Jetmull Bhojraj vs The Darjeeling Himalayan Railway Co.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 402 of 1959

Decision Date: 2 May 1962

Coram: A.K. Sarkar, J.R. Mudholkar, Subba Rao

In the case of Jetmull Bhojraj versus The Darjeeling Himalayan Railway Company, the Supreme Court of India rendered its judgment on 2 May 1962. The bench comprised Justice A.K. Sarkar, Justice J.R. Mudholkar, and Justice K. Subbarao. The petitioner, Jetmull Bhojraj, had on 10 May 1946 consigned a total of 259 bales of cloth from the station identified as W on the Great Indian Peninsula Railway to the station G on the Darjeeling Himalayan Railway, which was designated as respondent No. 1. Of the 259 bales, only 169 bales were reported to have reached the destination around 7 June 1946. The remaining ninety bales had not arrived, prompting the petitioner to send a telegram on 1 July 1946 to respondent No. 1 requesting early delivery of the outstanding goods. Subsequently, on 9 July 1946, the petitioner dispatched a letter stating that the earlier telegram had gone unanswered and that the ninety bales had still not reached the destination, and it urged the railway to take necessary action to effect immediate delivery. The outstanding ninety bales eventually arrived at station G shortly before 21 December 1946, at which time the petitioner wrote another letter informing respondent No. 1 that the consignment had arrived in a severely damaged condition and requesting that open delivery be granted without delay. Open delivery was granted on 12 February 1947, and the parties agreed on an assessment of the damage to the goods. Because the petitioner’s claim remained unsettled, a suit for damages was instituted on 9 April 1948. Respondent No. 1 defended the suit by arguing that the petitioner had failed to serve the notice required by section 77 of the Indian Railways Act 1890 within six months of the delivery of the consignment to the Great Indian Peninsula Railway, and that the suit was barred by the limitation period, having been filed more than twelve months after the alleged damage occurred. The Court, however, held that the letter dated 9 July 1946, which was sent within six months of the booking of the consignment, constituted sufficient notice within the meaning of section 77, and that the letter also implied a claim for compensation for the damage to the ninety bales.

In this case, the Court explained that when a party alleges that his consignment has not been delivered in accordance with the contract that he has with the railway, that allegation must be understood as a declaration that he will hold the railway to its contractual obligations, and that such an obligation inevitably includes a claim for damages for breach of the contract. The Court further held that the suit was not barred by the limitation provision contained in article thirty of the Indian Limitation Act, 1908. The Court stated that the onus was on the respondent to prove that the loss or injury had occurred more than one year before the suit was filed and that the liability had not been discharged. The Court referred to the decision in Union of India v. Amar Singh, reported in 1960 2 S.C.R. 75, as authority supporting that position.

Justice Sarkar, speaking separately, observed that section seventy‑seven of the Indian Railways Act, 1890, is a mandatory provision that requires a claimant to formally prefer a claim for compensation. He said that a mere letter requesting that the goods be searched for and delivered did not satisfy the statutory requirement. He added that the claim under section seventy‑seven had to be preferred within the six‑month period prescribed by the statute, irrespective of whether the claimant was then aware that the goods had been lost, destroyed or damaged. He noted that the appellant became aware of the damaged condition of the ninety bales on twenty‑first December 1946 and that the damage must have occurred before that date. Consequently, the appellant’s suit, which was instituted on ninth April 1948, was, in Justice Sarkar’s view, barred by the limitation period set out in article thirty of the Indian Limitation Act, 1908. The judgment was delivered in the civil appellate jurisdiction as Civil Appeal No 402 of 1959, arising from the decree dated fifteen March 1956 of the Calcutta High Court in appeal from Original Decree No 236 of 1949. Counsel for the appellant and respondents were listed, and the case concerned a suit for damages relating to ninety bales out of two hundred and fifty‑nine bales of cloth that had been delivered on ten May 1946 at Wadi Bunder station on the Great Indian Peninsula Railway, intended for carriage to Giellekhola on the Darjeeling Himalayan Railway. The goods had to be conveyed over four railways – the Great Indian Peninsula Railway, the East Indian Railway, the Bengal Assam Railway and the Darjeeling Himalayan Railway – all of which, at the material times, were owned by the Government of India except the Darjeeling Himalayan Railway, which was owned by a private company.

