Governor General in Council vs Motilal Kajriwall and Another

Sinha, J.—This is an application in revision u/s 25, Small Cause Courts Act against the judgment of the Small Cause Court Judge of Motihari in Small Cause Court Suit No. 14 of 1942. The plaintiffs opposite party instituted the suit out of which this application arises, for recovery of Rs. 360-15-0 as compensation from the defendant company (the B. N. W. Ry. Company) for damage done to sixty bags of ata. It appears that a consignment of 137 bags of ata was booked at Cawnppre Central Goods-shed, East Indian Railway, for Motihari on 9th August 1941, under Risk Notes in forma A and H. The B. N. W. Ry. Company took charge of the consignment on 22nd August 1941, in a sound condition under a clear receipt loaded in a wagon which was examined and found fit to run and whose flap doors had been securely closed and sealed. The wagon, containing the consignment in question, reached Chapra Railway Station on 26th August 1941. On that very date it reached Dighwara Railway Station where it met heavy and incessant rains, as a result of which further running of the train was stopped, and the train with the wagon, containing the consignment, was detained at Dighwara until 6th September 1941. This was due to the fact that there was sinkage of railway line owing to heavy and incessant rains. The wagon reached Motihari Railway Station on 7th September 1941. The seals and rivets of the wagon were found intact; but sixty bags of ata were found damaged by wet. The damage was assessed at Rs. 360-15-0 by the Traffic Claim Inspector of Bettiah. The plaintiffs instituted the suit as aforesaid basing their cause of action on the allegation that the damage was due ,to the misconduct of the railway administration''s servants. It is not clear in the plaint as to what the alleged misconduct was except that the result, that is to say, the fact of a part of the consignment having been damaged by wet, was pleaded as the effect of the misconduct of the railway employees. It was not suggested as to what they had done or failed or omitte''d to do.

The petitioner as defendant filed a written statement denying that the damage was caused by carelessness or wilful negligence or misconduct of the railway employees; that the goods were carried in a wagon passed to be quite fit to run during the monsoon; and that the flap doors had been closed tightly riveted and sealed. The company, further, alleged that the ata appears to have been damaged by rain water while the wagon was detained in transit between Dighwara and Sonepur, as the railway line was rendered unsafe, on account of heavy and incessant rains. The learned Small Cause Court Judge decreed the claim; it recorded its findings in the following terms:

It is clear that the flap doors and that roof of the wagon had let in the water that had damaged the goods. Kedarnath says that the flap doors were tightly closed, sealed and riveted by the chowkidar in his presence. He also says that the goods were despatched in a water-tight wagon. He also says that by no means could water enter that wagon. If really the flap doors had been tightly closed, sealed and riveted no water could have entered that wagon. It appears that the flap doors were not tightly closed and hence the rain water entered the wagon and damaged the goods. If the flap doors had really been securely fastened no rain water could have penetrated the wagon. The fact that the goods were damaged clearly shows that either the flap doors were not securely fastened or that the flap doors became loose during the transit. If they had been tightly sealed and riveted then according to Kedarnath the Transhipment Clerk by no means could water had entered that wagon. There was a heavy and incessant rainfall and the wagon was lying at Dighwara railway station from 26th August 1941 to 6th September 1941. The station master says that he did not examine the wagons attached to the goods train although it was his duty to see that no damage was done. The damage was clearly caused to the goods while the wagon was lying at Dighwara railway station. Thus there was wilful negligence on the part of the company''s servant and it was due to the misconduct of the railway servants that the damage was caused.

It would appear from the extract from the judgment of the learned Small Cause Court Judge that he was not inclined to believe the evidence of the railway employees to the effect that the flap doors had really been securely fastened, though his findings are not absolutely clear as to what the railway employees should have done in the circumstances disclosed by the evidence. Neither the plaintiffs in their plaint nor in the evidence gave any indication as to the acts which could be said to constitute the misconduct alleged. It is settled law that the misconduct has to be proved by the plaintiff. The inference of misconduct has to be raised from the facts and circumstances proved by evidence. In this case the evidence does not seem to go beyond this that, most probably the flap doors had not been securely fastened and that the wagon was not water-tight, as alleged, because, if these were so, the goods would not have been damaged by rain water forcing its way into the wagon. In other words, the plaintiffs would put their case as high as saying that it was the case of res ipsa loquitor. The only case, which goes as far as the plaintiffs would wish the Court to go, is the decision of Jwala Prasad J. in Jamunadas Ramjas v. E. I. Ry. Co. Ltd. A. I. R. 1933 Pat. 630. In that case his Lordship made the following observations:

''Misconduct'' would ordinarily 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 rainwater 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.

