1. This is a plaintiff's appeal arising out of a suit for damages against a railway company. A bale consisting of 50 'thans' of markin was consigned to the G.I.P. Railway Company at Bombay for delivery to the plaintiff at Farrukhabad under a Risk Note form B. The bale however was not delivered. In spite of registered notices the defendants failed to deliver the bale or pay its price. The pleas raised on behalf of the railway company were numerous, but all of them were apparently not pressed. Two main defences were that there was no wilful neglect and that in any case the loss was due to a robbery from a running train. The seals of the wagon in which the bale had been placed were found to be intact at Nasik, but were found broken at Manmad. The contents of the wagon however were checked not at Manmad but at some subsequent station, when it was discovered that one bale was missing.
2. The Court of first instance found that between Nasik and Manmad there are two high banks where the speed of the train has to be slowed down; that from 1918 there had been frequent running train thefts between Nasik and Manmad and that in spite of this fact no measures were taken by the railway company to make the doors of wagons properly fastened and made more secure, and that the mere putting on of sealing wax without any looks on the doors was in no way effective in securing them. On these facts it recorded a finding that the railway administration had for a considerable period knowingly failed to see that these fastenings were made more secure so that the goods might be carried over the line With reasonable security. Relying on the case of B. & N.W. Ry. Co. v. Haji Mutsaddi (1910) 7 ALJ 833 it held that wilful neglect had been established. On appeal the learned District Judge has not controverted any of the findings of the first Court, but has agreed that there had been frequent running train thefts between Nasik and Manmad, and that in spite of this, the railway company had failed to take any measures to make the door of wagons secure and had continued to fasten them by seals and not by locks, Referring to the case relied upon by the first Court he remarked:
If I had only this case and this opinion before me I should be bound to dismiss this appeal and uphold the decree of the subordinate Court,
but he thought that rule had to some extent been departed from in a later case, viz., that of the E.I. Ry. Co. v. Nathmal Behari Lal AIR 1917 All 338. The learned Judge thought that this later ruling applied to the case and that inasmuch as the railway company had got the wagon duly sealed in such a way that the railway servants would be able to see whether or not the wagon was entered in the course of transit, there was no wilful neglect, and thought that the railway company probably did not lock their wagons because they found it impracticable. He apparently overlooked that a measure i.e. sealing intended to discover subsequently whether a theft has been committed is not the same thing as a precaution taken to prevent theft. He accordingly dismissed the suit.
3. When the matter came up in appeal this Bench, in view of certain previous conflict of opinion, referred the question as to whether there had been a robbery from a running train within the meaning of the Risk Note, to a Full Bench. The opinion of the majority of the Full Bench destroys the defence.
4. The only point that remains to consider now is whether there was or was not wilful neglect on the part of the railway company. Wilful neglect is not a pure question of law, and, therefore if an appellate Court records a categorical finding of fact, based on certain evidence and circumstances, that finding cannot be questioned in second appeal. In this particular case, however, both the Courts have agreed as to the facts. The learned Judge has treated it as a pure question of law and has thought that this case is governed by the later ruling mentioned by him and not by the earlier. Reading his judgment it is impossible to hold that he intended to record a pure finding of fact. We are, therefore, entitled to go behind his judgment.
5. As an abstract proposition it is impossible to lay down that a mere failure properly to secure wagons always amounts to wilful neglect, or that the mere sealing of a wagon necessarily excludes wilful neglect. Every case must depend on its own circumstances. The absence of any device to shut out thieves is a circumstance which a Court is entitled to take into account. It is for the Courts which have to find facts to hold whether the absence of precautions under the circumstances of that particular case amounted in their opinion to wilful neglect on the part of the railway administration. The frequency of thefts that have taken place and the steps or absence of steps to prevent them, are matters which can be legitimately taken into consideration. If after taking all such matters into consideration a finding is recorded by a Court.; which is the final Court for finding of facts, that finding, unless vitiated by some other circumstance, would have to be accepted. But when in arriving at that finding the Court is labouring under geom misconception of the law, that finding cannot be final.
