D.S. Mathur, J.
1. This is a revision under Section 115, C. P. C. by Sahu Vanaspati Traders, Amroha Gate, Moradabad, plaintiff, against the order of the Additional District Judge of Moradabad, dismissing their revision under Section 25 of the Provincial Small Cause Courts Act and thereby maintaining the decree of the Judge Small Cause Court, whereby the plaintiff's suit was dismissed with costs.
2. On 10-2-1959 Messrs. Patel Bhra Bhai Jutha Bhai & Co., Rajkot, had consigned 320 tins of ground nut oil, the consignment having been booked at Bantava railway station for Moradabad City. The railway receipt was endorsed in favour of the plaintiff, who became the owner of the consignment. The consignment was loaded by the agent of the consignor and was to be unloaded by the consignor or by the endorsee. At the time of the delivery it was noticed that 19 tins had been damaged and the total loss was valued at Rs. 92. The plaintiff therefore claimed a decree for Rs. 110, including Rs. 8 towards Beejak expenses and freight and Rs. 10 towards profits.
3. Both Bantava and Moradabad City railway stations are situated on metre gauge and the consignment could be carried without transhipment, via Hathras, Bareilly and Kashi-pur. The plaintiff's case throughout was that the loss was occasioned by misconduct and carelessness on the part of the railway staff. However, in the notices under Section 77 of he Railways Act and Section 80, C. P. C., and also in the plaint as presented, the misconduct and carelessness on the part of the railway staff was alleged to be by not pasting caution labels on the wagon doors as a result of which the wagon was shunted by hump system, the tins collided with each other and were damaged resulting in leakage of a part of the off, the value of which was assessed at Rs. 92. The plaintiff later had the plaint amended alleging that the goods were not sent by the agreed route as mentioned in the railway receipt, but were sent by a different route, meaning thereby partly by metre gauge and partly by broad gauge. It was further pleaded that if the goods were sent by the agreed route, there would have been no occasion for shunting by hump system and there would have been no transhipment also.
4. The defendant, Union of India, representing the Western Railway and the North Eastern Railway, contested the suit and placed the responsibility for the loss on the consignor in view of the fact that the consignment had not been properly packed in accordance with the rules, and the tins were likely to leakage as was mentioned by the consignor in the forwarding note. The validity of the notices under Section 77 of the Railways Act and Section 80, C. P. C. was also challenged.
5. The Judge, Small Cause Court, record ed the finding that no valid notice under Section 80, C. P. C. was served on the defendant; that there was no negligence on part of the railway administration or its officers except that the goods were not brought by the proper-route, via Kasganj and Bareilly, and instead were transhipped to the broad gauge at Hathras Road Station and thereafter to the metre gauge at Moradabad Junction that it was not proved that the loss caused to the consignment was the result of negligence. The Judge, Small Cause Court also recorded the finding that the defendant was protected by Section 74-A of the Railways Act and not by Section 74-C thereof.
6. The Additional District Judge in revision, however, recorded the finding that 'the package was weak and was not according to rules' meaning thereby that the tins had not been properly packed in accordance with the rules and they were likely to leakage in transit; that the goods were not brought by the agreed route resulting in transhipment of the consignment, and had the other defects not existed, the plaintiff would have been entitled to the decree prayed for; that the notice under Section 80, C. P. C. was served on the Western Railway and there was no evidence to prove the service of the notice on the North Eastern Railway; and that the notice under Section 80, C. P. C. as served on the Western Railway could not entitle the plaintiff to a decree. As the amended cause of action contained in the plaint was not raised in the notice, the Additional District Judge was under an erroneous impression that a finding to the contrary could be recorded if no particulars of negligence were given in the notice under Section 80, C. P. C.
7. From the facts detailed above it will appear that the plaintiff was throughout alleging misconduct and carelessness on the part of the railway staff, but in the notice under Section 80 and also in the plaint as presented gave details of one kind of misconduct and negligence, and after amendment of the plaint introduced another instance of negligence and misconduct. Both the lower courts were of the opinion that the suit could not be decreed for committing misconduct or negligence not contained in the notice under Section 80, C. P. C. The suit was thus held not to be maintainable and was dismissed with costs.