The Darjeeling Himalayan Railway Company entered liquidation and its liquidators were entered into the record of the proceedings. On 7 June 1946, one hundred and sixty‑nine bales of cloth were delivered to the appellant, to whose name the railway receipt had been endorsed. Subsequent correspondence dealt exclusively with the remaining ninety bales, which formed the subject of the present suit. In about September 1946 the wagon containing those ninety bales was located at a station called Gadkhali on the Bengal‑Assam Railway. Further letters were exchanged, and the ninety bales finally reached the station of Giellekhola shortly before 21 December 1946. Upon receipt, the appellant discovered that the consignment was in a severely damaged condition and immediately requested that the Darjeeling Himalayan Railway make open delivery of the goods. On 12 February 1947 the railway complied and delivered the contents of the ninety bales to the appellant. At that time the parties – the appellant, the Bengal‑Assam Railway and the Darjeeling Himalayan Railway – agreed that the loss incurred amounted to Rs 27,920‑13‑6. On 29 January 1948 the appellant issued a notice under section 80 of the Code of Civil Procedure to the Secretary of the Railway Department of the Government of India, demanding a total sum of Rs 34,192 as compensation for the damage caused by the railways’ negligence. This larger amount comprised the previously agreed sum of Rs 27,920‑13‑6 together with additional sums representing the difference between the ex‑mill price and the retail price of the cloth, as well as a refund of the railway freight charges. A similar demand was addressed to the Darjeeling Himalayan Railway, but the railways rejected the claim. Consequently, on 9 April 1948 the appellant instituted a suit for damages. The trial court rendered a decree solely against the Darjeeling Himalayan Railway for the amount of Rs 27,920‑13‑6. The railway appealed the judgment to the Calcutta High Court, while the appellant lodged a cross‑objection asserting that the decree should have been made against all the railways involved and for the full amount claimed. The High Court dismissed the cross‑objection and upheld the appeal, leading to the present appeal. The court observed two principal grounds for dismissing the appeal. First, the suit was time‑barred under article 30 of the Limitation Act, which provides a one‑year limitation for actions against a carrier for damage to goods. The evidence and the plaint indicated that the damage occurred before 21 December 1946. The plaint recorded the appellant’s statement that prior to receipt of the bales at Giellekhola in December 1946 it was impossible to know of any damage, but that as soon as the bales arrived the damaged condition was brought to the railway’s attention.

In the evidence, the appellant submitted a written statement indicating that the damaged condition of the bales was first brought to the attention of the railway authorities on the very day the goods arrived. The statement read: “Before the receipt of those bales at Giellekhola in December 1946 it was not possible for the plaintiff to know about the aforesaid damaged condition of those bales, but no sooner the same arrived the fact that the same arrived in hopelessly damaged condition was brought to the notice of the railway authorities concerned.” On the same date, the appellant also addressed a letter to the Political Officer of Sikkim, who had purchased the cloth, in which it was reported: “we have been advised by our Tista Bridge agent that the consignment of 90 bales has now arrived at Giellekhola but the same has reached in a very damaged condition.” A further letter, written sometime before 29 January 1947 – the exact date is not recorded – was also sent by the appellant to the Political Officer of Sikkim. That letter stated: “It has been nearly one month the cloth arrived at Giellekhola in a hopeless condition and no further step is being taken by the railway. We beg therefore to request that steps may very kindly be taken to expedite the settlement of the same.” These communications, taken together, clearly demonstrate that the damage to the goods had already occurred prior to 21 December 1946.

The trial court had previously held that the description of damage in the correspondence could refer only to the outward appearance of the bales and could not, by itself, establish the existence of internal damage that could be verified only after the bales were opened and an open delivery was made. However, the appellate review found that the trial court misplaced the relevant issue. For the purpose of determining the limitation period, the crucial question is not whether the appellant had personally inspected the interior of the bales, but whether the damage itself had taken place. The case on hand does not involve any allegation that the railway had deliberately concealed the condition of the goods. Moreover, the plaint itself asserts that the damage occurred before December 1946, a point the trial court failed to acknowledge. In addition, one of the letters referred to above contains an explicit statement by the appellant that the goods themselves were damaged in December 1946. The appellant’s demand for an open delivery was merely a procedural step intended to quantify the extent of the loss. This is evident from the appellant’s letter dated 21 December 1946 to the Political Officer of Sikkim, which reads: “We beg, therefore, to request you to kindly instruct the General Manager, D. H. Railway, Kurseong, telegraphically to give open delivery of the consignment and to give a receipt for any loss or damage.” No evidence was presented to show that any damage occurred after 21 December 1946 or after 12 February 1947, when the open delivery was finally effected. It would be unreasonable to argue that only the external surface of the bales was damaged while the contents remained intact, especially given the appellant’s consistent claim that it became aware of the damage on 21 December 1946, a date that necessarily follows the occurrence of the damage.

