Bengal Nagpur Railway, Co. vs Janki Das Marwary

Dhavle, J.—These are three applications u/s 25, Small Cause Court Act, arising out of three suits against, the petitioner, the B.N.R. Co., for compensation for damage by wet to 3 consignments of ata, flour and suji which were carried by the petitioner from Ramkrishtopur Station to Jaychandipahar Station on its own line in May, August and September, 1933. There was no dispute that damage was actually caused to the consignments, and it was in fact assessed by an Assistant Commercial Inspector of the petitioner. The consignments were covered by Risk Notes in Form H, under which the Railway Administration is to be held harmless and free from all responsibility for any damage to the consignments

from any acts whatsoever, except upon proof that ... damage arose from the misconduct of the Railway Administration''s servants.

The lower Court found that the petitioner''s servants had acted in violation of various rules in connexion with these consignments and that damage was caused by

rain water entering into the wagons, which were either leaky or were not securely closed and made water-tight owing to the negligence of the defendant company and their servants.

Relying on Jamunadas Ramjas v. EI Ry. Co. Ltd. 1988 Pat 630, the lower Court held that the defendant was therefore not absolved from liability for the damage. The learned Advocate for the petitioner has urged that the findings of fact of the Court below are open to exception, but in my opinion, there is no substance in the contention. It appears that two of the consignments, which were loaded in August and September, were carried in C type wagons, regarding which there was a special standing order issued in May 1931, (Ex. 4) and repeated in May 1933, (Ex. J), laying down that special care must be taken to see that the widows are securely fastened and that there is no likelihood of rain penetrating. The evidence adduced on behalf of the plaintiffs was to the effect that the flap doors, windows and roofs of the wagons had let in the water that had damaged goods. Against this we have the statements of an Assistant Train Examiner at Shalimar, D.W. 1, and a Siding Clerk at Ramkrishtopur Station, D.W. No. 3, for the petitioner, that they had examined the wagons and found them in good condition the examination of the Assistant Train Examiner was as the lower Court has pointed out, of a very cursory character, though there was a special standing order regarding the careful inspection of the roofs of vehicles, while the Siding Clerk, who admittedly made no note about his alleged examination of the wagons in August and September, has naturally so little knowledge of the particular wagons that he only claims that the wagons loaded by him had an iron sheet roofing because most of the C type wagons have such roofing and he can not say if water goes inside the wagons in case the doors are left loose;" another witness; examined for the petitioner was a Shed Clerk at Ramkrishtopur Station, who speaks of loading the consignment of May 1933, in a wagon of the A-2 type; he was unable to define this type of wagon, and while he admits that he made no note of the examination of the wagon and that there is no paper to show that the wagon had a steel sheet roof (as claimed by him) and not a corrugated iron roof (as claimed by the plaintiffs), his professed inability to say if the bags were dry or wet when they were loaded makes him a thoroughly unreliable witness.

The only Other witness examined for the, petitioner was the Assistant Commercial Inspector, who takes up the impossible, position that corrugated roofs and flap doors are not prohibited in the rainy season, which is directly opposed to Clauses (b) and (f) of para, 11 of the Special precautions to be observed, in dealing, with, damageable traffic during the monsoon" issued in May 1931, and reported, so far as flap doors are concerned, in. C1; (e) of Rule 11 of the standing orders of May 1933, which lays down that wagons with flap doors and window should never be used. I have already referred to another clause in the standing order Which requires that in C type wagons or foreign Railway wagons of similar types special care must be taken to see that the windows are securely fastened and that there is no likelihood of rain penetrating. There is also a rule requiring Station Masters and goods clerks to examine the condition of all wagons before loading and satisfying themselves that the wagons supplied are water-tight and serviceable, and to make an entry in'' the Station Diary to show that they have done so. The plaintiffs called for these entries but none was produced, and it is obvious that this rule also was not observed in connexion with any of the three consignments in question. It is true that the earliest consignment was carried in May and not during the monsoon; but the papers show that in this case there were 12 bags found damaged by water near the flap door of the wagon, and no attempt was made on behalf of the petitioner to show why such goods were loaded near the flap door arid the latter, as one may well infer in the circumstances of this case, not securely fastened. The finding of fact of the lower Court that damage was done by rain water entering into the wagons, which were either leaky or were not securely closed and made water-tight, is clearly right on the evidence.

