1. In this case the Plaintiffs are a firm of cloth merchants trading at Tinnevelly. The Defendants are the South Indian Railway Company and the Bombay Baroda and Central India Railway Company. The suit is for damages for the loss of a bale of cloth sent to the Plaintiffs by an Ahmeda-bad firm of merchants. It is admitted that this bale was despatched from Ahmedabad on the 9th of May, 1920, addressed to the Plaintiffs, and was entrusted to the Bombay Baroda and Central India Railway Company at Ahmedabad for that purpose but was never delivered to the Plaintiffs. The District Munsif found that this bale was sent at owner's risk under a railway receipt, Ex. B, which was endorsed by the Ahmedabad firm to the Plaintiffs, and that the Ahmedabad firm had executed a general risk-note, Ex. I, on 1st January, 1920, under which consignments sent by them by the railway were to be sent at owner's risk. The terms of Ex. I are:
Whereas all consignments of goods or animals for which the Bombay Baroda and Central India Railway Administration quotes both owner's risk or special reduced rates and railway risk or ordinary rates are (unless I shall have entered into a special contract in relation to any particular consignment) despatched by me at my own risk and are charged for by the Bombay Baroda and Central India Railway Administration at special reduced or owner's risk rates instead of at ordinary tariff or railway risk rate, I, the undersigned, in consideration of such consignments being charged for at the special reduced or owner's risk rate do hereby agree and undertake to hold the Bombay Baroda and Central India Railway Administration and all other Railway Administrations working in connection therewith, etc. harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, all or any of such consignments from any cause whatever except for the loss of a complete consignment or one or more complete packages forming part of a consignment due either to the wilful neglect of the Railway Administration or to theft by or to the wilful neglect of its servants, transport agents or carriers employed: By them before, during and after transit, over the said Railway or other railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for carriage of the whole or any part of the said consignments, provided the term wilful neglect' be not held to include fire, robbery from a running train or any unforeseen event or accident.
2. Exhibit I purports to be signed by one Mohanlal, who has been examined as D.W. 5, for the Ahmedabad firm. The District Munsif found that the bale was consigned under the terms of the risk-note, Ex. I, and that the Plaintiffs had not proved any wilful neglect on the part of the railway administration or its servants, and so he dismissed the suit. On appeal the Subordinate Judge called for findings on two points:
(1) Whether the bale of goods in respect of which the Bombay Baroda and Central India Railway Company gave receipt, Exhibit B, to Subodh Chandra Bhopatlal Shah (the name of the Ahmedabad Firm) was received by the said company subject to the conditions of the risk-note, Exhibit I,' and ' (2) whether Mohanlal, the person by whom the risk-note, Exhibit I, purports to have been executed, had lawful authority from Subodh Chandra Bhopatlal Shah, the consignor, so to execute the document.
3. The District Munsif returned affirmative findings on both those issues, but the Subordinate Judge differed from him and' found in the negative on each of them, and eventually made a decree for the Plaintiff for Rs. 600, the value of the bale and interest. The Defendants came on second appeal to this Court. That appeal was heard by Devadoss, J. He found that Mohanlal did sign Ex. I, which is not disputed, and he accepted the Subordinate Judge's finding that Mohanlal had no authority from the Ahmedabad firm to sign that document. He also found that Mohanlal delivered this bale, with which we are concerned, to the railway company at Ahmedabad but that there was no proof that he authorised it being sent to the Plaintiffs at owner's risk. He therefore confirmed the Subordinate Judge's decree. The present appeal is preferred by the South Indian Railway Company against Devadoss, J.'s decision.
4. Devadoss, J., did not discuss the Subordinate Judge's finding that Mohanlal had no authority to execute Ex. I. Exactly why he did not think it necessary to discuss that finding is not quite clear. The case was heard a long time ago, and only one of the learned gentlemen who appeared in the case then is in it now. What the Subordinate Judge said on that point is:
The utmost that the evidence could prpbabilise is that Mohanlal was employed in the firm of Subodh Chandra Bhopatlal Shah and that he went and executed a risk-note but there is nothing to show that he executed the risk-note, Exhibit I, under instructions of -any person who had authority so to do and thereby bind Subodh Chandra in the matter of the transaction.
