Charles Arnold White, C.J.
1. The first question for determination in this appeal is whether on the facts found, the defendant companies are protected from liability by reason of the terms of the special contract described as a Risk Note Form B subject to which the plaintiff’s goods were carried by the defendants. The contract is in these terms.
2. T.K. Station, 5–10–99.
3. Whereas the consignment of 162 bags grain tendered by me (us), as per forwarding order No. 4 of this date, for despatch by the S.M. Railway administration or their transport agents or carriers to Calicut Station and for which I (we) have received Railway Receipt No. 4 of same date, is charged at a special reduced rate instead of at the ordinary tariff rate chargeable for such consignment. I (we), the undersigned, do in consideration of such lower charge, agree and undertake to hold the said Railway administration and all other Railway administrations working in connection therewith and also all other transport agents and carriers employed by them respectively, over whose Railways or by or through whose transport agency or agencies the said goods or animals may be carried in transit from Tumkur Station to Calicut Station harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever before, during and after transit over the said Railway or other Railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignments.
Signature of Sandu Basappa.
4. The first defendant (company) in their written statement admit that 161 bags of raggi and one bag of cholam were received by them from the 2nd plaintiff at Tumkur for carriage to Calicut. They say that the consignment reached Bangalore and was there transhipped into the waggons of the second defendant company. The second defendant company in their written statement deny that the plaintiff’s goods arrived at Calicut on October 16th as alleged in the plaint. They admit that a consignment of grain loaded in a waggon the number of which had been changed from 352 to 1327 in accordance with instructions received from the Bangalore City Station reached Calicut and that the 1st plaintiff’s agent claiming the goods in waggon, No. 1327 and producing a, receipt note for 162 bags of grain they began to deliver the goods to the plaintiff, that after the delivery to the plaintiff had com-menced one Abdul Karim claimed the bags as his, pointing out that they bore his private marks. They say that the Bangalore city station subsequently telegraphed to the Station-master at Calicut that the consignment in Invoice No. 25 (the plaintiff’s invoice) had been loaded in waggon No. 352 and not in waggon No. 1327 and that the latter contained the goods of Abdul Karim and they further say ” the consignment under Invoice No. 25 does not appear to have ever arrived at Calicut station.” The receipt note referred to in the written statement is ” Railway receipt No.4 mentioned in the ” Risk note.”
5. The plaintiff’s invoice shows that his goods viz., 161 bags of raggi and 1 bag of cholam rice loaded into waggon 352 and the 2nd defendant company appear to admit in their written statement that the original number of the waggon which carried the goods, which were delivered to Abdul Karim at Calicut was 352. It is not stated in the written statement when the number was changed into 1327 or why it was changed and there does not appear to be any evidence on the point. The plaintiff’s case as set up in their plaint was that the goods were fraudulently delivered to Abdul Karim by the servants of the second defendant company, but the case of fraudulent delivery does not seem to have been seriously pressed in either of the lower courts. The lower appel-late court finds as a fact that the plaintiff’s goods were lost in transit. The onus was on the plaintiffs to prove their case, viz., that the goods which reached Calicut and were delivered to Abdul Karim were their goods. They failed to do this. Section 76 of the Indian Railways Act, no doubt, provides that in a suit against a Railway adminis-tration for loss of goods, it shall not be necessary for the plaintiff to prove how the loss was caused. But the plaintiff’s case is that the goods were not lost inasmuch as they were misdelivered and that the company are liable notwithstanding the special contract. We cannot in second appeal disturb the finding of fact of the lower appellate court unless we are satisfied there is no evidence to support it. The evidence adduced on behalf of the defendants by which they sought to prove the circumstances in which the plaintiff’s goods were lost, is no doubt meagre and confused, but, seeing that the plaintiffs failed to prove the case upon which they relied, viz., wrongful delivery at Calicut and that it is admitted that the plaintiff’s goods at any rate got as far as Bangalore, I do not think it can. be said that there is no evidence to support the finding that the goods were lost in transit.
6. The ” Risk note” in question in the present case is in the form approved by the Governor-General in Council in accordance with Section 72 of the Indian Railway’s Act, 1890 and has been frequently before the courts in this country. See for example the cases reported in Moheswar Das v. Carter I.L.R. 10 C. 210 Tippamma v. Southern Mahratta Railway Company I.L.R. 17 B. 417 Balaram Hun Chand v. S.M. Railway Company I.L.R. 19 B. 159 East India Company v. Bunyal Ali I.L.R. 18 A. 52 and the decisions are uniform that where a Railway Company carries subject to the terms of the ” Risk Note” and fail to make delivery, the Company is exempt from liability. It is, no doubt, difficult to believe that waggon bags, 162 in number, could have been ‘lost’ in the ordinary acceptation of the term, but when goods are carried subject to the terms of the ‘ Risk Note’ no distinction can be drawn on principle between the loss of the whole and of a portion of the goods. As a matter of fact in the Allahabad case the whole of the consignment was lost.
7. It was contended on behalf of other appellants that non-delivery was no evidence of loss and that it was for the defendants to show by affirmative evidence that they had lost the goods. I do not think that this is so. This contention does not appear to have been put forward in any of the reported cases when the Company claimed to be exempt from liability by reason of their special contract and it may be observed that in the case reported in Tippamma v. Southern Mahratta Railway Company I.L.R. 17 B. 42 it is expressly stated that there was no evidence on the one side or the other as to how the goods disappeared. The basis of the plaintiff’s claim is non-delivery of goods which the defendants agreed to carry subject to the terms of the ‘Risk Note.’ There is no doubt a prima facie liability on the defendants to deliver but if the defend-ants set up their special contract and allege loss, (and I think it must be taken that there is an allegation by the 2nd defendant Company of loss though it is a very half-hearted one), I think it is for the plaintiffs to show that the circumstances in which the goods disappeared were not such as to amount to “loss” within the meaning of the special contract. The frame of the plaint in the present case and the form of the 7th issue in the case show that the plaintiff’s advisers were fully alive to this. In the present case the plaintiff sought to show that the goods were not ‘ lost’ inasmuch as they were wrongly delivered; but the lower courts were against them on the facts. The two cases under the Limitation Act to which the learned Counsel of the appellants referred, Mohansing Chawan v. Henry Conder I.L.R. 7 B. 478 and Danmull v. British India Steam Navigation Company I.L.R. 12 C. 477 have really no bearing on the question before us, In these cases it was held that for the purposes of the Limitation Act non-delivery was no proof of loss. It was for the defendants who set up the plea of limitation in these cases to show affirmatively that the goods were lost at a time before the statutory period of limitation. The fact that they were not delivered would not of course show this. The defendants in these cases had to prove the time of the loss, not the mere fact of the loss.
8. On the findings of fact by the lower courts, I think we have no alternative but to dismiss this appeal with costs.
9. I concur.