(1) This is a First Appeal by the original plaintiff Ramkrishna Ramnath shop, whose suit against the Union of India, represented by the Eastern Railway, Central Railway and the Southern Railway, for damages amounting to Rs. 15,047 in respect of damage said to have been caused to 54 bags out of the bags of tobacco delivered by the plaintiff to the Southern Railway at Nipani for carriage to Tumsar Road, was dismissed by the Additional District Judge, Bhandara. The learned Additional District Judge accepted the plaintiff's case that 54 bags of tobacco had been damaged, and according to him the value of damage was Rs. 13,808-6-6 only and not Rs. 15,047 as claimed in the plaint. But holding that the plaintiff has failed to prove either misconduct or negligence on the part of the railways, the learned Additional District Judge dismissed the suit. The plaintiff has now come up in appeal and challenges the finding of the Additional District Judge that the plaintiff has failed to prove either misconduct or negligence on the part of the railway. The learned counsel for the appellant accepts the finding of the trial Court that the damage was to the extent of Rs. 13,808-6-6 only.
(2) The admitted fact are that the plaintiff handed over 340 bags of tobacco at Nipani to the Southern Railway for being carried to Tumsar Road. It is also admitted that 54 bags out of these bags came in a very wet condition to Tumsar Road, and as a protest lodged by the consignee, the Railway Inspector inspected the goods and assessed the damage at 70 per cent and gave delivery without prejudice to the rights of the Railway Administration. The goods were despatched from Kolhapur railway station on the metre gauge railway and transhipped at Ghorpadi railway station to broad gauge wagons. When the plaintiff delivered the bags of tobacco he gave a forwarding note in which he accepted the risk as 'owner's risk', and on the forwarding note it is also noted that the tobacco was packed in single bags.
(3) The only point argued in appeal is whether the railways are responsible for the damage admittedly caused to 54 bags of tobacco. On behalf of the railway it is contended that both sections 74-A and 74-C of the Railways Act are applicable, the former section because the packing was defective, and the latter section because of the consignor had accepted 'owner's risk'. It is therefore contended that the burden is on the plaintiff to prove either misconduct or negligence on the part of the railways. The learned counsel for the appellant however contends that section 74-A of the Railways Act does not apply because the damage in this case had not been caused by the defective packing (if any) of the goods, and that section 74-C of the act does not apply because there is no evidence to show that for the class of goods in question the railways provided two different rates and that the goods were carried at a specially reduced rate.
(4) Section 72 of the Railways Act provides that the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act. Sections 151, 152 and 151 of the Contract Act provide that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed, and that in the absence of any special contract, the bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151. Ordinarily therefore, when section 72 of the Railways Act applies, the responsibility of the railway is that of a bailee to show that it has taken as much care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed. This general provision relating to the responsibility of the railway is however altered in two special cases, to which sections 74-A and 74-C of the Railways Act are applicable. When goods tendered to the railway for carriage are in defective condition or when they are either defectively packed or packed in a manner not in accordance with the general or special orders of the railway, as a consequence of which the goods are liable to deterioration, leakage, wastage or damage in transit, section 74-A of the Railways Act applies and the Railway Administration is not responsible for any deterioration, leakage, wastage or damage, except upon proof of negligence or misconduct on the part of the railway administration or any of its servants. This is provided in section 74-A of the Railways Act. Section 74-C provides as follows:
'74-C. Liability of a railway administration for animals or goods carried at owner's risk rate.-(1) When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate) or in the alternative at a special reduced rate (in this Act referred to as the owner's risk rate), the tendered to be carried at owner's risk rate, until the sender or his agents elects in writing to pay the railway risk.
(2) Where the sender or his agents elects in writing to pay the railway risk rate under sub-section (1), the railway administration shall issue a certificate to the consignor to that effect.
(3) When any animals or goods are carried or are deemed to be carried at owner's risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants.'
