Charles Fawcett, A C J - (1.)The plaintiff brought this suit against the Madras and Southern Maratha Railway Co. to recover a sum of Rs. 180-6-0 as damages in respect of five tins of ghee which were consigned to the defendant company at Sangli for conveyance to the plaintiff and which were wholly lost during transit. The goods were sent under a risk note inform (H), which has been amended so that in certain cases it is provided that the Railway Administration "shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor." An issue was raised accordingly whether the plaintiff proves loss arising from misconduct of Railway servants. The First Class Subordinate Judge found that such misconduct was not proved by the plaintiff, but that it could be "fairly inferred" from the evidence given in accordance with the proviso in the risk-note, and he decreed the plaintiff's claim. This decree is challenged by a revision application under Section 25 of the Small Causes Courts Act 1887, which enables us to call for the record of the case and satisfy ourselves, whether the decision is one according to law.
(2.)The first question that arises is as to the limits of our jurisdiction to interfere in a case like the present. It has been laid down that this Court will ordinarily interfere only to remedy substantial injustice, i. e., when a clear error of law is (shown, or there is obvious perversity in the decision of a question of fact : cf. Poona City Municipality V/s. Ramji (1895) I.L.R. Bom. 250 and Mohunlal V/s. Jivan-lal . Primarily, whether there was such misconduct would be a question of fact, On the other hand, when there is no direct evidence of such misconduct, e. g., of some one who saw a railway servant taking the ties, so that the conclusion rests purely upon an inference to be drawn from the circumstances under which the goods were consigned, carried and found to have disappeared, then the question of the proper inference to be drawn can be said to be a question of law : cf. Laohmeawar Singh V/s. Manowar Hossein (1891) I.L.R. 19 Cal. 253, p.c. and Ramgopal V/s. Shamshhaton (1892) 25 Bom. L.R. 93 p.c. Bat there are obvious objections to this Court being called upon under Section 25 to go into decisions of Small Cause Courts as to what is a fair inference in a particular case under this proviso, as if a right of appeal lay to this Court, We should not, I think, interefere, unless it is shown that the inference is not one that can legitimately (or it is perhaps batter to use the exact word of the proviso, viz., "fairly") be drawn from the facts, as was for instance the case in G.I.P. Railway V/s. Himatlal . That case no doubt related to a different form of risk-note from the one under consideration here; but it serves to give a useful illustration of justifiable interference under Section 25, in regard to an inference of misconduct of railway servants that did not fairly arise from the facts found.
(3.)Then again, if the evidence proves facts strongly preponderating in favour of an inference that goes against the view that there was misconduct on the part of the railway servants, this might justify interference under Section 25; for this would moan that the inference of such misconduct clearly was not a fair one, and thus the decision was unjust and not according to law. I take the words "strongly preponderating in favour of" from a passage in the judgment of Bankes L J. in Smith, Ld., V/s. G. W, Ry. Co [1920] 2 K.B. 237, 243 which has been cited in Central India Spinning & Weaving Go. V/s. G, I.P. Ry (1921) 24 Bom. L.R. 272, 280.