In this case the Court noted that the appellant became aware of the damaged condition of the bales on 21 December 1946. Because the appellant learned of the damage on that date, the damage must have occurred before 21 December 1946. Consequently the suit should have been instituted within one year from the date of damage, as required by Article 30 of the Limitation Act, together with an additional two‑month period prescribed for the notice contemplated in section 80 of the Code of Civil Procedure, which the appellant could rely on under section 15(2) of the Limitation Act. Since the damage preceded 21 December 1946, a suit filed on 9 April 1918 was clearly beyond the limitation period. The Court further held that the appeal must fail because the appellant did not serve any notice under section 77 of the Railways Act, 1890. Section 77 provides that a person is not entitled to compensation for loss, destruction, or deterioration of goods delivered for carriage unless a written claim is presented to the railway administration within six months from the date of delivery of the goods for carriage. This provision is mandatory; failure to make a claim within the six‑month period bars recovery and requires dismissal of any suit. The Court found no evidence that the appellant lodged a claim within the statutory period. Although the appellant sent several letters to various railways, including the Darjeeling Himalayan Railway, during that period, each letter merely requested that the railway conduct an inquiry to locate the missing ninety bales and expedite their delivery. None of those letters contained a claim for compensation for deterioration of the goods. The Court emphasized that a request to trace and deliver the goods does not satisfy the requirement of section 77, which demands an explicit claim for compensation. Accordingly the Court could not treat the letters as compliance with section 77. The purpose of section 77 is to prevent stale claims, as noted in Governor‑General in Council v. Musaddi Lal (1). If no claim is filed within the prescribed time, that purpose is defeated. The Court concluded that because the appellant failed to make a written claim for compensation within six months, the claim is time‑barred and the suit must be dismissed.

The Court observed that the letters addressed to the railway Administration could not be interpreted as containing any claim, either expressly or by necessary implication. The view expressed by the Court aligns with decisions of several High Courts. In Salem Dayal Bagh Stores Ltd. v. The Governor General in Council, Justice Happell held that Exhibit P‑3 could not be treated as a notice satisfying the requirements of section 77 because it made no claim for compensation; it was merely a letter stating that the goods had not arrived and requesting that enquiries be made. Similarly, in Mardab Ali v. Union of India the Court observed that a letter indicating that nothing was known about the goods and asking the railway Administration to locate them did not satisfy section 77. The Court emphasized that the fatal flaw in those letters was the absence of any demand for compensation and that a notification of a claim under section 77 must necessarily contain such a demand. No authority opposing this position was brought before the Court.

In the present case, it was submitted that the appellant could not have preferred a claim for damages for deterioration of the goods within the six‑month period prescribed by section 77 because the appellant had no knowledge of the loss when the period expired. Relying on the maxim lex non cogit ad impossibilia aut iniuria and on a passage in Maxwell on the Interpretation of Statutes (tenth edition, page 385), the appellant argued that performance of the statutory condition should be dispensed with on grounds of impossibility. Consequently, the appellant claimed that the suit was maintainable even though no claim had been formally lodged with the railway Administration as required by section 77. The Court rejected this argument as a misreading of the provision. The Court held that section 77 expressly requires that a claim for compensation for loss, destruction or deterioration of goods be preferred within six months of the date of delivery to the railway, regardless of whether the claimant was aware of the loss at that time. Knowledge of the loss does not excuse non‑compliance; failure to preference a claim within the statutory period bars recovery later and would render the mandatory protective provision of the section nugatory. Thus, the Court concluded that the appellant’s contention of impossibility could not prevail.

In the present case, the Court examined the meaning of section 77 which required that a claim for loss, destruction or deterioration of goods be preferred within six months of the date of delivery to the railway. The Court observed that the provision did not make it impossible to prefer a claim merely because the claimant was unaware, at the time, that the goods had been lost or destroyed. The requirement of six‑month notice applied irrespective of the claimant’s knowledge. The Court rejected the appellant’s argument that, when goods were not delivered, the claimant could not have known of their loss and therefore could not have filed a claim within the prescribed period. The Court held that it was not the intention of the legislature to create such a result; the section clearly contemplated that a claim had to be lodged within the stated time even if the claimant learned of the loss later. The same principle applied equally to damage of goods; ignorance of the damage did not render compliance impossible. The Court further explained that the section did not demand a claim for a specific sum of money; a general claim for damages was sufficient. Consequently, a claim for loss or destruction would also cover damage where the goods were eventually delivered in a damaged condition, the larger claim encompassing the smaller. The Court emphasized that the object of the provision was to prevent stale claims and to enable the railway administration to conduct prompt enquiries before evidence was lost. Accepting the appellant’s contention would defeat this purpose. Accordingly, the Court concluded that the appellant should have preferred a claim under section 77, and because it had not done so, the suit could not succeed. The appeal was therefore dismissed with costs.