5. He went on immediately to say:
If the risk-note had been executed simultaneously with the consignment note, Exhibit V or the railway receipt, Exhibit B, there may be some force in the contention that Mohanlal had authority so to do; but I notice that Exhibit I was executed in January, 1920, nearly five months Before the consignment note, Exhibit V.
6. Now the learned Subordinate Judge's statement of the evidence on the question whether Mohanlal had authority is not correct. His Lordship then discussed the evidence on this point and concluded as follows:
7. In my opinion the proper finding is that the Ahmedabad firm did send this bale at owner's risk under the conditions of Ex. I; and, if the Ahmedabad firm was bound by those conditions, so are the Plaintiffs.
8. We must take it therefore that the Plaintiffs are bound by the conditions which attach to goods sent at owner's risk in accordance with Ex. I, and therefore, although this bale has, as is admitted, been lost, they cannot recover anything on account of that loss, unless wilful neglect on the part of the railway administration or its servants or theft by the servants of the railway is made out. If either of these things is to be made out, I think it is clear that it is the Plaintiffs who have to make it out. In Smith, Ltd. v. Great Western Railway Co. (1922) 1 A.C. 178 dealing with a somewhat similar risk-note in England the House of Lords decided, that it was for the plaintiffs, who claimed compensation for loss, to make out affirmatively that the loss was due to the wilful misconduct of the railway company's servants, wilful misconduct being what had to be made out in that case under the terms of the note in question. There have been a large number of decisions in this country that under such a note as Ex. I, the burden is on the plaintiff to prove wilful neglect or theft by railway servants. B.B. & C.I. Railway Co. v. Ranchhodlal Chhotalal and Co. I.L.R. (1919) 43 B. 769 and East Indian Railway Co. v. Nathmal Behari Lal I.L.R. (1917) 39 A. 418 were among those quoted before us. On the other side one decision of a Bench of the Allahabad High Court, Shoo Narain v. East Indian Railway I.L.R. (1927) 50 A. 246 was quoted to the effect that the burden was not on the plaintiff in such circumstances. With great respect I am unable to agree with that decision, which is in my opinion not only against a long current of decisions but against the plain meaning of Ex. I.
9. Have the Plaintiffs made out in this case either wilful neglect on the part of the railway administration or its servants or theft by railway servants? It has been pointed to us that in Tamboli v. The G.I.P. Railway Co. (1927) L.R. 55 IndAp 67 : I.L.R. 52 B. 169 : 54 M.L.J. 167 (P.C.) their Lordships of the Privy Council, dealing with a note in the same terms as Ex. I, decided that the omission to provide efficient means for extin-guishing fire at a railway station was not evidence of 'wilful neglect.' If I may say so, in the circumstances of that case, it was not very difficult to come to that conclusion, and their Lordships dealt with that part of the case very briefly, as indeed it had been dealt with in the High Court of Bombay. But Lord Cave in delivering the judgment referred to the definition of 'wilful neglect' in Reg v. Senior (1899) 1 Q.B. 283 as stated by RusseLL, C.J. Lord Russell said, interpreting the words 'wilfully neglects' in a penal statute, that 'wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it,' and that ' 'neglect' is the want of reasonable care.' Now, as their Lordships of the Privy Council drew attention to that definition in connection with the words 'wilful neglect' in a risk-note such as this, it is certainly for us to pay the very greatest attention to that definition and to allow it all possible weight. But there are many other cases that have been quoted before us in which the expression 'wilful neglect' has been discussed. In re Mayor of London and Tubbs' Contract (1894) 2 Ch.D 524 Lopes, L.J., said:
It is difficult to lay down any general definition of 'wilful'. The word is relative, and each case must depend upon its own particular circumstances.