The only question in these cases thus is whether on this finding the petitioner has been rightly held liable as upon proof that the damage arose from the misconduct of the Railway Administration''s servants. The learned Judge below has indeed held the petitioner liable for damage "owing to the negligence of the defendant company arid their servant" but this was because Jwala Prasad, J., in the case from Jamunadas Ramjas v. EI Ry. Co. Ltd. 1988 Pat 630 held that a mere neglect of duty will, charge the Railway Administration or its servants with misconduct and bring the case with in Risk Note H or A (which latter uses the same phraseology, so far as is material at present). "Misconduct would'' ordinarily," said the learned Judge.

mean failure to do what is required of a person to do. Certainly it was the duty of the Railway Administration to provide against such ordinary contingency, such as rain water forcing itself into the wagon and causing damage to grain, etc., in it. The fact that the rain water did enter the wagon and caused damage to the plaintiff''s consignment is itself sufficient to show that proper and requisite precautions were not taken by the Railway Administration to provide against such contingency.

It has been urged by the learned advocate for the petitioner that this is not the law, and that the misconduct contemplated by the risk note involves "wilful neglect" at the very least, as was held by two Division Benches of this Court in Durga Dutt''s Shri Ram Firm v. Secy of State 1930 Pat 283 and B.N. Ry. Co. v. Hukam Chand Hardat Rai 1930 Pat 559. These cases however are perhaps distinguishable on the ground that they were cases not of damages, but of loss, which latter is governed by a special provision in the risk-notes relating to proof of "misconduct on the part of the Railway Administration or its servants." But apart from this, "misconduct" is not a term of art. In ordinary parlance it means bad management or mismanagement, being often used quasi-specifically (as may be seen from the Oxford English Dictionary) in the sense of malfeasance or culpable neglect of an official in regard to his office. The word is sometimes said to connote moral obliquity, but it seems to me that this is largely due to the fact that the word is also used in the sense of improper conduct or wrong behaviour especially adultery; the word conduct" itself means not Only "manner of conducting business, etc." but also "behaviour" specially in its moral aspect, as good or bad conduct. In an English case which is often quoted Lewis v. G.W. Ry. Co. (1877) 3 QBD 195, dealing with the question of the wilful misconduct" of Railway servants, Brett, L.J., said that wilful misconduct must mean,

the doing of something, or the omitting to do something, which it is wrong to do or to omit, where the person who is guilty of the act or the omission knows that the act which he is doing, or that which he is omitting to do, is a wrong thing, to do or to omit ... he is doing a wrong thing, and ... that is misconduct, and ... as he does it intentionally he is guilty of wilful misconduct.

There is, I think little reference to ethics when misconduct in railway risk notes is taken, to mean the doing of at wrong thing; and it is clear that such misconduct may or may not be wilful. It was thus that in B.N. Ry. Co. v. Moolji Sicka & Co. (1930) Cal 815, Suhrawardy, J. and Patterson, J., concurring after referring to the English cases, held that the word "misconduct" in these risk-notes is wide enough to include wrongful commission and omission, intentionally or unintentionally any act which it wrongfully did or which it wrongfully neglected to do, or, to put it in another way, did what it should not have done and did not do what it should have done, or any unbusiness like conduct including negligence or want of proper care. The learned advocate has relied on this case as an authority for the proposition that misconduct cannot be inferred from defects found in the wagon at the arriving station, if it is shown that the wagon was in a good condition when it left the starting station. But the present is not a case of that kind at all. Suhrawardy, J''s. construction of the term "misconduct" was apparently considered too wide in Secy. of State v. Dhokalmal Mahadihlal 1981 Cal 784, where Mitter, J., with whom Patterson, J., agreed, said that it was not necessary to consider whether an unintentional omission will amount to "misconduct", seeing that on the facts of the case under consideration there was clearly deliberate omission to padlock the wagon--deliberate in the sense that it was not accidental but the usual practice. Breaches of definite rules leading to damage have been repeatedly held to amount to ''misconduct": see B.N. Ry. Co., Ltd. v. Moolji Sicka & Co. 1929 Cal 654, and another case between the same parties reported in B.N. Ry. Co. Ltd. v. Moolji Sicka & Co. 1982 Cal 70, it is indeed difficult to imagine how "misconduct" could possibly be so construed as to exclude such breaches.

