1. This is a defendant's appeal arising out of a suit in which the plaintiffs seek to recover the sum of rupees 3,752-5-9 in respect of goods which they allege belonged to them and which were destroyed by fire whilst under the custody of the defendant on 1st February 1929. The main facts of the dispute between the parties are really not in dispute and may be very briefly stated: On 31st January 1929 the plaintiffs' servant took 465 bales of hemp belonging to the plaintiffs to the railway station at Sheopur near Benares. The bales were intended for despatch to Calcutta. No wagon was immediately available to receive the bales, which were accordingly left overnight in the shed belonging to the railway in close proximity to their running line. The following day part of the consignment of bales was destroyed by fire. The plaintiffs allege that sparks from a passing engine of a goods train alighted on the bales and set fire to them. The plaintiffs claim that they are entitled to recover from the Railway Company the value of the hemp which has been destroyed inasmuch as the fire resulted from their carelessness. The Railway Company deny that the bales caught fire as a result of the spark or sparks alighting upon them from a passing engine. This point however is not now open to argument. The lower appellate Court has found that sparks from a passing engine set fire to the bales in question. That is a finding of fact which cannot be challenged in second appeal. In para. 7 of the plaint the plaintiffs set out the grounds upon which they claim that the Railway Company are liable to make good the loss resulting from the fire. They say the said fire was due to the negligence of defendant 1, the Railway Company. Amongst the various acts of negligence the plaintiffs aver that the engine of the said goods train was defective and the coal supplied to the said engine was also of inferior quality and the said train was being driven negligently and in violation of the rules and practice obtaining on the railway, the staff at Sheopur station was negligent and inadequate in extinguishing the fire and the defendant has negligently suffered Sheopur station to remain without any fire extinguishing appliances or without any protection at all. But for the negligence of defendant 1 as in the premises hereinbefore disclosed the said fire could not have taken place and, at any rate, could have been extinguished before any injury could be caused.
2. It will be observed that the plaintiffs charged the defendant with negligence in three respects: (1) The engine and the fuel were defective and the engine was being driven negligently. (2) The Railway Company had failed to take adequate steps for the protection of goods lying in their shed at Sheopur station. (3) They had failed to provide the necessary fire extinguishing appliances which ordinary care dictated should have been provided in a shed containing combustible material in close proximity to a railway line.
3. Upon a consideration of the evidence the learned Subordinate Judge has found that the Railway Company was guilty of negligence in two respects, viz., (1) it failed to provide the necessary protection of the hemp which was consigned by the plaintiffs; (2) it failed to make reasonable provision for the extinguishing of fire in its premises. The learned Judge accordingly held that the loss suffered by the plaintiffs was the result of the defendant's negligence, and he has awarded the sum of Rs. 2,099-13-10 to the plaintiffs. The learned Munsif and the learned Subordinate Judge refused to award the full sum sued for inasmuch as it was proved that a certain portion of the consignment of bales of hemp was saved by the plaintiffs themselves. The plaintiffs preferred a cross-objection in the Court of the learned Subordinate Judge in which they claimed that, they were entitled to the full amount sued for. This cross-objection was dismissed, and no appeal has been preferred against its dismissal.
4. The learned Government Advocate on behalf of the Railway Company has contended that the Railway Company are not liable for the destruction of the bales in question because the plaintiffs failed to observe certain formalities which are prescribed by the Railway Company in their regulations which are published in virtue of powers granted to the Railway Companies under Section 47, Railways Act. He has urged that no delivery can be held to have taken place of the plaintiffs' bales since no forwarding note was tendered to the railway company when the bales were brought to the station, and no receipt therefor was granted by the railway company. He has referred in this connection to Rules 19 and 27 of the Railways General Classification of Goods and General Rules. Rule 19 prescribes that a forwarding note in which the description and the destination of the goods are set out must be tendered by the consignor, and Rule 27 is to the effect that the Railway Company will not be liable for loss unless the goods are booked in the ordinary manner laid down by the Railway Company and a receipt given therefor. The learned Government Advocate has further contended that in any event since the learned Subordinate Judge has not found that the plaintiffs have established the case which they have set out in their plaint they are not entitled to decree for the sum sued for or any part thereof.