10. If I may say so, that seems to me a very useful expression of opinion to bear in mind in such cases as this. Mr. Govindan Nambiar for the Defendants also drew our attention to the City Equitable Fire Insurance case (1925) 1 Ch.D. 407 in which Romer, J., discusses the meaning of 'wilful neglect' on the part of directors of companies at length. In that case he stated that in his opinion 'wilful neglect' includes reckless carelessness 'in the sense of not caring whether his act or omission is or is not a breach of duty.' I think we are entitled to bear in mind all those definitions of 'wilful neglect' or opinions regarding the meaning.1 of that expression, and that in a case such as this it is useful to do so. But there can be no doubt that 'wilful' in the expression wilful neglect' does carry with it some element of intention or at least of a conscious disregard of duty. It is not an easy expression to apply in varying circumstances; and the fact that it is partly a positive and partly a negative expression makes the task the more difficult. But, if we take the expression by itself, I think one or the other of those elements must be included in what is meant by it. However it happens that in this case we do not have to interpret 'wilful neglect' in the abstract. 'Wilful neglect' in the risk-note, which I have read, appears twice. On the second occasion it appears in the proviso at the end of the note, and that proviso I think is very enlightening. We ought to notice, I think, that in Tamboli v. The G.I.P. Railway Co. (1927) L.R. 55 IndAp 67 : I.L.R. 52 B. 169: 54 M.L.J. 167 (P.C.) Lord Cave specially mentions that it was not necessary in that case to discuss the exact effect and meaning of that proviso. The proviso is in these words:
Provided the term 'wilful neglect' be not held to include fire, robbery from a running train or any unforeseen event or accident.
11. Now it will be noticed that the happenings which are excluded from 'wilful neglect' by that proviso do not necessarily imply any intention, any knowledge, any conscious omission or even any premonition of danger. Surely that affects the meaning of 'wilful' in this contract. 'Wilful neglect,' where it first occurs in Ex. I, must be held to include something wider than intentional neglect or even conscious disregard of duty. Otherwise what is the meaning of these exclusions in the proviso? Perhaps it might be urged that we ought to read the proviso as if it ran 'provided the term 'wilful neglect' be not held to include neglect to guard against fire and so on.' But that would not help the Defendants in this case, because it would imply that, though neglect to guard against fire, robbery from a running train or any unforeseen event or accident would be excluded from 'wilful neglect,' failure to guard against other dangers would not be excluded. I do not think that we can get away in this case from the fact that this proviso throws light on the way in which the expression 'wilful neglect' is used in this contract and widens that wilful neglect into something more than the literal or usual meaning of the words. At the same time we have to give some proper meaning to the word 'wilful': we cannot treat wilful neglect in this connection as meaning nothing more than mere neglect. It is a very difficult expression to interpret properly. But it appears to me fair and correct to interpret it in Ex. I as including reckless carelessness and knowing omission to take reasonable care of goods accepted for carriage. Mr. Govindan Nambiar very reasonably urged that, if we interpret 'wilful neglect' in such a way as that, we are putting the Railway company almost in the position of ordinary bailees in respect of goods accepted under this note. In connection with that it is to be remembered that the inter-pretation would have effect only if the whole of a consignment or a whole package of a consignment were lost, and I do not think it is necessarily unreasonable to interpret the risk-note as extending the Railway company's liability or cutting down its exemption to a very considerable extent in respect of such a complete loss.
