Agarwala, A.C.J:— These two appeals by the defendant are from a decision of the Subordinate Judge reversing a decision of the Munsif in two suits which were tried together. On 9th January 1943, the plaintiff handed over to the East India Railway Co., two consignments of cloth at Cawnpore for despatch to Gaya. One consignment consisted of three bales and the other of two bales. Both consignments were covered by a Risk Note in Form Z which, in so far as its terms are relevant for these appeals, exonerates the Railway Company from liability for the loss of a part of a consignment, except in cases where the loss is due to the misconduct of the Company or its servants. Out of one of the consignments one bale was not delivered to the consignee and neither of the bales of the other consignment was delivered to him, with the result that he instituted two suits out of which these appeals have arisen. The Court of appeal below has found that the theft took place at Karamnasa, a station between Mogulsarai and Gaya, and that the theft was with the connivance of the railway servants at Karamnasa or due to their misconduct. The facts are that the train arrived from Cawnpore at Mogulsarai with the seals of its wagons intact. The seals on the doors of the wagons were checked at Mogulsarai before the train left there. At Karamnasa the train was shunted on to a dark siding. It was the duty of the Guard to check the seals of all the wagons in the train at Karamnasa. He did not do so. Some twenty minutes after the train had been put on the siding it was reported to the Guard that the door of one of the wagons was open. The Guard then went to this wagon and verified the fact that the door was open and reported the matter to the Assistant Station Master who had the door resealed. When the wagon reached its destination, namely, Gaya, it was found that the loss I have mentioned above had occurred.
2. The findings of the Court of appeal below are challenged on the ground that the Court has drawn an inference adverse to the defendant from the omission to examine the Watch and Ward men who were on duty at Karamnasa, or to produce the reports which they made relative to the train of which the wagon carrying the missing consignments was apart. It is contended that this inference should not have been drawn against the defendant in this case in view of the fact that, after the defendant had produced his evidence, be offered to examine such further evidence as the plaintiff should desire, and the plaintiff did not then call upon him to examine the Watch and Ward men or to produce their reports. In support of this proposition reference was made to the decision of the Privy Council in 64 I.A 176.1 That case, however, so far from supporting the proposition for which it is cited, is a complete authority for the contrary. The facts in that case were that the doors of a wagon containing bales of cloth were opened while the train was at the station at Buxar, and a number of bales were removed after the train had left Buxar.
3. The Guard, whose duty it was to examine the seals on the doors of the wagon, was not among the witnesses whom the defendant at first examined. At the close of; the defendant's evidence, however, an application was made to examine this Guard on commission. The application was rejected. At a subsequent stage of the litigation the defendant offered to examine the Guard in Court, but did not eventually do so. The Privy Council held that an inference adverse to the defendant could be drawn by reason of the non-examination of the Guards although it will be noticed that at no time had the plaintiff called upon the defendant to produce this witness. In fact the Privy Council pointed out that it was clearly for the defendant himself to decide whether he had produced all the evidence which he desired to adduce in order to avoid an inference of misconduct. Here too, the defendant, in order, to avoid an inference adverse to him for non-examination of the Watch and Ward staff at, Karamnasa and for the non-production of the reports, should have examined the men who were on duty. The mere fact that the plaintiff did not call upon the defendant to produce this evidence was no reason why the Court below should not have drawn an adverse inference against the defendant on the ground of the non-production of this evidence.
4. Furthermore, there was ample evidence from which the Court could infer that the theft did not take place while the train was in motion from Mogulsarai to Karamnasa, but at Karamnasa itself, and that the removal of the goods from the wagon was with the connivance of, or due to the misconduct of the railway staff at Karamnasa. With regard to the first of these points, the evidence discloses that the seals of the wagon containing the bales were checked at Mogulsarai and found intact. The bales were of sufficient weight to require a number of men for their removal. The Guard in charge of the train did not notice the presence of such a number of men anywhere on the track between Mogulsarai and Karmnasa. There is no evidence that the door of the wagon was found open on its arrival at Karmnasa. The fact that the door was open was not disclosed to the guard until twenty minutes after the train had been put on the siding. The only person or persons who could have stated whether the door was open on the arrival of the train were the men who made the report to the guard and who have not been examined. This evidence and these circumstances afford an ample basis for the Court below to have come to the conclusion that the theft took place at Karamnasa. With regard to the Court's finding that the removal of the goods was with the connivance or owing to the misconduct of the railway staff at Karamnasa, the evidence and the circumstances are also sufficient for this purpose. From the evidence of the guard, it would appear that there were two Watch and Ward men on duty at Karamnasa. Unless these persons took part in the removal of the goods or connived at their being removed, it is incredible that three heavy bales of cloth should have been removed from the wagon without anybody noticing it. I am, therefore, satisfied that there is no reason to interfere with the view taken by the Court below that the loss of these goods was due to the misconduct or connivance of the railway staff. The appeals must, therefore, be dismissed with costs. There will be only one hearing fee for both the appeals.
Meredith, J.:— I agree.
S.C
5. Appeals dismissed.