5. We shall consider, in the first instance, the argument for the appellant that the Railway Company cannot be liable in view, of the fact that the goods were not accompanied by a forwarding-note at the time they were left at the Sheopur railway station on 31st January 1929. There is little doubt as to what did happen when the goods were taken to the Sheopur station on that day. Prom the judgment of the learned Munsif we find that according to the plaintiffs' witness Ram Sumer, the station-master was informed that the plaintiffs had 465 bales of hemp which they wished to despatch to How-rah. The witness made a request for the provision of wagons for the accommodation of these bales. The station-master promised to provide the wagons, and asked Ram Sumer to bring along to the station the consignment of bales. These bales were brought along and stacked on the railway premises. The defendant company, on the other hand, alleged that Ram Sumer did not obtain the permission of the station-master or any railway official before bringing the bales to the station. They stated that he brought the bales to the station and stacked them in the goods-shed after informing the goods clerk. As the learned Munsif points out in the course of his judgment, there is little material difference between the two versions given by the plaintiffs on the one hand and the defendant on the other. What is perfectly clear is that with the knowledge and consent of the Railway Company the goods were brought to the station and stored in the goods-shed pending the arrival of the wagons which were to convey them to Howrah.
6. Now, if at the time when the goods were stored by the plaintiffs in the defendant's goods-shed a receipt had been taken therefor and a forwarding note granted by the plaintiffs, there could have been n6 question at all of the defendant's liability in respect of the destruction of a portion of these bales whilst they were in the defendant's goods-shed. Learned Counsel for the appellant, however, has contended that in law delivery of the bales to the Railway Company had not been effected, and that therefore the Railway Company had not become a bailee in respect of the goods and so liable under Section 151, Contract Act. Provision is made in the Railways Act that the Railway Company becomes a bailee and is liable as such in respect of goods entrusted to its care for transportation.
7. Although the goods had been deposited in the defendant's goods-shed, as already observed, with the knowledge and consent of the defendant company and allowed to remain there, learned Counsel has contended that the Railway Company cannot be held liable in respect of the destruction of these goods because the plaintiffs failed to comply with the rules and regulations of the Railway Company under which rules and' regulations the Railway Company agrees to do business with the public. The particular omission upon which the learned Government Advocate found was the omission upon depositing the goods in the Railway Company's goods-shed to tender a forwarding note as prescribed by Rule 19 already referred to. In support of his contention that since this rule had not been complied with, the Railway Company could not be held liable for any loss due to destruction of the goods while they were in the goods-shed, the learned Government Advocate referred to the decision in Banna Mal v. Secy. of State (1901) 23 All 367. In that case the proposition was approved that a rule by which a Railway Company disclaimed all responsibility for goods left on the Company's premises unless certain conditions were fulfilled, the principle of which was that the goods should have been accepted and a receipt given for them by a duly authorized employee of the Company, was a rule properly made under the provisions of the Railways Act of 1890, and that no suit in respect of the loss of goods merely deposited upon the Company's premises without such a receipt being taken for them could be maintained.
8. If such a proposition is sound law, then clearly the plaintiffs are not entitled to recover anything in the present suit. On general principle we do not agree with the proposition of law enunciated by the learned Judges in that case. Railway Companies, like all statutory bodies have certain rights, privileges and liabilities. Some of these liabilities are imposed by common law, others by statute. So far as the defendants in this case are concerned, their liabilities are mainly statutory. Now it appears to us that a Railway Company is not entitled by the mere issue of rules and regulations to escape a statutory liability unless the legislature has sanctioned such a procedure. Under the Railway Act, in respect of all goods delivered to it for purposes of transportation the railway company's liability is that of a bailee. It appears to us that the rule by which a Railway Company attempts to escape that liability is a rule which is inconsistent with the Railways Act itself, and therefore ultra vires.