12. But, as I have said, 'wilful neglect,' however interpreted, is for the Plaintiffs to prove. Mr. Govindan Nambiar has urged that from the mere loss of this bale we could never properly infer wilful neglect on the part of the railway administration, or its servants, and in support of that he has quoted B.B. & C.I. Railway Co. v. Ranchhodlal Chhotalal & Co. I.L.R. (1919) 43 B. 769 and East, Indian Railway Co. v. Nathmal Behari Lal and Ors. I.L.R. (1917) 39 A. 418 cases. In those two particular cases there is no such general statement. All that is to be found there, as I understand those cases, is that the learned Judges in the circumstances did not consider the mere loss of the goods to be sufficient basis for an inference of wilful neglect. But there are no doubt other cases which go so far as to say generally that the loss itself is not sufficient basis for an inference of wilful neglect. The inference that there has been wilful neglect must be one of fact, and I am certainly not prepared to be led into any general statement of the character suggested. Indeed few things appear to me of less profit than for a Judge to make general statements that such and such inferences of fact cannot be drawn in cases which are not before him. Whether such an inference is to be drawn will depend upon the circumstances of each case. I am not prepared to say that, if a railway company accepted for carriage an elephant or a heavy engine or a large piece of machinery or a big girder for a bridge and afterwards said that it was lost, it had disappeared and they did not know what had become of it, that admission of loss would not itself imply wilful neglect on the part of the railway company or its servants. Here we are dealing with a bale, which from the record appears to have been 4 maunds in weight, that is about 3 courts. That would take two or three men to move.
13. I am not prepared to say that, if there was evidence that such a bale had been delivered to a railway company properly addressed, had not been mixed up with other goods, had been sent off in the right direction and had disappeared, it might not be possible in a proper case to infer wilful neglect on the part of the railway company or its servants in those circumstances. In Smith, Ltd. v. Great Western Railway Co. (1921) 2 K.B. 237 when it was, before the Court of Appeal, Scrutton, L.J., said:
In my opinion it is impossible to lay down any general rule as to the facts from which one can infer in the absence of explanation of loss, loss by wilful misconduct of the company's servants (misconduct being the matter in question there). It must depend on the nature of the subject-matter and of the stage of the transit reached in each particular case.
14. And he went on to give the illustration of an elephant,. which I have just used.
15. However, it is not necessary to pursue that speculation any farther in this case because it happens that the Plaintiffs have been able to prove a great deal more than mere loss of this bale. They have proved that it was not misdirected--there is no suggestion of that at any rate--that it was not mixed up with other goods and that it was not sent off in a wrong direction. On the contrary it arrived safely at Erode Junction, and there it was put into a goods train to go to Trichinopoly. They have-been able to examine the Guard of that train, P.W. 3. He says:
I am Guard in S.I. Railway. I do not know how the bale in suit was lost between Erode and Pasur. I believe it was stolen. Between Erode and Pasur there is a station called Chavadipalayam. Distance between Erode and Pasur is 10 miles. The train left Erode at 1-42 a.m. and reached Pasur at 2-19 a.m. The train did not stop at Chavadipalayam. I examined the seals about half an hour before the train left Erode. On both sides of the wagon there were seals....The train travelled at 17 miles per hour. The wagon in question had lost its seal on the off-side. The bolt had been opened, the bolt on the bottom was just touching the bottom. The doors were closed when I saw them. They were not open. The bolt at the bottom should have been removed before the door was opened. I examined the wagon and found 26 bales inside it. The wagon has no foot-board. The centre bolt would be 5 or 5i feet above ground level and about 3 feet over platform level. I sent the telegram, Ex. D. I checked the contents with the invoice at Pasur and found the bale in question missing.
16. His evidence is corroborated by his telegram, Ex. D, which he sent after he discovered the loss of the bale at Pasur. So it will be seen that the Plaintiffs have got a long way farther than merely proving the loss of this bale and basing wilful neglect on that. They have proved--there is no evidence to the contrary and there is no contest about it in fact--that this bale was in the Goods train at Erode Station half an hour before the train started: 37 minutes after the train started from Erode it reached Pasur, and the bale was missing. That has narrowed the time at which the loss occurred to just over an hour. Obviously. the bale must have been stolen from the train during that time. The Plaintiffs have been able to draw the net close; and no doubt it was because the Defendants were aware of that they pleaded in their written statement that this loss was due to theft from a running train. However they made no attempt to prove that, and any suggestion appears to me extremely improbable in the circumstances. We are to suppose, if the door of this wagon was opened on the way between Erode and Pasur, either that it was opened by a man who ran alongside the train and opened the bolt as he went along or that he was able to open the bolt by a blow with something as the train went by or that he jumped on to the train and opened the bolt. Now, if that train was going at 17 miles an hour, it was going about the pace at which a champion runner does a quarter of a mile. It would be extremely difficult for anybody to run at that pace along a railway track, a very bad place for running. We may put on one side the theory that the bolt might have been opened by a man running alongside of the moving train. It is still less probable that it was opened by a man who jumped on to the train as it went along. There was no foot-board, the Guard says. There is no suggestion that there was any handle or anything else to which a man could cling. All that he could apparently hold, if he succeeded in jumping at the van, would be the very bolt which he had to open. There were indeed two bolts, one in the middle of the door and one at the bottom. That they could be opened by a blow or blows as the train went by is too improbable to be worth considering. So we may put all these theories aside. It is quite beyond the bounds of reasonable probability that any one opened the door from outside while the train was running between Erode and Pasur.