8. The point for consideration is whether it is necessary tor the plaintiff to give particulars of negligence, or carelessness or misconduct in the notice under Section 80, C. P. C. If so, the notice not containing any particulars of negligence or misconduct which would entitle the plaintiff to a decree shall be invalid; but if mere allegation of negligence or misconduct is sufficient, and it is not necessary to give particulars thereof, the notice under Section 80, C. P. C. which contained such allegation shall be valid and the decision of the Judge, Small Cause Court, shall be not according to the law and the Additional District Judge shall be deemed not to have exercised the jurisdiction vested in him under Section 25 of the Provincial Small Cause Courts Act.
9. For recording a finding on the above point, it shall be necessary to consider two questions; firstly, on whom did the burden lie to prove negligence or misconduct on the part of the railway administration or its servants; and secondly, whether it is necessary for the plaintiff to give particulars of negligence or misconduct in the notice under Section 80, C. P. C. and also in the plaint?
10. The burden of proof ordinarily goes upon the party who must establish the facts entitling him to a judgment. Where the goods are carried at the railway risk rate, ordinarily the plaintiff would be entitled to a decree for shortgage in the consignment, unless under some provision of the law he cannot get a decree without proving negligence or mis-conduct on the part of the railway administration or its servants. Where the goods are carried at the owner's risk rate, the burden lies upon the plaintiff unless under the law the burden lies on the defendant, or it is not necessary for the plaintiff to prove how the loss had occurred.
11. For purposes of the present revision, we can proceed with the assumption that in Ihe rules there is provision for the carriage of ground-nut oil at the ordinary tariff rate only (that is, railway risk rate), and not at a special reduced rate known as the owners risk rate. Section 74-C of the Railways Act shall, in such a case, be inapplicable; but in view of the defective packing the plaintiff shall not be entitled to the benefits ordinarily accruing from the carriage of goods at the railway risk rate. Section 74-A(1) of the Railways Act, as it then stood, lays down that:
'When any goods tendered to a railway administration for carriage by railway-
(a) are in a defective condition as a consequence of which they are liable to deterioration, leakage, wastage or damage in transit, or
(b) are either defectively packed or packed in a manner not in accordance with the general or special order, if any, issued under sub-section (2) and as a result of such defective or Improper packing, are liable to leakage, wastage or damage in transit,
and the fact of such condition or defective or improper packing has been recorded by the sender or his agent in the forwarding note, the railway administration shall not be responsible for any deterioration, leakage or damage, or for the condition in which such goods are available for delivery at destination, except upon proof of negligence or misconduct on the part of the railway administration or any of its servants.'
12. The agent of the consignor had clearly mentioned in the forwarding note that the goods were defectively packed, not in accordance with the rules, and were liable to leakage. Consequently, in view of Section 74-A the Railway Administration shall not be responsible for the leakage in transit except upon proof of negligence or misconduct on the part of the rail-way administration or its servants, and it shall not be open to the plaintiff to say that he is entitled to compensation simply because the goods were carried at the railway risk rate.
13. But if it cannot be assumed that there was only one rate for the carriage by railway of ground-nut oil, the goods shall be deemed to have been carried at the owner's risk rate in view of the fact that such words had been noted on the railway receipt and, in such a case, the plaintiff would be entitled to compensation only if the loss, deterioration, leakage or damage was due to negligence or misconduct on the part of the railway administration or any of its servants.
14. Section 74-B of the Railways Act is inapplicable as the whole of the consignment of goods, or the whole of any package forming part of the consignment, carried at the owner's risk rate had not been lost and not delivered to the plaintiff, nor is the present case one of pilferage in transit.
15. The only other section of the Kail-ways Act to which a mention need be made is Section 76, laying down on whom the burden of proof lies in suits for compensation. The material part of Section 76 is that in any suit against a railway administration for compensation for any loss, the burden of proving the true value of the parcel or package shall lie on the person claiming the compensation; but it shall not be necessary for him to prove how the loss was caused unless necessary under the other provisions contained in the Act. If the words 'sub-feet to he provisions contained in the Act' were nol contained in Section 76, it would not have been necessary for the plaintiff to prove how the loss was caused and, in such a case mere proof of he loss without any allegation of negligence or misconduct would be sufficient to grant him compensation for the loss suffered. On this ground it would not have been necessary to allege negligence or misconduct in the notice under Section 80, nor to give particulars thereof.