9. There is no doubt that the Railway Company under statutory authority has very wide powers in respect of the framing and publication of rules and regulations under which it contracts as a common carrier to do business with the public. Such rules and regulations, in the very nature of things in the case of a Railway Company, are necessary for the efficient and smooth working of its organisation and the expeditious despatch of its business. But in framing these rules the Railway Company must have regard to the very clear provisions in the statute as to its liability in respect of goods consigned to its care for transportation. Upon general principle therefore we do not agree with the decision in the case referred to above. Apart from general principle however there is a very clear authority in support of the argument which has been preferred by learned Counsel for the respondents that the Railway Company's liability as a bailee remains unrestricted by the publication of the rules already referred to. The point at issue came up for consideration in a case reported in 44 All 218. In that case the principle was approved that where goods are tendered to an appropriate official of a railway company for despatch to a particular destination and are accepted by him, the liability of the company in respect of such goods accrues from the time when the goods are so accepted, and is not dependent upon the granting or with-holding of a receipt for the same on be half of the company by the official who has accepted the goods. The case came before a single Judge in the first instance, and was referred by him to a Bench. The Bench regarded the question as one of importance, and referred it to a Full Bench for decision. The learned Judge who referred the case in the first instance considered the decision in Banna Mal v. Secy. of State (1901) 23 All 367 mentioned above and several other decisions of the Bombay High Court and the Calcutta High Court on the same question. He states:
In my opinion the rulings of the Bombay High Court and the Calcutta High Court seem to be correct and the decision in Banna Mal v. Secy. of State (1901) 23 All 367 to be incorrect.
10. The referring Judge therefore refused to follow the decision in Banna Mal v. Secy. of State (1901) 23 All 367. In his judgment in the case when it came before the Full Bench Walsh, J., stated:
Lastly I would merely add that really the case in Banna Mal v. Secy. of State (1901) 23 All 367 does not govern the case, even if it were rightly decided. In my view it was wrongly decided.
11. A number of other decisions were referred to by learned Counsel for the respondents which he claimed destroyed the authority of the decision in Banna Mal v. Secy. of State (1901) 23 All 367. He referred, for example, to the case of Moolji Sicka & Co. v. B.N. Ry. Co. 1932 35 C W N1242 and the case in Jalim Singh v. Secy. of State (1904) 31 Cal 951. In the case last mentioned it was held that rules framed by the Railway Company under Sections 47 and 54, Railways Act, whereby goods were to stand at owner's risk and the Railway Company, were not to be liable therefor, until a receipt had been granted by them, were inconsistent with the Act and unreasonable, and that the Railway Company were liable to pay compensation for the loss incurred. In the course of his judgment in this case Stephen, J., considers the effect of non-compliance with the rules of the railway company in respect of the delivery of goods to the railway company for transportation. He proceeds:
It is argued that there was no delivery in this case, because under the circumstances stated, delivery does not take place until a receipt is given by the Railway Company. I cannot read this section in that way. Delivery should be taken to be a purely lay word, devoid of any legal significance at all; it alludes to a physical. event; I do not think one can say that whether there is delivery or not, it is in any way affected by any legal event. Therefore I take delivery in that section to refer to a physical event, an important element of which is that, whatever: is delivered passes from the physical custody of, one man to the physical custody of another.
12. We are not called upon in this case to decide whether this statement of the law by the learned Judge, which is very wide and sweeping, can without qualification be regarded as sound. We have no doubt however that in the present case, where goods have been brought by a consignor to a railway station to be transported by the railway company, delivery is a physical event, and delivery is completed when the goods are not refused by the railway company and allowed to be placed in their premises.
13. Learned Counsel for the respondents referred also to the decision in another case, Munna Lal v. E.I.Ry. Co. 1923 All 71. In that case it was decided that where the station-master never definitely told the plaintiff in unmistakeable terms that the goods were-being kept on the railway premises at his own risk, and also never definitely accepted the goods at railway's risk, his con-duet in retaining the goods in the railway shed afforded evidence that, he accepted the bailment of the goods on behalf of the railway company; Section 72, Railways Act came into operation, and the railway-company was responsible for their safe custody. In view of the general considerations to which we have referred above, and of the decisions cited in our judgment,, the decision in Banna Mal v. Secy. of State (1901) 23 All 367 can no longer be regarded as sound law. The learned Government Advocate drew a distinction between the non-furnishing of a forwarding-note by the consignor who brings his goods to the railway station, and the failure of the railway company to issue a receipt. In view of the law as it has been laid down in the cases referred to above, the learned Government Advocate was constrained to admit that so far as the failure to furnish a receipt was concerned, that could not be made a ground for exempting a railway company from liability in respect of the destruction of goods consigned to its care. He contended however that the failure to furnish a forwarding-note stood on an entirely different footing; that there was a difference in principle between the cases of the failure to grant a receipt, and failure to tender a forwarding-note. We have considered this argument, in support of which the learned Government Advocate was unable to produce any authority beyond an inference from the decision in the case reported in Banna Mal v. Secy. of State (1901) 23 All 367.