17. What remains? The train stopped for half an hour in the yard of Erode Junction after the seals were examined by the Guard. From his evidence it appears that it was drawn up against a platform, as he speaks of two sides of the train, the platform side and off-side. It was a door on the off-side that he found had been opened. We are forced to the conclusion, I think, on the evidence available that the door of the wagon in question was opened during the half hour the train stopped in Erode Station after the Guard had examined the seals and found them all right. What is the inference from that? It has been suggested to us by Mr. Sitarama Rao that the bolts were drawn and the door opened by some railway servants or some one with the connivance of railway servants. That is not at all an improbable explanation in the circumstances, as railway servants would be the persons who could approach the wagon without creating suspicion. If that is the proper inference, the Defendants must fail, because they are not exempt from' liability for the loss if it is due to theft by railway servants. Another possible alternative inference is that outside thieves came into the station yard, opened the door of the wagon during the half hour available and carried off this bale. If that were so, they would not only have to carry this bale out of the wagon but would also have to carry it out of the station. If they were able to do both those things without being observed, is it possible to acquit the Railway company of wilful neglect within the meaning of those words as they are used in the risk-note, Ex. I, interpreting them as I think they ought to be interpreted? Erode Junction is an important station. Are we to suppose that the railway company take such little care of goods accepted by them for carriage that thieves can come into the station, go up to a train standing at a platform, open a door and carry a heavy thing like this bale away out of the station premises without anybody ever seeing them? Surely, if that could be done, there would have to be some knowing omission to take reasonable care of goods, which in the circumstances would amount to wilful neglect within the meaning of Ex. I. Mr. Govindan Nambiar has suggested that there is a third alternative, that thieves got to the train while it was in the station yard, opened the door, got in, travelled in the train for some distance and then tipped the bale out on the way side. I do not think that that is at all an impossible explanation, though I cannot agree with him that that would bring the case within the exception of robbery from a running train. In my opinion it is unreasonable to interpret 'robbery' in Ex. I, which is made out in a form prescribed by the Governor-General in Council, as meaning nothing more than theft. That would be to accuse the persons who prescribed that form of gross ignorance, which is quite unjustifiable so far as I can-see. The actual removal from the van might have been done in that way as the train was running between the stations. But here again we come to this, that the persons concerned were able to break open this van and get into it while it was standing at the platform at Erode Station. Again can we properly acquit the railway company of wilful neglect as that expression is used in Ex. I in those circumstances? In my opinion we cannot do so.
18. The question what happened appears to me to be one of inference of fact, and the inference which I think should be drawn from the facts disclosed in the case is that either this bale was stolen by railway servants or that it was stolen by somebody else in circumstances made possible by wilful neglect of the railway servants within the meaning of Ex. I. I may mention that a similar inference was drawn in very similar circumstances in Idris v. E.I. Ry. Co. : AIR1927All348 . As Mr. Govindan Nambiar has pointed out, the District Munsif before whom this case first came found that there was no neglect. He was entitled to come to that finding if he considered the evidence in full. But I need only say regarding his finding that he does not appear to have come to grips with the facts of the case as really disclosed by the evidence. The learned Subordinate Judge, when the case came before him, as he held that this bale was not Sent at owner's risk, did not think it necessary to go into the question whether there was theft by railway servants or wilful neglect on the part of railway servants. Therefore we have no finding from the first Appellate Court on that question. In the circumstances Devadoss, J., would have been entitled, and we in the present appeal are entitled, to make a finding of fact on that question under Section 103 of the Code of Civil Procedure. In my opinion that is the proper course for us to adopt in this case instead of sending it back for a finding from one of the Lower Courts and so prolonging this very old litigation.
