A.P. Srivastava, J.
1. This is a defendants' appeal that arises out of a suit filed by the respondent for the recovery of Rs. 18,000/- as damages.
2. The case with which the respondent came to court was that the firm Vergi La) Chamshi Shah despatched 660 tins of ground-nut oil from Veldurti to Ghaziabad railway station under Railway Receipt No. 13470 dated the 4th or August, 1947. In due course the railway receipt was endorsed in favour of the Central Bank of India which, in its turn, endorsed it in favour of the Allahabad Bank which again was endorsed in favour of the plaintiff-respondent.
The consignment was not delivered to the plaintiff on demand and, therefore, the plaintiff after serving the necessary notices required by Section 77 of the Indian Railways Act and Section 80 C.P.C. filed a suit against the present appellants for the recovery of Rs. 16,845/13/6 as the price of the consignment and Rs. 1154/2/6 by way of interest as damages at 6 per cent per annum. Risk Notes A and Z had admittedly been executed in respect of the consignment in question.
3. The suit was contested by the defendants on various grounds. We are not concerned at present with the other pleas raised. The main contention urged was that after the consignment had been transhipped at Sikandrabad from the meterguage wagon to the broadguage wagon and while the wagon containing the consignment was stabled at the Asaoti railway station on the erstwhile G.I.P. railway, the entire train including the wagon containing the consignment in question was looted sometime between the 5th of September, 1947 and the 13th of September, 1947. The looting was done in connection with the disturbances that followed the creation of two dominions in the country. The defendants therefore pleaded that the loss of the consignment was dueto reasons beyond their control and they were, therefore, not liable.
4. The suit was tried by the 2nd Civil Judge of Meerut, who rejected all the pleas raised by the defendants arm decreed the suit with costs and pendente lite and future interest at 3 per cent per annum.
5. The defendants have come up in appeal. The other points which had been decided by the learned Civil Judge against the defendants have not been pressed here. The only ground pressed is that it was necessary for the plaintiff-respondent before he could succeed to prove that the railway administration or its employees were guilty of misconduct but in the circumstances of the present case that had not been established. It is contended that on that account no liability could be rested on the appellants and the suit should have been dismissed.
6. It is not disputed on behalf of the respondent that in view of Risk Note Z having been executed, it was necessary for the respondent to prove that the railway administration or its employees were guilty of misconduct before the suit could succeed. Learned counsel for the respondent urged that from the circumstances established in the present case it is clear that the railway administration or its employees were, in fact, guilty of misconduct. Learned counsel for the appellants on the other hand contends that the conduct of the railway administration or its employees did not really amount to misconduct.
7. What has to be seen in this appeal, therefore, is whether in the circumstances that have been established in this case, misconduct within the meaning of Risk Note Z executed in respect of the consignment could be attributed to the railway administration or its employees.
8. The circumstances that have been established by the evidence of the defendants themselves appear to be beyond dispute. The consignment in question was transhipped at Sikandrabad into a broadguage wagon and was handed over to the G.I.P. railway at Balharshah junction on the 8th of August, 1947. The wagon which bore No. N.W.R. 22113 was intact at Balharshah station till 7-50 on the 8th at August, 1947. From that place it was despatched on the same date at 3 p.m. by the 110 Up goods train, seals were intact at that time. It reached the Agra Cantonment station on the 28th of August, 1947 and there it was attached to goods train No. 35 Down which left Agra Cantonment station at 1.35 p.m.
All the wagons in the train including the wagon containing the consignment in question were checked ana found all right. The goods train containing the wagon in question reached Asaoti railway station safely at 10-51 p.m. on the 28th of August, 1947. The Asaoti railway station is a small station situated at a distance of about 48 meters from Delhi between Agra and Delhi. The entire train containing the wagon in question was directed to be stabled at the Asaoti railway station because it was said that no place was available in the New Delhi Station yard. The train was found intact along with all the 61 wagons attached to it till the 4th of September, 1947. It is, however, alleged that on the night between the 4th and the 5th of September, 1947 some goods were removed by thieves from three or four wagons. The Station Master learnt about the theit in the night and informed the railway police about it the next morning.
He had already written to the authorities at Delhi for watch and ward help and sent a reminder to that effect in the morning of the 5th of September, 1947. No watch and wars help, however, arrived. Some goods were again stolen fromsome of the wagons in the train in the night of the 5th of September, 1947. During the next four or five nights thefts continued and goods were removed from the various wagons in the train. The Station Master went on reporting to the higher authorities and also sent telegrams but no action was taken on his requests. According to the Station Master looting started on the 10th of September, 1947. Five days later on the 15th of September, 1947 the Station Master did some checking and at that time discovered that the wagon containing the consignment in question was empty. On the 29th of September, 1947 the Assistant District Commercial Inspector arrived and he too confirmed me finding of the Assistant Station Master.
9. Several facts emerge from the narration we have given above.
1. The Asaoti railway station was a small railway station. It was not meant for stabling a goods train containing 61 wagons. There was no arrangement there for the safety of the wagons. The only reason why the train containing the wagon in question was directed to be stabled at that railway station was that there was no space available in the yard at the Delhi railway station. The wagon in question was, however, booked not for Delhi but for Ghaziabad. No reason is given why it was thought necessary to detain this wagon also at Delhi and why it could not be sent immediately after its arrival at Delhi to Ghaziabad. The direction that the entire train should be stabled at Asaoti railway station could not in the circumstances be justified on any ground.