The learned advocate has also referred to M. & S.M. Ry. Co., Ltd. v. Sundarjee. Kali Das 1933 Cal 742, in which Guha, J., (sitting singly) took it from the English cases that misconduct is not necessarily established by proving even culpable negligence and is something opposed to accident or negligence-dicta which however refer not to misconduct simpliciter but to wilful misconduct. The learned advocate has also cited Secy, of State v. Firm Jhaddu Lal Hazari Lal 1933 All 460, where Kisch, J., declined to infer "misconduct" from damage by wet to raw sugar because it did not appear that there was anything wrong with the wagon either at the beginning or at the end, the goods in question being inherently susceptible to the damp atmosphere during the monsoon season. This again is of no help to the petitioner in the circumstances of this case. The learned advocate also referred to S.I. Ry. Co., Ltd. v. V.M.K.S. Dandayutham Chettiar 1934 Mad 715, where Madhavan Nair J., declined to apply Jamunadas Ramjas v. EI Ry. Co. Ltd. 1988 Pat 630, and to infer misconduct" from damage done to bags of rice in transit on account of rain blowing in through the crevices of the doors; the wagon had been found watertight at the preceding and also at the following periodical examination, and the learned Judge held that no inference of misconduct could fairly arise in the absence of proof that there was any breach of duty by the railway servants concerned, while the railway could do no more than what they had done, viz., provide a water-tight compartment. This again is inapplicable to the facts of the present case with its deliberate breach of the precautions prescribed. It is not necessary in the facts of the present case to say whether Jwala Prasad, J.''s construction of "misconduct" is not too wide in some respect, and in particular whether the risk-note permits the Court to find misconduct from the mere fact that rain water did enter the wagon and cause damage to the consignment: for the present is a case of definite breach of the rules for dealing with such consignments and of damage which is clearly traceable to such breach.

The learned Judge below called it "negligence," but it is obvious from his reference to the ruling in Jamunadas Ramjas v. EI Ry. Co. Ltd. 1988 Pat 630, that what he meant was misconduct within the risk-notes. Turning now to the two Patna cases relief on for the petitioner, Durga Dutt''s Shri Ram Firm v. Secy of State 1930 Pat 283 was a case, in which the Court of first appeal dismissed a suit for compensation for loss of a bale of cloth consigned over certain, railways under risk note B on the finding that no wilful neglect had been proved The risk-note spoke of misconduct, and in these circumstances Wort, J., (with whom Kulwant Sahay, J., agreed), held that if the plaintiff fails on the evidence to prove a wilful neglect, it must necessarily follow that he will equally fail in proving misconduct, which at any rate cannot be said to be something less than wilful neglect. In the case from B.N. Ry. Co. v. Hukam Chand Hardat Rai 1930 Pat 559, James, J., (Chatterji, J., concurring) saw no reason to differ from this, view, but said

after all, wilful neglect is misconduct; and 1 think that the reasonable view is to hold that, the term "misconduct" means "wilful neglect" including a fortiori anything more culpable.

The facts of the case were that the lower Courts had concurrently found that, the plaintiffs'' loss was due to misconduct, on the part of the Railway Administration in carrying the goods in a wagon which was not locked but only fastened with a rivet sealed with wire and lead which could be broken open by an expert, in 45 seconds, and the train moved at a, very slow pace in that part of the journey in which the theft had occurred. It may be doubted in these circumstances how far the learned Judge intended positively to hold that misconduct cannot be anything less than wilful neglect, for he proceeded on the footing that "after all, wilful neglect is misconduct," and earlier in the judgment he had doubted the correctness of the dictum in Madras and S.M. Ry. Co., v. Jumakhram, Parbhudai 1928 Bom 504, that "misconduct" does not ordinarily cover acts of negligence, after pointing out, while dealing with the case of B.B. & C.I. Ry. v. Rajnagar Spinning Co., Ltd. 1930 Bom 129, that the misconduct, referred to in the risk-note is not such, misconduct of railway servants as may amount to a failure of duty towards their employers, but such misconduct oh the part of railway servants or the railway administration itself as amounts to a failure of duty towards the consignor. There is, at any rate, nothing in the observations of the learned Judge to show that an unexplained and, habitual failure to act in accordance with rules or standing orders obviously designed to prevent damage by wet to goods in transit such as we have in, the present case, does not amount to misconduct. The learned advocate for the petitioner has urged that the non-observance of rules need not amount to misconduct if the wagons in which the goods were loaded were absolutely water-tight and that the rules were only precautionary. But in the first place it has not been satisfactorily shown in the present case that the wagons were absolutely water-tight the examination at Shalimar seems from Ex. D-2. to be sometimes at any rate directed to ascertaining merely whether the wagon is fit for running, and no railway witnesses speak even in the monsoon of testing the wagon for holes--and secondly, the special standing order that wagons wit a flap doors and windows should on no account be used for carrying damageable traffic during the monsoon itself shows that it is not enough to have a wagon with a Water-tight roof. In my opinion the breach of rules established in the present case is such as to amount to "misconduct even within the ruling in B.N. Ry. Co. v. Hukam Chand Hardat Rai 1930 Pat 559. There is therefore no need to interfere in revision u/s 25, Small Cause Courts Act. The applications are accordingly dismissed with costs. Hearing fee 2 gold mohurs for all the three cases together.