The word used in those Risk Notes is misconduct" and not "wilful misconduct." A mere omission to do what is expected of a person to do constitutes misconduct, whereas if such failure is directed to intentionally cause mischief or loss to any person, then it is called "wilful misconduct." The railway administration or its servants might not have intended to cause any damage to the plaintiff''s consignment and with that object neglected to do their duty, but a mere neglect of duty will charge them with misconduct and will bring the case within the Risk Notes.

The only other decision of this Court bearing on the case before me now is the decision of Dhavle J. in B.N. Ry. Co. v. Janki Das Marwary A. I. R. 1936 Pat. 70. That was a stronger case than the one decided by Jwala Prasad J. in so far as the plaintiff in the second case had shown that the railway administration had not observed the directions laid down in the rules, namely, Clauses (b) and (f) of para. 11 of the "Special precautions to be observed in dealing with damageable traffic during the monsoon" and certain other rules of the department. Dhavle J. had no difficulty in holding that the omission to observe the precautions laid down by the department for the conduct of traffic during the monsoon amounted to misconduct on the part of the railway employees. Referring to the case decided by Jwala Prasad J. above referred to, Dhavle J. observed as follows:

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.

Another learned Judge of this Court, Saunders J. dealing with a case of alleged damage by rain water, made the following observations in Babu Ramlal v. Secretary of State AIR 1936 Pat. 257:

In the present case there is no finding, nor is there evidence on which a finding could be based, that there was any omission on the part of the railway to observe any prescribed precaution for the protection of the goods from risk of damage by rainwater. No error of law has been committed by the learned Judge in his finding that misconduct should not be inferred from the mere fact that damage was caused by the entry of water into the wagon between the hinges of the door-flaps.

In this case also his Lordship referred to the previous decision of this Court in Jamunadas Ramjas v. E. I. Ry. Co. Ltd. A. I. R. 1933 Pat. 630 by Jwala Prasad J. which he tried to distinguish with reference to the definition of "misconduct" as given in the Division Bench ruling of this Court in Durga Dutta Shri Rarn Firm v. Secretary of State A. I. R. 1930 Pat. 283 in which case their Lordships were inclined to take the view that wilful neglect and misconduct were almost synonymous terms. In the present case I am not called upon to decide whether misconduct, as it appears in the risk note now in vogue, is interchangeable with the phrase "wilful neglect" as it occurred ''in the previous risk note which has been replaced by the risk note in question in this case. It is doubtful that this should be so inasmuch as the Legislature deliberately prescribed a change in the form of the risk note as a result of popular agitation to mitigate the rigours of the law requiring, as it did, the plaintiff to prove wilful neglect on the part of the railway administration or its servants. But, as I am bound by the Division Bench ruling of this Court, I need not say anything further on that aspect (c)f the ease. Fortunately, it does not directly arise for decision in this case. The Madras High Court in South Indian Railway Company Ltd. v. v. M.K.S. Dandayutham Chettiar A. I. R. 1934 Mad 715 and Roshan Umar Karim & Co. v. M. & S. M. By. Co. Ltd. A I. R. 1936 Mad. 508 and the Calcutta High Court in B.N. Ry. Co. Ltd. Vs. Moolji Sicka and Co., , B.N. Ry. Co. Ltd. Vs. Dhanjishah Pestonji and Another, and B.N. Ry. Co. Vs. Moolji Sicka and Co., have not approved of the decision in Jamunadas Ramjas v. E.I. Ry. Co., Ltd. AIR 1933 pat. 630. They appear to have been inclined to take the view that Jwala Prasad J. had laid down the law too widely.

In the present case it was suggested that, while the train carrying the consignment in question was standing at the Dighwara Railway Station for about ten days due to ''excessive rain, the station master should have taken care to protect the wagon in question, especially in view of the'' pleading by the railway company, the petitioner in this case, that the damage occurred to the wagon between Dighwara Railway Station and Sonepur Railway Station. I fail to appreciate what steps the station master could have taken, which he refrained from doing. He could not be expected to open the lock and break the seal on the wagon to see if the consignment was being damaged by excessive rain. If he had done that, perhaps he would have been guilty of breach of certain rules of the department. During the incessant rains he could not be expected, by any means, to open the wagon, because that it would have perhaps accelerated the damage. I adjourned the case for a considerable time in order to enable counsel for the plaintiffs, opposite party in this Court, to study the rules and the several publications of the railway company concerned to find out if there were any directions contained in those rules, or circular orders, which could be said to have been infringed by the employees of the railway administration. He could not point out definitely any such rules. Hence, in my opinion, the plaintiffs have failed to prove by positive evidence, either led by themselves or brought out in cross-examination of the railway administration''s witnesses, that the defendant company or its employees were guilty of any such misconduct as is contemplated in the risk note in Form H. That being so, in my opinion, the finding of misconduct, arrived at by the Court below, is not supported by any evidence on the record. In this view of the case, it follows that the application must be allowed and the suit dismissed. In the circumstances of the case, I would direct each party to bear its own costs throughout.