16. However, when Section 76 subject to the other provisions contained in the Act, those sections shall be given preference in determining on whom the burden of proof lies and which facts the plaintiff must establish before he can expect a judgment in his favour. The burden of proof shall thus be determined by Section 74-A of the Railways Act. In other words, the railway administration shall not be responsible for the leakage of ground-nut oil in transit except upon proof of negligence or misconduct on its part or of any of its servants.
17. The lower courts have considered in detail the question whether the goods were to be carried throughout by metre gauge, that is, via, Kasganj, Bareilly and Kashipur or the goods could be carried by the shorter route after transhipment at Hathras Road and Moradabad Junction. The finding recorded by them is proper, namely, that the goods should have been carried by metre gauge throughout and the railway staff acted wrongly by transhipping the goods to the broad gauge at Hathras Road to the metre gauge at Moradabad Junction. The tins of ground-nut oil had not been packed in accordance with the rules, may be because there was to be no transhipment and the wagon as loaded at Bantava would have been unloaded at Moradabad City. Tf the railway administration had carried the goods by the proper route and even then there was leakage of oil, the responsibility would have been of the consignor and of the endorsee and none of them could have recovered any compensation from the railway; but when the goods were not carried throughout by metre gauge and there was transhipment at two intermediate stations, the responsibility shall also be of the railway unless it is proved that the goods were loaded in the wagon in the same manner in which they had initially been loaded by the agent of the consignor. No evidence as to the similar loading and unloading at the two intermediate stations has been adduced. Further, the tins of ground-nut oil could not be packed properly in a wagon of a different size. Consequently, the transhipment of the goods at the two intermediate stations without any intimation to the consignor to enable him to give further directions or to himself supervise the loading and unloading, shall by itself be a good ground to establish that there was negligence or misconduct on the part of the railway staff. A similar view was expressed in Kishan Lal Matrumal v. B. B. & C. I. Rly Co., : AIR1938All561 and Firm Maheesh Glass Works v. Governor General in Council : AIR1950All543 . To put it differently, the plaintiff would be entitled to the decree sought for in case the notice under Section 80, C. P. C. served on the Western Railway is found to be valid
18. The manner in which the notice under Section 80, C. P. C. has to be scrutinized was the subject of decision by the Supreme Court in Dhian Singh Sobha Singh v. Union of India : 1SCR781 and State of Madras v. C. P. Agencies : AIR1960SC1309 . In : 1SCR781 (supra) it was observed:
'The Privy Council no doubt laid down in..... that the terms of this sectionshould be strictly complied with. That doesnot however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in .....We must import a little commonsense into notices of this Kind.'
The following observation in Chandu Lal Vadilal v. Government of Bombay, AIR 1943 Bom 138 was also quoted with approval:
'One must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed.....'
This case was followed in the subsequent decision in : AIR1960SC1309 (supra). How-ever, the object of Section 80, C. P. C. was held:
'to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for.'
This is what is contemplated by stating the cause of action in the notice.
19. In case it is not necessary for the plaintiff to give particulars of negligence or misconduct in the plaint, it would not be necessary to give such particulars in the notice, and a mere allegation of negligence or misconduct shall be sufficient and the notice under Section 80, C. P. C. not containing particulars thereof shall be valid. When it is not necessary for the plaintiff to give particulars of negligence or misconduct in the notice, the giving of incomplete or insufficient particulars shall not invalidate the notice. In the circumstances, the giving of only a few instances, and not all, should not invalidate the notice. Further, if the burden does not lie upon the plaintiff to prove negligence or misconduct on the part of the defendant or its servants, the omission to give particulars or the giving of incomplete particulars shall not render the notice invalid.
20. What is meant by 'cause of action' was also considered in : AIR1960SC1309 (supra). It means:
'Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved.'
21. 'Cause of Action' is thus a bundle of facts which, if proved, would entitle the plaintiff to a judgment in his favour but it is not evidence which would be adduced to prove each fact.
22. The plaint has to contain inter alia facts constituting the cause of action (vide Clause (e) of Order VII, Rule 1, C. P. C.) while the cause of action has to be stated in the notice under Section 80, C. P. C. There if some difference in the wording of Section 80 and Order VII, Rule 1, C. P. C. and consequent-ly, if the notice does not contain all the facts constituting the cause of action, but the cause of action has been sufficiently stated there would be compliance of Section 80, C. P. C.