14. In our view there is no such distinction in principle. The important point is, were the goods accepted by the Railway Company? Was physical delivery effected by which the Railway Company agreed that the goods should be placed on its premises pending the arrival of the wagons for their accommodation? Now, in the present case, in our judgment, there can be no doubt as to what was effected, whether the consignor's servant went to the station-master and took his permission in the first instance before the bales were brought to the station or not. There is no doubt that with the consent of the Railway Company's servant these goods were brought to the station, and they were deposited in the railway goods-shed and allowed to remain there. The defendants in their written statement alleged that there was a practice on the part of consignors, in order to secure priority in obtaining wagons, to bring goods inside the premises of a railway station and stack them there, and to appoint a watchman to look after them; and that in these cases the Railway Company was not regarded as responsible for their safe custody. The evidence upon this point has been considered by the learned Subordinate Judge, and he has held that the railway company has failed to substantiate the averment. In the result, in this branch of the case we hold that the 465 bales of hemp were tendered by the plaintiffs to the defendant's servant at Sheopur station on 31st January 1929, that they were with the consent of the Railway Company's servant placed in the Railway Company's goods-shed near running line, and that therefore the goods were delivered by the plaintiffs to the Railway Company within the meaning of Section 148, Contract Act. It follows that in respect of these goods the Railway Company's liability is that of a bailee, and if the goods, or a portion thereof, have been destroyed because the Railway Company failed to take as much care of these goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value, the Railway Company are liable for any loss sustained by the plaintiffs.
15. This brings us to a consideration of the question of negligence. We have above referred to the grounds of negligence-alleged by the plaintiffs in their plaint. Certain evidence was led with a view to establishing the averment that the Railway Company were guilty of negligence in respect of the engine which they used, and the fuel which was being consumed by it. The Courts below however have-not decided the case upon this averment. They have held that the Railway Company has been negligent because it failed to provide reasonable protection for the bales of goods, which were admittedly combustible, and which were' deposited close to the running line, and because it failed to make reasonable provision for the extinguishing of fire in its goods-shed. Now, as we have remarked, the finding that the bales of hemp were set on fire by a spark or sparks from a passing engine must be accepted in second appeal. Learned Counsel for the appellant, however has contended that the Courts below have made an entirely new case for the plaintiffs, and have not given a decision upon the case as set out by the plaintiffs in their pleadings. Certainly the learned Subordinate Judge has not held that the Railway Company were using inferior coal, or that the engine from which the sparks came was defective in any way, or was being driven carelessly, but he has held in clear and specific terms that the Railway Company had failed to show that there were proper arrangements to save the hemp from fire. In the course of his judgment the learned Subordinate Judge points out that fires had occurred in the Railway Company's premises prior to the destruction of the plaintiffs' bales of hemp. Whether evidence was led to support such a finding is not clear, but it is common knowledge, and it must be presumed that railway companies know that fires are frequently caused by sparks from engines, and goods lying in close proximity to the running line are often destroyed by fire. The learned Subordinate Judge has stated his opinion, with which we are in complete agreement, that, it was the duty of the Railway Company to protect the goods which had been con-signed to its care from fire or sparks. He has found that the Railway Company had failed in this duty, and had failed further to make ordinary provision for the expeditious extinguishing of any fire that might break out in the goods-shed.
16. Whether the Railway Company has been negligent in that it had not made reasonable provision for the protection of the plaintiffs' bales of hemp, or for the extinguishing of any fire that might occur on its premises, is really a 'jury question.' The hemp was stored within 30 or 45 feet of the running line, no shield was provided to prevent the sparks from passing engines alighting on combustible materials stored in the shed, and so far as appliances for extinguishing fires are concerned, all that seems to have been proved was half a dozen iron water-buckets, which were empty at the time when the plaintiffs' bales caught fire. In these circumstances we have no hesitation in concluding that the Railway Company was grossly negligent in failing to make adequate and reasonable provision for the protection of the goods which had been delivered to it by the plaintiffs and accepted by them for transportation to Calcutta. The Railway Company in the circumstances are liable as bailees under Section 151, Contract Act. In the result the appeal is dismissed with costs.