JUDGMENT Iqbal Ahmad, J.
1. This is a defendant's application in revision, from a decree of the Court of Small Causes, and arises out of a suit brought by the plaintiff for damages for shortage in the goods consigned by him. There is no controversy about the facts. On 30th September 1929, 160 bags of sugar weighing about 420 maunds were despatched under risk note forms A and B from Kantapokar to Agra City. The usual time taken for the goods to arrive from Kantapokar to Agra City if transmitted across the ordinary route is five or six days. The wagon containing the goods was taken on the ordinary route up to Tundla, but, owing to a mistake, instead of being sent from there to Agra City it was sent to Aligarh. The wagon remained at Aligarh for some time and then the goods were unloaded and were ultimately despatched to Agra on 31st October 1929, where delivery under protest was taken by the plaintiff. The consignment, when delivered to the plaintiff, was about 30 maunds short in weight and the plaintiff claimed damages with respect to the same.
2. The defendant contested the suit inter alia on the ground that the loss did not arise from any misconduct on the part of the railway administration and that the loss was due to the fact that the bags in which the sugar was consigned were insecure, and that the railway administration was protected by risk note forms A and B. The learned Judge of the Court below overruled the pleas in defence and passed a decree in the plaintiff's favour.
3. The learned Counsel for the applicant contends that, notwithstanding the diversion of the goods from the ordinary route for a short distance, the railway administration is protected by risk notes forms A and B and that even if it is not open to the railway administration to take protection under either of the risk-notes from A and B, the burden lay on the plaintiff to prove that the loss was due to the goods being diverted from the ordinary route and that the shortage in weight had not occurred up to Tundla and, as the plaintiff had failed to prove the fact, the suit should have been dismissed. I am unable to agree with the contention of the learned Counsel for the applicant, Risk-note form A is used when the consignment tendered for carriage is either in bad condition or is defectively packed and is consequently liable to damage, leakage or wastage in transit. In the present case the consignment was in single gunny bags hook marked and weak at seams, liable to tear or burst and to sweat in transit from inherent moisture and, by signing form A, the consignor - undertook to hold the railway administration harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the railway administration servants.
4. The consignor further, in consideration of the consignment being charged at a special reduced rate instead of at the ordinary tariff rate, agreed, by signing form B, to hold the railway administration free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct of the railway administration's servants.
5. It appears to me that the exemption from liability afforded to the railway administration by the risk-notes forms A and B is operative and available to the railway administration only during the transit on the ordinary route and once the goods are diverted from that route the protection afforded by these risk-notes ends. In the absence of a clear and unambiguous stipulation to the contrary the presumption is that the consignor, at the time of consigning his goods, contemplates that the goods would be transmitted across the ordinary route within a reasonable time and the railway administration must in such cases always be deemed to have accepted the goods for dispatch by the ordinary route. The contract evidenced by risk-notes forms A and B does not contemplate the carrying of the goods otherwise than by the ordinary route, and if there is a diversion from the ordinary route, it does not matter for what distance, the railway administration cannot invoke to its aid the benefits of the said forms. The decision of this Court in G.I.P. Ry. Co. v. Jugul Kishore Mukat Lal A.I.R. 1930 All. 132, is direct authority for the proposition that, where owing to a mistake or negligence on the part of the railway company's servants, the goods are diverted from the ordinary route, with the result that considerable delay takes place in the arrival of the goods at their destination thereby causing loss to the consignor, the protection given to the railway company by the risk note B ceases to be operative as soon as the goods are taken out of their ordinary route. But it is argued that notwithstanding the diversion of the goods, the railway company is entitled to invoke to its aid the benefit of form A. This argument is untenable. Neither in risk-note form B nor in risk-note form A there is any exemption from liability given to the railway administration for any loss arising from the delay in the delivery of the goods at its destination owing to the goods not being taken on the ordinary route, and it seems to me that the reasons assigned in the case noted above for depriving the railway administration of the benefits of form B apply with equal force to the case of form A. In short, I hold that the moment the consignment was dispatched from Tundla to Aligarh the protection afforded to the defendant by forms A and B ended, and the responsibility of the defendant must be judged by reference to the provisions of Section 72, Railways Act, untrammelled by the stipulations contained in the said forms.
6. By Section 72, the responsibility of the railway administration is subject to the provisions of the Railways Act, that of a bailee under Sections 152 and 161, Contract Act, 1872. Section 161, Contract Act, imposes on the bailee the duty of delivering the goods to the bailor at the proper time and, if owing to the default of the bailee the goods are not so delivered, he is responsible to the bailor for any loss, destruction or deterioration of the goods from the time that they ought to have been delivered. In the present case the fact that the goods were not, by default of the railway administration, delivered at the proper time at their destination is undisputed. It is also a fact that the goods were short in weight at the time of delivery. The shortage in weight must have occurred either during the transit of the goods up to Tundla or when they were dispatched from Tundla to Aligarh and were lying there, or partly up to Tundla and partly after the dispatch from Tundla. It is argued that as the goods were insecurely packed and were liable to leakage and wastage in transit, the plaintiff is not entitled to hold the defendant liable for the short-gage in weight, unless and until he proves that there was no shortage in weight till the goods reached Tundla. In other words, it is contended that the default of the bailee commenced only from the time that the goods, instead of being sent to Agra city direct from Tundla, were dispatched to Aligarh and not before, and that the plaintiff must, as a condition precedent to a decree in his favour, affirmatively prove that the loss arose subsequent to the commencement of the default by the bailee. The argument, though ingenious is without substance. From the time that the goods were delivered to the defendant for carriage they were in his custody and control. The plaintiff had no means of access to them, nor had he any meang of discovering the exact quantity of leakage or wastage as the goods passed over every mile of the railway line from the station that they were dispatched from. To call upon the plaintiff to prove that no shortage in weight occurred up to Tundla would be tantamount to ask the plaintiff to do something; which is impossible, and would be to reduce the statutory liability of a bailee, as provided for by Section 162, Contract Act, to an absolute farce. In my judgment the moment the default of a bailee, in circumstances like those of the present case, is established and, his responsibility falls to be determined by Section 161, Contract Act, the burden shifts on to him to prove that the loss, for which he is sought to be made responsible by the bailor, occurred prior to the commencement of default on his part. When the goods are solely under the control of the bailee the fact as to when loss, destruction or deterioration occurred, ia a matter specially within his knowledge and therefore the burden of proving that the loss occurred at a particular time and not subsequently must, in view of the provisions of Section 106, Evidence Act, be on him.
7. In the present case there was no evidence called by the defendant to prove that the shortage in weight occurred before the goods arrived at Tundla and therefore the plaintiff was in law entitled to a decree for damages for the shortage in goods. I hold that the defendant was liable to answer the plaintiff's claim and the suit was rightly decreed. I dismiss this application with costs.