This section applies when the railway provides two alternative rates for the carriage of goods and when the sender does not pay the railway risk-rate. In such a case the Railway Administration is not responsible for any loss, destruction or any deterioration of or damage to such goods from any cause whatsoever, except upon proof that such loss, destruction, or damage was due to negligence or misconduct on the part of the Railway Administration or of any of its servants.
(5) In the instant case, in the written statement of the railways it is admitted that the damage was due to rain water having entered through the crevices of the door of the wagon. The goods are described as 'Jarda tobacco' and for 'Jarda tobacco' the railway rules provide that the packing condition shall be according to the classification P/10 in Chapter IX of the Goods Tariff. The packing classification P/10 is described as follows: 'Must b in baskets or mats, securely packed in gunny.'
It is not necessary that there should be double gunny bags, but there is no evidence to show that tobacco was in baskets or mats. In any case it is clear that the damage actually caused was not due to the defective packing and therefore for provision of S. 74-A of the Railways Act are not attracted. Section 74-A applies only when goods are liable to damage, leakage, wastage or deterioration as a consequence of their defective condition or as a consequence of defective or improper packing. But the railways are entitled to rely on S. 74-C of the Act because for 'Jarda' or country-manufactured tobacco two rates are provided, namely, under the general classification P/10 at railway risk and under the general classification P-9 at the reduced rate i.e., at the owner's risk. Two rates are provided for this type of goods, and the owner did not pay the special rate for railway risk but elected to send the goods at his own risk as stated in his forwarding note. Section 74-C therefore applies to the facts of this case and unless the plaintiff proves either misconduct or negligence on the part of the Railway Administration, or of any of its servants, he would not be entitled to recover any damages.
(6) The word 'misconduct' is capable of three different interpretations, as observed in Roshan Umar Karim and Co. v. Madras and Southern Maharatta Railway Co., Ltd. ILR 59 Mad 789 : AIR 1936 Mad 508 . But the view taken by the Bombay High Court in B. B. and C. I. Railway v. Rajnagar Spinning etc. Co. Ltd. AIR 1930 Bom 129, is that the word 'misconduct' suggests that a railway servant had been guilty of doing something which was inconsistent with the conduct expected of him by the rules of the company. 'Misconduct' and 'negligence may amount to 'misconduct,' while some kinds of negligence may not amount to 'misconduct.' According to the view taken by the Bombay High Court there can be misconduct only if some rules of the company are violated. The principle of res ipsa loquitur may be applied to infer negligence but it cannot be applied to infer misconduct. Misconduct, that is conduct inconsistent with the rules of the railway, has to be proved and cannot be inferred from the mere fact of deterioration or damage. In the instant case, there are rules for taking precautions during the monsoon, and it is admitted both sides that Railway Rules provide that for the carriage of goods during the monsoon it is the duty of the railway servants to provide water-tight wagons for goods which are liable to damage by water. In the instant case the railways have examined the railway clerk Hanmant (D. W. 4) who as a clerk at Ghorpadi transhipment Shed. He has desposed that the examined wagon No. 3498 and assured himself that it was water-tight before the tobacco bags were loaded. But in the instant case the goods of the plaintiff were sent in three different wagons bearing Nos. 19412, 30525 and 3498 at Ghorpadi. At Ajni railway station near Nagpur, the bags were sent in three wagons bearing Nos. 19412, 30525 and 15809, 147 bags were sent in wagon No. 30525 which was a through wagon from Ghorpadi to Tumsar Road, and it is this wagon that was found to contain 53 damaged bags. One damaged bag of tobacco was in wagon No. 15809. It is therefore necessary to know whether wagons Nos. 30525 and 15809 were water-tight or not.
(7) On this point the railways have not examined any witness to show that these wagons were water-tight as required by the Rules. It appears that one Raikar was the clerk who loaded the bags in wagon No. 30525, but it is contended that this clerk is not examined because the Court did not grant adjournment to the defendant to enable it to examine the witness. The order sheet of the Court dated 29-7-1954 shows that the defendant had made an application for adjournment of the case on the ground that the three witnesses Sheikh, Raikar and Mahapatra were absent and the Raikar and Sheikh were ill. The application for adjournment was rejected by the Court which stated as follows:
'I consider that no valid ground exists for granting further adjournment. The defendant had agreed and had undertaken to produce the evidence for to-day. Already two adjournments had been granted. It will be seen that this case was fixed fro the defendant's evidence on 22-3-1954 on which date the defendant was not ready with the evidence. The defendant was specially told on that date that no further adjournment will be allowed. The application for adjournment is rejected.'