2. Thefts had started and things had begun to be removed from the various wagons of the tram from the 4th of September, 1947. Information about this was sent not only to the police but also to the railway authorities. An express request was made for providing watch and were help. No action was, however, taken with the result that the railway authorities left the entire train unguarded at a place where there was no arrangement at all for the safety of the wagons contained in the train. There is no evidence to show that watch and ward staff was not available or that no other arrangement could be made for the safety or the train.
3. There is no direct evidence to show that the consignment in question or the wagon in which it was contained was actually looted. The only thing we know of is that there was some looting on the 10th of September, 1947 and That when the train was checked on the 15th of September, 194/ the wagon containing the consignment in question was found empty. The goods in question might have been removed before the looting started on the 10th of September, 1947. If the goods had already been removed before the train was looted the wagon could not but be found empty when it was checked four days later on that date. The necessary inference cannot therefore be drawn that this particular wagon had in fact been subjected to looting,
4. While the train containing this wagon was being looted at Asaoti nobody took any steps to prevent the looting. The police did nothing and there was no watch and ward staff. The Station Master has stated that on the 10th of September, 1947 the railway authorities directed him 'and the other railway employees to run away in order to save their lives. The authorities left the train to the mercy of looters.
10. The circumstances established in this case, in our opinion, lead clearly to the conclusion that the railway administration and its employees were guilty not only of negligence but of gross improper conduct. The word 'misconduct as used in Risk Note Z has not been defined in the Railway Act itself. It has, however, been the subject matter ofinterpretation by the various High Courts. The interpretation put on it has not been uniform. As was pointed out by Collister J. in Firm Sheikh Wajid Ali Mohd. Rafiq v. B. and N.W. Ry. Co. : AIR1941All164 on one extreme was the view taken by the Calcutta High Court in M. and S.M. Ry. Co. Ltd. v. Sunderjee Kalidas : AIR1933Cal742 , according to which:--
'Misconduct was something more than culpable negligence and the word had been used in opposition to accident or negligence and meant the intentional doing of something which the doer knows to be wrong or which he does recklessly, not caring what the result may be.'
11. On the other extreme was the Patna High Court which held in Jamunadas Ramjas v. E. I. Ry. Co. Ltd., AIR 1933 Pat 630 that:
'Misconduct ordinarily meant failure to do what was required of a person to be done.'
12. This court has, however, followed a sort of middle course between the two extremes.
13. The question was first considered by a Division Bench of this Court in Secy. of State v. Bhagwandas : AIR1927All371 where it was held:
'A railway servant, who is placed as a kind of guardian over the goods of the public in transit, is guilty of misconduct if he allows a trespasser to obtain access to such goods.'
14. In E. I. Railway Co. v. Naraindas Ganga Saran : AIR1932All321 the word 'misconduct' was given the primary dictionary meaning viz.
'The primary meaning is 'bad management', mismanagement and malfea ance or culpable neglect of an official in regard to his office.'
In that case a bale of dhotis booned under risk note in form H had not reached the destination and it was found that while the wagon was standing at one place one of the rings to which the lock was attached was broken and the bale was found missing. It was held that the theft could not have taken place if the railway servants had been vigilant and that there was no escape from the conclusion that the bale was removed owing either to deliberate misconduct of the railway servants in the shape of standing by or helping in the theft or at any rate in so neglecting the wagon that it was possible for several men to arrive at the place of 'wrench off the ring' and to remove a heavy load like the bale in question.
15. Subsequently in the case of Secy. of State v. Madhuri Das Narain Das : AIR1933All477 , Niamatullah, J. observed;
'I may, however, note that the word 'misconduct' occurring in risk note B is of wider import than the popular sense in which that word is used. Want of proper care and caution may amount to misconduct within the meaning of the risk note B.'
In that case he held that a mistake in the preparation ofthe railway receipt which threw doubt on the identity ofthe consignment to which it related was misconduct.
16. Still later in the case of : AIR1941All164 (Supra; the word 'misconduct' as used in risk note H was held to mean 'improper conduct'. In that case in defiance of the ordinary practice, the railway employees placed tins of molasses in a wagon which contained the plaintiff's yarn consignment or alternatively they placed the plaintiff's consignment in a wagon which contained tins of molasses, it was held that the loss was attributable to the misconduct of the railway employees.
17. This Court has thus consistently been of the view that the word 'misconduct' as used in the risk notes executed under the provisions of the Railways Act included culpable negligence and conduct which was improper and undesirable. The Division Bench decision in the case of : AIR1932All321 , is binding on us and we also respectfully agree with it. Learned counsel for the appellants requested that in view of the fact that some of the other Courts have taken a different view, the question may be referred to a larger Bench. We are unable to accede to that request. We are not only of the opinion that the view that has been held in this Court since 1927 is correct but are also or the opinion that even if we apply to the present case the test laid down by the other Courts for finding out what 'misconduct' means, the conduct of the railway authorities in the present case would fulfil the test. There could in our opinion, be no justification for the railway authorities allowing the train containing the consignment in question to be left unguarded at a way-side station and not heeding to the repeated requests of the Station Master for Watch and Ward, police or military help.
18. We, therefore, agree with the learned Civil Judgethat the railway administration or its servants were guiltyin the present case, of misconduct and could not on thataccount take shelter behind the terms of risk note Z whichhad been executed in respect of the consignment.
19. So far as risk note A is concerned, it is conceded that in the circumstances of the present case, it was of no help to the appellants.
20. Misconduct having thus been established, the suit of the respondent must be held to have been correctly decreed. The appeal must therefore fail and is dismissed with costs.