The appeal before the Court arose from a certificate granted by the High Court of Calcutta under Article 133(1)(a) of the Constitution, which set aside a decree for damages that had been entered in favour of the appellant firm by the Subordinate Judge, Darjeeling. The factual background was that the appellant had consigned two hundred and fifty‑nine bales of cloth from Wadi‑Bunder, a station on the Great Indian Peninsular Railway (now the Central Railway), to Giellekhola, a station on the Darjeeling Himalayan Railway (now in liquidation), on 10 May 1946. Of these, one hundred and sixty‑nine bales arrived at the destination on or about 7 June 1946. Because the remaining bales had not been delivered, the appellant sent a telegram on 1 July 1946 to the General Manager of the Darjeeling Himalayan Railway requesting early delivery of the outstanding bales. The appellant followed up the telegram with a letter dated 9 July 1946, reiterating the request and asking the General Manager to see that the remaining bales reached the destination.

After the appellant’s telegram of 1 July 1946 and the confirming letter of 9 July 1946 requesting the General Manager of the Darjeeling Himalayan Railway to ensure prompt delivery of the remaining bales, a series of communications took place between the appellant, the Political Officer of Sikkim (to whom the bales were ultimately to be delivered), and the administration of the Darjeeling Himalayan Railway. The Court did not consider it necessary to recount the entire exchange, but it noted a letter dated 21 December 1946 sent by the appellant to the Darjeeling Himalayan Railway. In that letter the appellant reported that the consignment had arrived at Giellekhola in a severely damaged condition and urged that the consignment be released for open delivery without further delay. The Darjeeling Himalayan Railway complied on 12 February 1947, when its Commercial Inspector authorised open delivery of the goods to the appellant’s assistant manager, identified as Tulsi Ram, P.W. 1. The damage to the consignment was jointly evaluated by the Commercial Inspector of the Darjeeling Himalayan Railway and the Claims Inspector of the Bengal Assam Railway, who together assessed the loss at Rs 27,920‑13‑6. Their assessment list bore the signatures of both inspectors as well as that of Tulsi Ram. Subsequently, on 26 June 1947, counsel for the appellant, identified as Mr A. C. Chatterjee, lodged a claim for Rs 34,192 against three parties: the Manager of the Bengal Assam Railway, the General Manager of the Darjeeling Himalayan Railway, and the firm Gillander Arbuthnot & Co., which acted as Managing Agents for the Darjeeling Himalayan Railway. On the same day, counsel also addressed a similar claim to the administration of the Great Indian Peninsular Railway. The Superintendent of Claims for that administration, based in Bombay, rejected the claim on the ground that it had not been presented within six months of the date of booking, as mandated by section 77 of the Indian Railways Act, 1890 (Act IX of 1890). It is relevant that the consignment had traversed the networks of the Great Indian Peninsular Railway, the East Indian Railway, the Bengal Assam Railway, and finally the Darjeeling Himalayan Railway, and that no notice under section 77 appears to have been given to the East Indian Railway. Because the claim remained unresolved, the appellant instituted suit before the Subordinate Judge in Darjeeling on 9 April 1948. In that proceeding the Dominion of India was made defendant No 1, ostensibly representing the Great Indian Peninsular Railway, the East Indian Railway, and the Bengal Assam Railway, while the Darjeeling Himalayan Railway was named as defendant No 2. Both defendants denied the appellant’s claim. The Dominion of India filed two separate written statements, one on behalf of the Great Indian Peninsular Railway and another on behalf of the East Indian Railway. The only point of relevance in those statements was the alleged failure to comply with the provisions of section 77 of the Indian Railways Act. The principal defendant, the Darjeeling Himalayan Railway, put forward several contentions. The first contention was that the appellant had failed to give the notice required by section 77 within six months of the delivery of the consignment to the Great Indian Peninsular Railway for the purpose of claiming compensation for the damage to ninety of the bales. The second contention was that the suit was time‑barred because it had been filed more than twelve months after the date on which the damage was deemed to have occurred.

