South Indian Railway Company Ltd. vs V.M.K.S. Dandayutham Chettiar

Madhavan Nair, J.—The petitioner is the S.I.R. Co. This petition is to revise an order of the District Munsif of Udumalpet awarding

damages to the plaintiff for the loss caused to him on account of rain leaking into the waggon, as a result of which 15 bags out of the 141 bags of

rice consigned to him were found wet. The defendant company claimed exemption from liability for the damage caused as the goods were sent

under risk note form H. Under this contract the company will be liable if it is proved that the damage was caused on account of the ''misconduct''

of the Railway Department or its servants. The question is whether there has been such misconduct as is contemplated by the risk note form H in

this case. It is admitted-see D.W. 1-that the bags of rice became wet on account of the rain blowing into the waggon through the crevices of the

doors; but there is evidence that the waggon in which the goods were despatched was found watertight at the last periodical examination on 1st

July 1930, and also when it was re-examined on 12th November 1931. It was between these dates that the goods were carried by the company.

In M. & S.M.Ry. Co. v. Sunderjee Kalidas 1933 Cal. 742, it was pointed out that

misconduct is not necessarily established by proving oven culpable negligence. It is something opposed to accident or negligence and is the

intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the results may be.

In B.B. & C.I. Ry. Co. Rajnagar Spinning Weaving and Manufacturing Co. 1930 Bom. 129, it was held that the word ''misconduct'' suggests

that a railway servant has been guilty of doing something which was inconsistent with the conduct required of him by the rules of the company. In

the absence of proof that there was any breach of duty by the railway servant or any infringement of the rules which regulate their terms of

employment, no fair inference of misconduct on the part of the railway administration servants could properly arise.

Having regard to these decisions, and (the evidence in the case which shows that there was no negligence on the part of the railway company as

the waggon in which the bags were sent was water, (tight, it is difficult to hold that misconduct on the part of the railway department or its servants

has been proved.

But in a case in Jamunadas Ranjas v. E.I. Ry. Co. 1933 Pat. 630, , which is very similar to the present case on the facts, it was held that

''misconduct'' was proved. In that case misconduct under risk note form H was construed to mean ''failure to do what is required of a person to

do.'' ''Failure to provide against such ordinary contingency such as rain-water forcing itself into the waggon and causing damage to grain'' was

construed to be misconduct in that case. This case entirely supports the respondent. The learned Judge observed.

that the fact that the rain-water did enter the waggon and cause damage to the plaintiff''s consignment is itself sufficient to show that; proper and

requisite precautions were not taken by the railway department to provide against such risk contingency.

Having regard to the facts of the present case I am unable to follow the above decision. The railway company have done all that they could.

They could not do more than what they did, viz., provide a water-tight compartment for carrying the bags. The damage that was caused was

clearly the result of an. accident and not misconduct on the part of the railway company. I would therefore set aside the lower Court''s decree and

dismiss the plaintiff''s suit with respect to both his claims. In the circumstances each party will bear its own costs throughout.