23. Unless permissible under the law a mere allegation of negligence or misconduct shall not be sufficient. It shall be necessary for the plaintiff to give particulars of negligence or misconduct in the plaint and to sufficiently state such facts in the notice under Section 80, C. P. C. Consequently, not giving the particulars of negligence or misconduct in the notice under Section 80, C. P. C., or not giving all the instances of negligence or misconduct therein, shall, in one case, disentitle the plaintiff from obtaining any relief from the Courts of law and, in the other, the plaintiff shall not be entitled to obtain a decree based on instances not contained in the notice.
24. On this point Rules 4 and 10 of Order VI, C. P. C. are of assistance. Rule 4 provides that:
'In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.'
Rule 10, on the other hand, lays down that:
'Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.'
Reading the above two clauses together, it must be held that it is not necessary for the plaintiff to give particulars of the state or condition of mind of any person; but if the allegation pertains to a matter not connected with the condition or state of mind, it shall be necessary to give particulars thereof.
25. Negligence, carelessness or misconduct can be of various kinds. Some merely relate to the state of mind and others arise, out of a breach of duty or contract. Where there is no breach of a contract or duty, but a general duty or responsibility is cast upon a person, negligence, carelessness or misconduct can be said to be co-related to the state of mind, for example, where the driver of a motor vehicle is said to have driven the vehicle negligently, what is in issue is the state of his mind; but in a case of the present nature where the goods were carried by a route not agreed upon, it is not the mental condition which is of importance, but it is the breach of the contract. In other words, therefore, in one case mere allegation of negligence, carelessness or misconduct shall be sufficient; but in cases of negligence in tort the state of mind is not in issue and it would be necessary to give particulars thereof as provided in Order VI, Rule 4, C. P. C.
26. Based on English decisions Mogha laid down in the Law of Pleadings in India (Ninth Edition) that in cases in which negligence is pleaded, full details must be given of the acts which are alleged to constitute negligence 'and'in cases where dismissal of a servant is justified on the ground of misconduct, the acts of misconduct must be alleged, and a general allegation of misconduct is not sufficient'. At another place it was mentioned that 'in cases of other lands of misconduct also, full particulars should be given just as in case of fraud'
27. This question has been commented upon in greater detail in Bullen & Leakes Precedents of Pleadings, Eleventh Edn. and it will be useful to reproduce the passage in full.
At p. 391 'it is not enough for the plaintiff in his Statement of Claim to allege merely that the defendant acted negligently and thereby caused him damage; he must also set out facts which show that the alleged negligence was a breach of duty which the defendant owed to the plaintiff. The Statement of Claim 'ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged' (per Willes J. in Gautret v. Egerton, (1867) LR 2 CP 371, cited with approval by Lord Alverstone C. J. in West Rand Central Gold Mining Co. Ltd. v. Rule (1905) 2 KB 391 at p. 400. Then should follow an allegation of the precise broach of that duty, of which the plaintiff complains; in other words, particulars must always be given in the pleading, showing in what respect the defendant was negligent; and lastly, the details of the damage sustained.
Where the duty is founded on contract, or arises out of a relation created by bailment or retainer, the facts must be set out which created the duty. But where the duty is one which all citizens owe to each other, as, e.g. not to run over a man in the street, the duty need not be specifically alleged. It is enough to state the facts with a general allegation that the defendant acted negligently. An express allegation of duty on the part of the defendant is a mere inference of law. If the facts stated do not raise the duty, the express allegation will not supply the defect; and if the facts sufficiently show the duty, the express allegation is unnecessary, and therefore ought not to be introduced. Cane v. Chapman, (1836) 5 Ad & El 647, referred to in Seymour v. Maddox, (1851) 16 QB 326 and see per Cotton L. J., Hurdman v. North Eastern Rly., (1878) 3 C. P. D. 168 at p. 173), see supra, pp. 36. 157.'