19. In my opinion Devadoss, J.'s decision, affirming the Subordinate Judge's decree that the Plaintiffs should get compensation from the Defendants for the loss of this bale, is correct, though not for the reasons given by the learned Judge, and therefore this appeal should be dismissed with costs.
Anantakrishna Aiyar, J.
20. This Letters Patent Appeal arises out of a suit instituted by the Plaintiffs (merchants of Tinne-velly) to whom certain goods were despatched by a firm of merchants at Ahmedabad to recover the loss caused to them by reason of the non-delivery of the goods. The Bombay Baroda and Central India Railway Company to whom the goods were delivered at Ahmedabad was made the second Defendant to the suit and the South Indian Railway Company was made the first Defendant. The plaint alleged that the Defendants when asked for the delivery of the goods replied that 'the goods were lost by theft in the running train.' The plaint further alleged that the allegation by the Defendants about theft in the running: train was false, that the goods arrived at the Erode Railway Station of the first Defendant at about 1 a.m. on 10th June, 1920, by the Goods train, that the Defendants' allegation that it was lost by theft while th,e train was running between Erode and Pasur was false, and that the goods were lost by the wilful neglect of the South Indian Railway Company or by theft by, or owing to the wilful neglect of, its servants.
21. The first Defendant pleaded that the goods were despatched under risk-note Form H in force in May, 1920, from the Ahmedabad Railway Station, that in consideration of lower rates being charged the owner of the goods accepted all risks in connection with the same and undertook to hold the Railway Company--B.B. & C.I. Ry. Company and all other railway administrations working in connection therewith--harmless and free from all responsibility for any loss, destruction, etc., of the goods from any cause whatever except for the loss of a complete consignment due either to the wilful neglect of the railway administration or to theft by, or to the wilful neglect of, its servants, etc. It was also pleaded that the goods were lost by theft in the running; train between Erode and Pasur on 10th June, 1920. The second Defendant accepted the first Defendant's written statement. The Plaintiff examined three witnesses while the Defendant examined none. The consignment note, the railway receipt, and the risk-note alleged to be executed on behalf of the consignor, were the chief documents filed in the case, in addition to a telegram sent by the Guard in charge of the Goods train from Pasur on the day in question intimating that the goods were missing when examined at that station.
22. The Trial Court found against the plea of theft in the. running train put forth by the Defendant. It however found that the Plaintiffs had not proved wilful neglect on the part of the Defendants. The suit was accordingly dismissed by the Trial Court.
23. On appeal, the learned Subordinate Judge raised two new issues for trial and remitted the same to the Trial Court, with liberty to the parties to adduce fresh evidence thereon. Those issues related to the questions whether Ex. I--the risk-note--was. signed under the authority of the consignors, and whether the consignment note was signed by the, person delivering the goods or having authority from the consignor to sign the same. On receipt of the findings, the Subordinate Judga held that the risk-note Ex. I was not signed by any person authorised by the consignors and that the Defendants could not rely on risk-note Form H in the case. The appeal was accordingly allowed and the Plaintiffs given a decree for the amount claimed.
24. The Second Appeal preferred by the Defendants was heard by Devadoss, J., who held that Ex. V--the consignment note--was not signed by the person who delivered the goods to the Railway Company or by anybody who had authority to sign the same on behalf of the consignors. On that ground the Second Appeal was dismissed.