6. That the failure to properly fasten the door of wagons specially when thefts are constants, is evidence on which a Court can find wilful neglect, is fully established by the case of the B. & N.W. Ry. Co. v. Haji Mutsaddi (1910) 7 ALJ 833. Stanley, C.J. and Griffin, J. not only accepted the finding of the lower appellate Court but further remarked that they would not have been disposed to differ with that view on the facts as deposed to by the railway servants. Similarly in the case of the B. & N.W. Ry. Co. v. Manorath Bhagat Dhian Ram : AIR1925All172 the absence of any precautions to lock the wagons or to keep any extra watch on the trains or the station when thefts were known to be constant, so much so that about ten wagons with broken seals were discovered every month between two stations, was held sufficient to support a finding that wilful neglect had been established. These two cases were followed in Balram Das Fakirchand v. G.I.P. Ry. Co : AIR1925All562 where it was held that the railway company were guilty of wilful neglect in sending a wagon hundreds of miles during which the train had to travel at night and stop at all sorts of sidings, sealed only with paper, string and wax, when the finding of broken seals was, to put it at its lowest, at least not an uncommon incident and when even two or three days before seals had been found broken on the train in very similar circumstances. The case of the E.I. Ry. Co. v. Nathmal Behari Lal AIR 1917 All 338 has not been fully appreciated. There the Court below had held that the burden of showing that reasonable and proper care was taken of the goods consigned to the company bailee lay on the railway company, and that the railway company had failed to discharge that burden. The learned Judges held that the onus of showing that the loss was not caused by wilful neglect was wrongly laid on the defendants. Beyond the facts that the wagons composing the train were constantly examined and the seals found intact until the last station but one before the arrival of the train at Cawnpore, there was apparently no other circumstance before the Court. On those facts the Bench held that wilful neglect had not been proved.
7. In the present case we have already pointed out that from 1918 onwards there had been frequent thefts between Nasik and Manmad; the railway administration must have been aware of this fact; they also must have been further aware of the fact that the trains, owing to a climb, have to slow down between these two stations, making it possible for persons to board the trains easily. In spite of this no measures were taken by the railway company either to keep any extra watch or guard on the train or between these two stations, but the wagons continued to be sealed merely with paper, seal and wax. The sealing may be of some use for detecting subsequently whether a wagon has been broken open, but that is no protection against the breaking open of the wagon itself and affords, little if any, security to the consignor of the goods. It is suggested that it is impracticable for a big administration to lock its numerous wagons. This suggestion is groundless because the guard in this particular case has admitted that the wagons are now being actually locked and that this locking commenced some time in 1921. Thus the railway company have realized that there is further precaution which they can take. Even if there were no locking, some other precaution could have been taken to prevent such constant thefts between Nasik and Manmad. In our opinion the failure to take effective precautions was an intentional disregard of the plain duty of the company to take proper care of goods in their custody. Following the cases referred to above we hold that the plaintiff has established the wilful neglect of the defendant company.
8. As regards the question of damages, the plaintiff is entitled to be fully compensated. It has been proved in this case that if the goods had been delivered at Farrukhabad within a reasonable time of their despatch, say the 4th of November 1920. they would have fetched Rs. 1,225 on the prevailing market price. The plaintiff, therefore, is entitled not only to Rs. 1,225 which he ought to have got on the 4th of November 1920, but also to the loss which he has suffered in consequence of that amount having been withheld from him. This loss can be taken to be equivalent to interest at 6 percent. on that amount from that date up to the date of the institution of the suit, viz., Rs. 15 5-0. In awarding this last sum we are not giving the plaintiff a decree for interest on his damage but we are giving him full compensation for the loss he has suffered up to the date of the institution of the suit, the amount being Rs. 1,240-50. On this last mentioned amount the plaintiff is undoubtedly under Section 34, Civil P. C, entitled to interest from the date of the institution of the suit until realization. We consider 6 per cent. per annum to be the reasonable rate.
9. We accordingly allow this appeal and setting aside the decree of the District Judge, restore that of the Court of first instance, with costs, including in this Court fees on the higher scale.