28. In Clerk & Lindsell on Torts, TwelthEdition, the tort of negligence was consideredin Chapter 14 and in Para 691; it was mentionedthat the term negligence had three meanings:(i) a careless state of mind, (ii) careless conductand (iii) a tort in itself, Further as wouldappear from Para 693 the existence of a separate tort of negligence has been judiciallyacknowledged in England, which is described asthe infliction of damage as a result of the breachof a duty of care owed by the defendant tothe plaintiff. Its ingredients are a duty of careowed to the plaintiff, breach of that duty andresultant damage.
29. Winfield has given two meanings to the term 'negligence' (See Winfield on Tort,Seventh Edition). The first is a mental element which is to be inferred from one of the modes in which some (but by no means all) torts may possibly be committed. He includes torts like defamation, nuisance or trespass not only intentionally, but also 'negligently' in this meaning. The other meaning given to negligence is 'an independent tort which consists of breach of a legal duty in the mode described above, followed by damage'. It is true that the meanings which can be given to the term of 'negligence' cannot be regarded as being mutually exclusive but in each case it shall be necessary to consider what meaning and to what extent can be assigned to negligence as alleged in a particular case.
30. Similarly, in Salmond on the Law of Torts, Twelfth Edition, negligence has been given two meanings: 'an independent tort; and a mode of committing some other torts'. As would appear from para 120 on the tort of negligence, Salmond did not accept the view that negligence was over a purely objective fact involving no characteristic or essential mental attitude at all. Nor did he think that negligence had developed into a specific tort, but he regarded it merely as a state of mind providing the essential of liability for recognised torts. However, as mentioned therein the Judges in England have recognised the existence of an action of negligence, that is, as an independent tort.
31. A reference can now be made to the Indian case brought to my notice. In Srinivasa Mull v. Secretary of State, AIR 1938 Pat 556, a general observation was made, I may say with respect, without much comment,
'To state a cause of action it may be sufficient to give a legal description by which a particular cause of action is known, such as damages for breach of contract and damages for negligence.'
However, in the next sentence it was mentioned that even if it was necessary to give particulars, the plaintiffs had in that ease sufficiently stated their cause of action. The allegation made in this Patna case, (AIR 1938 Pat 556) was that the assessment of costs by the Deputy Magistrate purporting to act for the District Magistrate of Monghyr, was illegal and ultra vires. The words 'illegal and ultra vires' give the ground on which the assessment was being challenged and the particulars of this allegation were that the assessment was made by the Deputy Magistrate and not by the District Magistrate of Monghyr. Observations to the contrary were, however, made in G. L. P. Rly Co. v. Jitan Ham Nirmal Ram, AIR 1922 Pat 17 which does not appear to have been considered and overruled at the time the Patna High Court expressed a different view in AIR 1958 Pat 556 (supra).
32. In Prafulla Ranjan v. Hindusthan Building Society Ltd. : AIR1960Cal214 it was hem that where negligence or contributory negligence was charged, full details must be given to the acts on which the party pleading relied as constituting negligence.
33. My attention was also drawn to Form No. 30 contained in Appendix A to the Code ofCivil Procedure with regard to the plaint in a suit for damages for injuries caused by negligent driving. It shall be found that this Form contains all the necessary particulars. It clearly states the improper act of the defendant's servants and the circumstances in which injuries were caused to the plaintiff. This Form is thus more helpful to the defendant than to the plaintiff.
34. To sum up, particulars in sufficient details of negligence carelessness or misconduct on the part of the railway administration or its servants must be stated in the notice under Section 80, C. P. C. to enable the administration to decide whether the plaintiff's claim be accepted or resisted. The furnishing of such particulars is all the more necessaiy when under the law the burden lies upon the plaintiff to prove that the loss was occasioned by negligence or misconduct on the part of the railway administration or its servants. A bare allegation of negligence or misconduct shall not be sufficient. In other words, all the instances of negligence or misconduct, and not necessarily full and complete details thereof, must be given in the notice under Section 80, C. P. C. In' the instant case, the plaintiff's suit could be decreed if it was alleged that the goods were carried by a route other than the agreed one; but no such allegation was made in the notice under Section 80, C. P. C. This instance of negligence or misconduct could not, therefore, be raised during the trial with the result that the plaintiff's claim even though true could not be decreed. The lower courts have thus taken a correct view of the law that the present suit based on the new allegation was not maintainable and they rightly dismissed the suit.
35. The revision has thus no force, and itis hereby dismissed. Costs easy.