The failure to examine the witness in question was therefore due to the default of the defendant railways. Moreover, it is in evidence that there was a Wagon Inspector at Ghorpadi. The railway could have examined the Inspector of Wagons at Ghorpadi even if one of the clerks who was in charge of the wagon was ill. In any case, the defendant had taken two previous adjournments and had undertaken to produce the witness on the day. The blame for not examining witnesses to prove that the wagons in question were water-tight wagons is therefore clearly on the defendant railways. It is also admitted in the written statement that the goods were damaged on account of he rain water having entered through the crevices of the door of the wagon. As observed in Governor-General in Council v. Motilal Kajriwall : AIR1945Pat159 , if the wagons were water-tight and the flap doors had been securely fastened, goods would not have been damaged by the rain-water forcing its way into the wagon.
(8) In cases to which S. 74-C of the Railways Act is applicable the burden on proving misconduct or negligence is of course on the plaintiff, but as observed by the Privy Council in Dwarkanath v. Rivers Steam Navigation Co. 20 Bom LR 735 : AIR 1917 PC 173, under S. 106 of the Indian Evidence Act the bailee should call all the material witnesses to prove the facts which were within the special knowledge of the bailee. As observed in Union of India v. Parikh Shankarlal Jethalal AIR 1956 Nag 255, the law does not cast any burden upon the Administration to establish positively how the loss or damage occurred, and to prove an absence of negligence on their part, but a duty is cast on the Administration to lay all the materials concerning the occurrence before the Court; but even so it remains for the consignees to satisfy the Court that the true inference from the materials is that the carrier's servants have not shown due case, skill and nerve. As observed in Asaram Gangaram v. Union of India, New Delhi, AIR 1957 Nag 59:
'It is no doubt true that it is always for the plaintiff to prove that the loss was caused by the neglect or negligence of the Railway Administration. But when the Court has the evidence that the goods had deteriorated while in the custody of the Railway Administration, there is a prima facie case of negligence for the Railway Administration to answer. Under S. 106 of the Evidence Act the special facts and circumstances under which the consignment as handled are only known to the Railway Administration, and therefore, it is for them to place that material before the Court for forming its opinion on the question whether it had taken as much care of the goods as is required of them. The Railway Administration should place material before the Court from which it could be inferred how the consignment was dealt with, in order to ascertain whether the Railway Administration took as much care as is required of them, being bailees of the goods under Ss. 151, 152 and 161 of the Contract Act.'
(9) In the instant case, admittedly 54 bags were damaged by rain water. As already observed, the Railway Administration has failed to adduce evidence to show that it had provided rain-proof wagons at Ghorpadi railway station. It has also admitted that rain-water had entered the crevices of the door of the wagon. As observed in AIR 1945 Pat 159, rain water would not have damaged the tobacco bags if rain-proof wagons had been used. This is therefore a prima facie case of negligence. In these circumstances, we hold that the plaintiff has succeeded in proving negligence on the part of the Railway Administration. The failure to provide water-tight wagons would also amount to misconduct because admittedly under the rules relating to conveyance of goods in monsoon it was the duty of the railway servants to provide water-tight wagons.
(10) For these reasons, we are satisfied that the plaintiff has succeeded in proving that he is entitled to damage. As regards quantum of damages, the learned counsel for the appellant accepts the finding of the trial Court that he has suffered damages to the extent of Rs. 13,808/6/6. This finding is not challenged by the railways. We therefore allow the appeal and order that a decree shall be passed in favour of the plaintiff for Rs. 13,808/6/6. The appeal is allowed with costs and the suit will be decreed with proportionate costs.
(11) Appeal allowed.