SECRETARY OF STATE Vs. BHAGWAN DAS

JUDGEMENT

(1.) This case has been argued in revision or rather under Section 25 of the Small Cause Courts Act, and having regard to a decision of Mr. Justice Daniels, reported in Secy of State V/s. U.P. Glass works of Chandausi . and relied upon to some extent by the railway, Mr. Justice Lindsay has referred the matter to two Judges, apparently feeling that unless he differed from the decision he ought to allow the revision, but that, on the other hand, he was not prepared to follow the decision.

(2.) Under the circumstances we do not think it necessary to discuss in detail the decision of Mr, Justice Daniels beyond holding that it does not, in our opinion, apply to the facts of the case before us and that if the true interpretation of it is that in the case before us the Railway Company would be exempt from liability, unless the consignor proved actual misconduct, we should be unable to agree with it, leaving it to other tribunals in other cases which may arise to decide how far our decision is actually inconsistent with that Mr. Justice Daniels decided. In this case the matter seems to us to be perfectly clear. The facts have been found in a very clear and ably stated passage in the judgment of the Small Cause Court Judge. We may summarise his findings in this way. There was one package or bale. It contained dhotis. When it was received at the station of despatch it was weighed in by the weighing clerk, and its weight was correct, and was entered on the forwarding note as being 4 maunds and 26 seers. There was no suggestion that the scales were but of order. The bale when received into custody of the railway servants at the station of despatch and weighed appeared to be in a normal condition, that is to say, it appeared to have been properly packed and showed no signs of slackness in the sewing up or of interference. It then passed into the custody of the servants of the Railway Company for storage in the godown or warehouse or other place where such goods are kept awaiting transport. When the wagon for transport was ready, the bale which had not left the custody of the Railway Company's servants Was then placed in a wagon and the wagon was sealed for transit. On arriving at the destination it was found that although the seal of the wagon was intact the bale Was quite the reverse. It had been opened, it had been re-stitched, it was short in weight, and there were 11 pairs of dhotis missing from it. The seal of the wagon appeared not to have been tampered with, and, therefore, unless some mischievous and dishonest servant had discovered some method of removing the seal and replacing it without leaving any indication of such an operation, it must be assumed that the pilfering undoubtedly took place before the wagon was sealed. A faint suggestion seems to have been made by the Railway Company that the shortage in weight was due to evaporation of moisture. The learned Judge evidently experienced great difficulty in treating this suggestion seriously and we are not surprised, because, whatever evaporation of moisture there may have been, and it is surprising to hear that dhotis can be sold in such a condition, it would be necessary to infer that the 11 pairs of dhoties had leaked out of the hole or restitching and somehow escaped from the parcel-a perfectly ridiculous suggestion. The result, therefore, is that on the evidence called by the Company, because the whole of the facts which we have just summarised constitute the history of the Company's dealings with the parcel from the moment when it was received into their custody, it follows that the leakage or pilfering must have taken place after the goods were weighed while they were in the custody of the Company and before the wagon was sealed. The material provision which relieves the consignor from the burden of proving misconduct is the following sentence: If misconduct on the part of the Railway servants cannot be fairly inferred from such evidence.

(3.) The learned Judge has inferred that the pilferage took place after the goods were received by the booking clerk, and, therefore, as a result of misconduct by the railway servants. We agree and we hold, as no doubt he held that it is the only possible inference to be drawn because even if the railway servants did not themselves commit the pilfering and share the loot, which they probably did, it would have been impossible for anybody to have obtained access to the package in such a way as to extract 11 pairs of dhotis and to sew the package up again without a breach of duty on the part of the Railway Company's servants which would amount to misconduct, because even if it might not be criminal, though in most cases it would be, a railway servant, who is placed as a kind of guardian over the goods of the public in transit, is undoubtedly guilty of misconduct if he allows a trespasser to obtain access to such goods. In our view the risk note creates no difficulty. Where the inference, which the learned Judge in this case has drawn has been drawn and may legitimately be drawn, it is not necessary to call upon the consignor to give evidence of misconduct. Therefore, it Was unnecessary in this case. We think the inference was legitimate and there is no ground for interference with the decision. The head-note of Mr. Justice Daniels judgment undoubtedly purports to deal with C1. B. This case before us arises under C1. B. To take the view that the Railway is protected from liability where it is only a part of a consignment, not consisting of one complete package, which has been lost "seems to us to do violence to the expression" pilferage from a package and to be inconsistent therewith. Pilferage from a package must in nearly every case be of a part of that package, however, many packages there are in the consignment and, therefore, we can only say that if the learned Judge intended his ruling to apply to that provision in C1. B. we are unable to agree with it.