In this case the appellant argued two points. First, he claimed that the notice required by section 77 of the Indian Railways Act had not been given to the railway administration within six months after the consignment was delivered to the G.I.P. Railway. Second, he contended that the suit was barred by limitation because it had been filed more than twelve months after the date on which the damage occurred. The learned Subordinate Judge dismissed the suit insofar as the Dominion of India was concerned, holding that no notice under section 77 had been served on the administrations of the G.I.P. Railway, the E. I. Railway, or the B. A. Railway. Nevertheless, the Judge found that a telegram dated 1 July 1946 and a letter dated 9 July 1946, both addressed to the Manager of the D.H. Railway, satisfied the statutory requirement of a written claim under section 77. He further concluded that the limitation period applicable to the suit was that prescribed by Article 30 of the Limitation Act, interpreting that a suit filed within one year from the date the plaintiff discovered the loss would be timely. Accordingly, the Subordinate Judge entered a decree of Rs 26,92013‑6 against the second defendant and dismissed the claim against the first defendant. The second defendant appealed to the High Court, but before the appeal could be heard the second defendant went into liquidation, and the liquidators were then impleaded as respondents. The plaintiff raised a cross‑objection challenging the part of his claim that had been dismissed, and later amended that cross‑objection to seek a decree alternatively against the G.I.P. Railway or the E.I. Railway. The High Court allowed the appeal and dismissed the plaintiff’s cross‑objection, holding that the provisions of section 77 had not been complied with and that the suit, which fell under Article 31 of the Limitation Act, was barred by the limitation period. The first issue before this Court is whether the appellant had fulfilled the requirements of section 77 of the Railways Act. The relevant portion of that section provides: “A person shall not be entitled to compensation for the loss, destruction or deterioration of goods delivered to be so carried unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the goods for carriage by railway.” Indian High Courts have interpreted the purpose of serving notice under this provision as enabling the railway administration to investigate whether the loss resulted from the consignor’s neglect or from the wilful negligence of the railway and its employees, and to prevent stale or potentially fraudulent claims that, because of delay, could not be properly examined. In support of this interpretation the Court may refer to several earlier decisions, including Shamsul Huq v. Secretary of State.

The Court referred to several earlier authorities to illustrate the judicial approach to section 77 of the Railways Act. The cases cited included Mahadeva, Ayyar v. S. I. Railway Co. (2); Governor‑General in Council v. G. S. Mills Ltd. (3); and Meghaji Hirajee & Co. v. B. N. Railway Co. (4). It observed that, keeping in view the purpose of the provision, a number of High Courts had held that a notice under section 77 must be interpreted liberally. The Court expressed the view that such a liberal construction represented the correct method of construing a notice filed pursuant to that section. In considering the legislative intent behind the enactment of section 77, the Court concluded that the legislature aimed primarily to protect the railway administration from fraudulent or dishonest claims, rather than to create a device for denying consignors their rightful compensation for loss or damage suffered by their goods while in transit. The Court underscored this point by referring to the cited authorities: (1) (1930) L.R. 57, Cal. 1286; (2) (1921) I.L.R. 45, Mad. 135; (3) (1449) I.L.R. 28 Pat. 178; and (4) A.I.R. 1939 Nag. 141. Having regard to these considerations, the Court determined that the letter dated 9 July 1946, filed as Exhibit I (y) and dispatched within six months of the booking of the consignment, satisfied the requirements of a sufficient notice under section 77.

The Court set out the substance of the July 9, 1946 letter, which read in part: “We confirm our telegram sent to you reading as under on 1st inst. Invoice 5 tenth May, Wadi Bunder Geka part ninety bales not reached. ‘Please reach urgently’ and regret very much to inform you that we have as yet heard nothing in response thereto nor the part ninety bales have reached destination. Will you, therefore, please take necessary action to cause the part consignment to reach destination immediately.” The Court observed that the letter unmistakably placed before the railway administration the fact that ninety bales out of a total consignment of 259 bales had failed to arrive at their destination. Moreover, the letter expressly requested that the General Manager of the Darjeeling Himalayan Railway take prompt action to ensure the pending portion of the consignment was delivered without delay. While the letter did not contain an explicit claim for compensation, the Court held that the claim was necessarily implied. It reasoned that a consignor who informs the carrier that the goods have not been delivered as contractually promised is, by implication, invoking the carrier’s contractual liability, which includes the obligation to pay damages for breach. Accordingly, the Court concluded that the letter both satisfied the object of section 77 and carried an implied claim for compensation. Finally, the Court noted that the language of section 77 requires a notice to be given to each railway administration against which a suit may be filed. It pointed out that the appellant had not served a notice within six months on the G I P Railway administration, the E I Railway administration, or the B A Railway administration, and therefore the requirement of notice was not met with respect to those carriers.