25. The Defendants have preferred this Letters Patent Appeal against the decision of the learned Judge.
26. On behalf of the Appellants it was first argued--
(a) that the finding of the Lower Appellate Court on the binding nature of Ex. I was unsustainable and that the proper inference to be drawn is that the goods were consigned at the owner's risk under risk-note Form H;.
(b) that the Plaintiffs could not succeed unless they prove wilful neglect on the part of the Railway Company, and that in the present case there was no evidence to prove wilful neglect; and
(c) that the goods were lost by theft in a running train between Erode and Pasur.
27. The finding of the learned Subordinate Judge that Ex. I was not binding on the consignors appeared on the face of it to be a finding of fact binding on us in second appeal whether his appreciation of evidence regarding it was correct or not; but on examining his judgment it is clear that the learned Judge was under a misapprehension and that his finding could not be accepted. His Lordship discussed the, evidence and concluded:
28. As Ex. I is binding on the consignors,, I am of opinion that the consignment made in question on the 9th of May, 1920, must be taken to have been despatched at owner's risk Form H, and the rights and liabilities of the parties should foe considered on that footing.
29. We must now consider the next question raised by the learned advocate for the Appellants, viz., whether the Plaintiffs have proved that the loss was due either to the wilful neglect of the railway administration or to theft by or due to the wilful neglect of its servants. We were referred to various authorities on the question as to what is meant by 'wilful neglect' The decision of the Privy Council in the case reported in Tamboli v. The G.I.P. Railway Co. (1927) L.R. 55 I.A. 67 : I.L.R. 52 B. 169 at 176 : 54 M.L.J. 167 (P.C) as to the meaning of the expression 'wilful neglect' was referred to, where their Lordships observed as follows:
Reference may be made to the cases of Reg v. Downes (1875) 1 Q.B.D. 25 and Reg v. Senior (1899) 1 Q.B. 283 in the latter of which cases Lordi Russell interpreted the expression 'wilful neglect' as meaning that the act is done deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it.
30. The actual decision in the case was that the omission by a railway administration to provide efficient means for extinguishing fire was not evidence of 'wilful neglect.' Their Lordships considered it unnecessary to consider the effect of the final proviso to the risk-note which declared that 'wilful neglect' shall not include 'fire.
31. The decision of the House of Lords in the case reported in Smith, Ltd. v. Great Western Railway Co. (1922) 1 A.C. 178 was also relied upon. The risk-note in question in the case before the House of Lords exempted the Railway Company from any liability except upon proof by the owner of the goods that the loss arose from 'the wilful misconduct' of the Railway Company's servants. The House of Lords hold that the refusal of the Railway Company to account for the loss of the goods was not evidence which justified the Court in inferring that the loss arose from the wilful neglect of the Defendants' servants, and the decision of the Court of Appeal in Smith, Ltd. v. Great Western Railway Co. (1921) 2 K.B. 237 was affirmed. It must be observed that the wordings of the risk-note, Ex. I, are different from the wordings of the risk-note in the English case. The wordings used in the risk-note Ex. I, are 'wilful neglect,' whereas the wordings used in the risk-note in the English case are 'wilful misconduct.' I may here state that after that decision of the House of Lords, and having regard to the observations made therein, and also by the Court of Appeal in that case, the form of the risk-note under Section 72 of the Indian Railways Act was altered in 1924.
32. Instead of the words 'wilful neglect' we find the word 'misconduct' used in the new H Form. The word 'wilful' nstead of 'neglect' we have the word 'misconduct.' The word 'theft' which occurred in the old Form has been omitted, and it is expressly provided that the burden of proving misconduct shall lie on the consignor. The alterations made in 1924 also placed the railway administration under a liability to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary, to give evidence thereof, before the consignor is called upon to prove misconduct, while making it clear that the burden of proving such misconduct shall lie upon the consignor.
