1. These applications are by the East Indian Railway and the Bengal North-Western Railway and are directed against two decrees of the Small Cause Court, Aligarh, awarding the plaintiff Rs. 14-4-0 and Rupees 35 compensation, respectively, for damages by wet to two consignments of raw sugar while in transport from Tamkohi Road station on the Bengal North-Western Railway to Aligarh on the East Indian Railway. The consignments were consigned under Risk Note H under the terms of which the consignor undertakes to hold the Railway Administration free from all responsibility for damages, to the goods consigned from any cause 'except upon proof that sach...damages arose from the misconduct of the Railway Administration's servants.' One consignment of 55 bags of raw sugar was booked by the plaintiff firm Jhaddu Lal Hazari Lal from Tamkohi Road to Aligarh on 18th September 1931. The other consignment of 110 bags was booked on 9th September 1931. They were apparently despatched in the same wagon. Transhipment from the Bengal North-Western Railway to the East Indian Railway took place at Juhi. At the time of transhipment 18 bags out of the. consignment of 55, 27 bags out of the consignment of 110 were found to be wet and the fact was noted by the station master at the transhipment station. On arrival at Aligarh 22 bags of the consignment of 55 while only 15 bags of the consignment of 110 were found wet and the damage was estimated by the station master of Aligarh Rs. 33 and 12-4-0 respectively. These were the amounts together with interest that were claimed by the plaintiff in the suit on the allegation that the damage was due to the misconduct of the Railway Administration's servants in loading the bags in a wagon that was not water-tight.
2. The defendants alleged that the wagon in which the goods were carried from Tamkohi Road to Juhi was examined before loading and declared to be water-tight and that the wagon carrying the consignment from Juhi to Aligarh was also water-tight. It was contended that the damage was due to the inherent vice of the commodity and also to the fact that it was susceptible to the damp atmosphere during the monsoon season. They claimed the protection of Risk Note H. The learned Judge of the Small Cause Court was of opinion that the damage was due to the leakage owing to the bad condition of the wagon which carried the bags and that the loading of the bags into a wagon which they failed to examine properly constituted misconduct within the meaning of Risk Note H. He accordingly decreed the suits. Such misconduct has been defined by a Bench of this Court in E.I. Ry. v. Narain Das Ganga Saran : AIR1982All321 as 'bad management, or mismanagement, or culpable neglect of an. official in regard to his office.' Now the finding of the Court below is a, finding of fact and if it is capable of being maintained the case would clearly be one of misconduct. I find it however very difficult to justify this finding from the evidence.
3. A number of cases have been cited by the learned Counsel for the plaintiff-respondent to show that misconduct on the part of the railway servants may he inferred from the admitted facts. These cases are: Secretary of State v. Bhagwan Das : AIR1927All371 , B.N. Ry., Co., Ltd. v. Hukum Chand Hardat Rai A.I.R. 1930 Pat. 559, Secretary of State v. Dhokalmal Mahadeb Lal : AIR1931Cal734 and E. 1. Ry. v. Narain Das Ganga Saran : AIR1932All321 cited above. All these cases however dealt with the loss of a portion of a consignment in transit in circumstances in which misconduct on the part of the railway servants could be legitimately inferred from the facts. The principles involved in such cases do not necessarily apply to a case where compensation is claimed on account of damages by rain-water leaking through holes in a wagon. In B.N. Ry. Co. v. Mooljl Sicka and Co : AIR1930Cal815 it was held by a Bench of the Calcutta High Court that the plaintiff must establish by positive evidence that it was owing to the defective state of the wagon in which the goods were loaded that the injury was caused. By merely proving that when the wagon reached its destination it was found in a defective state he does not discharge the onus which lies heavily upon him to prove misconduct by the servants of the railway company.
4. In the present case the plaintiff has not even proved so much. He has led no evidence to show the state of the wagon either at Juhi or at Aligarh. One of his witnesses, Bans Dhar, who took delivery of the goods at Aligarh stated in cross examination 'I saw the wagon from inside. The wagon was Leaking at many places.' This is a palpable falsehood, as from the fact that a less number of bags were found to be wet at Aligarh than had been found to be wet at Juhi it is clear that the wagon in which the goods were carried from Juhi to Aligarh did not leak. Nor has the plaintiff led any evidence that the wagon was in fact faulty when loaded, at Tamkohi Road. The loading foreman deposed that he tested the wagon by inspection and pouring water upon it. He further deposed that the manager of the plaintiff's factory also examined it and the latter statement was neither challenged in cross-examination nor rebutted. In a very similar case decided by the Calcutta High Court, the B.N. Ry. Co. Ltd. v. Dhanjishah : AIR1930Cal298 it was held that when there are leaks in the roof of a wagon which are not discernable on inspection at the time the goods are loaded and these giving way during the course of the journey the goods in the wagon are damaged by rain-water, no negligence of railway servants is established. It may further be noted that even assuming the finding of the Court below that the damage was caused the leakage of rainwater to be correct, very little leakage can have occurred, as the damage was very slight and some of the bags became dry again between Juhi and Aligarh. In my opinion therefore the evidence in the case does not support the finding of the Court below that the damage was due to the misconduct of the railway servants and these revisions must be allowed. I accordingly set aside the decrees of the Court below and dismiss the plaintiff's suits with costs in both Courts.