Macleod, C.J:— The plaintiff delivered seven bags of miscellaneous goods to the defendant company for carriage from Bombay to Dhulia via Chalisgaon. He signed risk note in Form B. Six bags were delivered correctly at Dhulia. One bag unfortunately, instead of being taken out at Chalisgaon, was carried on to Jalgaon, and some days afterwards was brought back and delivered to the plaintiff. Plaintiff complained that there was a shortage of nineteen seers in the contents. The defendant company admitted the shortage. They claimed, however exemption from liability on the strength of the risk note. We think there was a clear deviation from the route origin by intended when the goods were delivered for transit in these circumstances, we think that in any event the onus would lie upon the railway company, if they claimed exemption under the risk note, to prove that the shortage had not occurred during the deviation. That they never attempted to do. The case we have been referred to, viz., Arunachellam Chettiar v. The Madras Railway Company(1), does not assist the railway company, because the facts in that case were entirely different. The Court there relied upon the decision in Hales v. London and North Western Railway Company(2) in which it was held that a customer dealing with a company is bound not only by the ordinary route, but also by the ordinary train arrangements and hours of arrival according to which they profess to carry.
2. Here it cannot be said that the deviation was due to the ordinary train arrangements, for it was clearly due to a mistake on the part of the company's servants.
3. We think the case of Vali Mohomed v. G.I.P Railway(3) is clearly applicable in that case it was proved that the loss had occurred during the deviation. But the general principle was laid down that the company by carrying the goods via Kalyan, went outside the terms of the contract and could no longer rely on the protection afforded by the risk-note so as to be absolved from liability for the loss which had occurred.
4. We must, therefore, make the rule absolute, and pass a decree in favour of the plaintiff for the amount claimed with costs throughout.
5. Rule made absolute.