in securing goods in waggons, and the company must demonstrate taking sufficient precautions to prevent the consequences of neglect.

Kotval, A J C—In para. 1(a) of the written statement filed by the plaintiffs after remand they stated:

That the defendant Company knowing full well that thefts were frequent at Bhusawal and at other stations between Nandgaon and Bhusawal, should have taken special precaution to put sound looks to the waggon, which the defendant Company failed to do.

2. The allegation as to the frequency of the thefts was not denied by the defendant. All that was said was that locking of waggons was not practicable and was not sufficient as a precaution against running train thefts since in several oases even locks were broken in such thefts.

3. That there were frequent thefts as stated by the plaintiffs must be taken to be admitted. That being so, it must be held that there was wilful neglect on the part of the railway in sending goods in waggons sealed with paper, string and wax which had to travel long distances, often to slow down, and make frequent stops at stations and sidings : B. & N.W. Ry. Co. v. Haji Mutsaddi, 1910 7 AllLJ 833 and Bindraban v. G.I.P. By. Co., 1926 AIR(All) 369.

4. The defendant pleaded a ''running train theft'' under circumstances similar to those in the latter of the two cases cited above. The facts pleaded are that the train carrying the goods reached Mhasa-wad which is to the west of Bhusawal at 9 o'clock in the evening of 24th December 1920, and remained there until 10-45 p.m. when it left for Bhusawal, which place it reached at 12-50 a.m. on 25th December. The seal on one side of the waggon which had contained the missing bales was intact at Mhasawad and found broken at Bhusawal. The doors of the waggon were found closed and the two bales in question missing. The theft is thus alleged to have taken place while the train was running to Bhusawal after leaving Mhasawad.

5. The goods were consigned under risk-note B and the defendant relies for exemption from liability upon the proviso at the end of the risk-note stating that the term ''wilful neglect'' will not be held to include robbery from a running train. Merely upon proof of the facts pleaded the defendant cannot successfully plead that there was a robbery from a running train, the word ''robbery'' meaning not simple theft, but theft accompanied by violence or show of violence: see Bindraban v. G.I.P. Ry. Co., in which the reference to the Pull Bench was in the following terms and answered in the negative:

Whether a Railway Company who accepts goods for carriage in accordance with Risk-note Form B can successfully plead that there was a robbery from a running train merely by giving proof of the fact that the goods were on the train at one particular station in a sealed van, and subsequently at a later station were missing from the van, the evidence of the theft being provided by the fact that the seals were broken.... Given those conditions, are the Railway Companies covered by the exception of robbery from a running train?

6. That the question of the practicability or impracticability of providing locks on all railway waggons is irrelevant has been shown in the judgment of Ashworth, J., in the above case. In any case it could not have been impracticable to lock the waggons, for Dwarkanath (D.W. 5) admits that the railway has started locking waggons as a preventive measure and all loaded waggons are now generally locked.

7. Wilful neglect as above, having been proved, it was for the defendant to show that it took other sufficient precautions which would prevent or avert the consequences of such neglect. This has not been proved. As no question was raised in the lower appellate Court regarding the amount of the damages, I set aside the decree of the lower appellate Court and restore that of the trial Court. Costs in this and the lower appellate Court will be paid by the defendant.