Because the first defendant booked the consignment, the Court held that, with respect to that party, the suit had to be dismissed as properly filed. This dismissal, however, did not benefit the second defendant. Regarding the second defendant, the Court noted that, as previously determined, a notice under section 77 had been served within six months of the booking date. The Court then turned to the question of limitation. The High Court had applied Article 31 to a suit of this kind. The first column of Article 31 states that a claim may be made “against a carrier for compensation for non‑delivery of, or delay in delivering, goods.” The third column of the same article provides that the limitation period begins “when the goods ought to be delivered.” The learned Subordinate Judge, by contrast, argued that Article 30 was the proper provision. The first column of Article 30 reads “against a carrier for compensation for losing or injuring goods,” and its third column says that the limitation starts “when the loss or injury occurs.” The Court agreed that Article 30 was more appropriate than Article 31 because the appellant sought compensation for damage to goods that were eventually delivered, not for non‑delivery or delay. Nevertheless, the Court needed to determine the commencement point of the limitation period. Under the third column of Article 30, the limitation period begins on the date the loss or injury to the goods occurs. The Court observed that a consignor cannot usually pinpoint the exact moment when loss or injury happened. In Union of India v. Amar Singh, this Court held that the onus lies on the railway administration that wishes to defeat the plaintiff’s claim on limitation grounds to prove that the loss or injury took place more than one year before the suit was filed. The D. H. Railway made no such proof. The only evidence offered by the railway was that the appellant became aware in December 1946 that the consignment appeared damaged. The railway relied on Exhibit B, a letter dated 21 December 1946 in which the appellant reported that the consignment had arrived at Giellekhole “in a very damaged condition.” The letter referred only to damage to the outer covering or package, not to the contents. Moreover, delivery occurred almost two months after the letter, making it impossible to determine whether the damage observed at delivery had arisen before 21 December 1946 or thereafter. Only the D. H. Railway, which retained custody of the goods, could have definitively stated when the damage occurred. Based on the material before the Court, it could not be concluded that the suit was filed beyond one year after the cause of action accrued, and therefore the limitation defence could not succeed.

The Court observed that the suit was not time‑barred, because the limitation period had not yet expired when the cause of action accrued. Having decided that point, the Court noted that another issue required examination, namely whether the damage to the goods had arisen while the consignment was in the custody of the Darjeeling Himalayan Railway. The railway company, in its written statement, asserted that it had received a shipment consisting of ninety bales at Siliguri from the Bengal Assam Railway and that it had subsequently transshipped the bales to Giellekhole without any alteration in condition. The Court remarked that the railway offered no evidence to substantiate this claim of an unchanged condition. It then referred to section eighty of the Railway Act, which places upon the consignor the burden of proof when he seeks to sue a railway other than the one that originally booked the consignment; the consignor must demonstrate that the damage occurred on the defendant railway’s system. The Court found that this principle was correctly stated. Nevertheless, the Court explained that where a consignor receives a consignment already damaged from the delivering railway, the evidential burden shifts to the delivering railway to prove that the damage did not arise on its own line. Such a burden could be discharged only by showing, with satisfactory proof, that the goods were already damaged before they entered the railway’s possession. In the present case, the Court observed that the Darjeeling Himalayan Railway had not adduced any evidence to rebut the presumption that the damage was caused on its system. Consequently, the presumption remained unrebutted. On this basis, the Court concluded that the appeal against the Darjeeling Himalayan Railway must be allowed. The Court further noted that a claim for approximately rupees five thousand five hundred, raised by the appellant in a cross‑objection, had not been pressed before it, and therefore it was not considered. Accordingly, the Court allowed the appeal in part, set aside the decree of the High Court insofar as it concerned the Darjeeling Himalayan Railway, and restored the decree of the trial court. The appellant was ordered to be awarded his proportionate costs against the Darjeeling Himalayan Railway. In accordance with the majority opinion, the Court thus allowed the appeal in part, vacated the High Court’s decree as it related to the Darjeeling Himalayan Railway, reinstated the trial court’s decree, and awarded the appellant his proportional costs against that railway. Appeal was thereby allowed.