33. The judgments of the learned Lords Justices in Smith, Ltd. v. Great Western Railway Co. (1921) 2 K.B. 237 and In re City Equitable Fire Insurance Co. Ltd. (1925) 1 Ch.D. 407 contain extracts from several earlier decisions throwing light on the meaning of the expressions 'misconduct', 'negligence' and 'wilful negligence'; so also the judgment of Romer, J., in the case reported in In re City Equitable Fire Insurance Co., Ltd. (1925) 1 Ch.D. 407. I do not, however, think it necessary to go into those cases elaborately at present, since the form of the risk-note has been altered in 1924, and the. questions that may arise in future will have to be decided with reference to the wordings of the new Form.
34. As observed by Lopes, L.J., in In re Mayor of London and Tubbs' Contract (1894) 2 Ch.D. 524 at 539 it is difficult to lay down any general definition of 'wilful'. The word is relative, and each case must depend upon its own particular circumstances.
35. Again, at page 538:
If the neglect or default in this case arose from the voluntary act of the parties, either awake or asleep with reference to their rights and interests, and did not at all arise from the pressure of external circumstances over which they could have no control, I apprehend that the neglect or default was wilful.
36. Lord Alverstone, C.J., in Forder v. Great Western Railway (1905) 2 K.B. 532 at 535 observed as follows:
Wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident and is far beyond any negligence,, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure, or omission, regardless of consequences.
37. Pollock, M.R. suggests the addition of the following to the above:
Or acts with reckless carelessness, not caring what the results of his carelessness may be.
38. Coming to the question of the onus of proof, I do not agree with the contention raised by the learned advocate for the respondent, based on the decision of the Allahabad High Court in the case reported in Sheo Narain v. East Indian Railway (1922) 1 A.C. 178 that it is for the Railway Company to show that there has been no wilful neglect on their part. The contrary has been held in various decisions by several High Courts in India, including our own Court (The M. & S.M. Railway Co., Ltd. v. Nallathambi Chetti, A. Rathnavelu Chetty and Co. : (1927)53MLJ407 and The Bombay Baroda and Central India Railway Company v. Pratapchand Firm (1924) 48 M.L.J. 400). The wordings of the section support those decisions. The onus of proof of wilful neglect, or theft by or owing to the wilful neglect of the servants of the Company is on the Plaintiff. Throwing the onus on the Plaintiff, I have to consider what is the inference to be drawn from the evidence in the present case.
39. It is true that the Trial Court found that the Plaintiff has not proved wilful neglect. But it has not, in my view, discussed the evidence properly, nor given due weight to the various circumstances appearing in the evidence. Neither the Subordinate Judge nor the learned Judge in second appeal considered it necessary to discuss this question; and having regard to the provisions of Section 103, Civil Procedure Code, and as the whole of the evidence was read before us, I think the present is a case where, to put an end to this dispute which started in 1920, we should record findings ourselves instead of referring the matter to the Lower Court. The facts proved are the following, and these are admitted by the Guard in charge of the Goods train from Erode to Pasur on the occasion in question. The consignment in question consisted of 200 pairs of cloth, bundled into a bale; the weight of the bale was 4 maunds. It is in evidence that two or three persons at least would be required to carry away such a heavy bale, and having regard to its weight that evidence is prima facie credible. The Guard examined as P.W. 3 stated that the bale was in the wagon half an hour before the train left Erode Station at 1-42 a.m. on that day; and that when he examined the wagon, he found the same to be properly sealed both on the platform side and on the off-side. He also stated . that there were no foot-boards in the wagon; that the centre bolt of the wagon was about 5 or 5 1/2 feet above ground level; that the train was running at the rate of 17 miles an hour; that the distance between Erode and Pasur was about 10 miles, and that the train did not stop anywhere between these two stations. We gather that the train was not a mixed train, but a goods train. On reaching Pasur, he found that the seals had been tampered with and the bolt had been opened, and found the bale missing; and he at once sent a telegram to Erode Station about the same. There is no evidence that any investigations were made within a reasonable time at the Erode Station. The theory put forward by the Defendants of theft in a running train between Erode and Pasur is unsustainable, and in fact the Trial Court rejected that theory. There are also other circumstances appearing in the Guard's evidence which would make such a theory extremely improbable in the circumstances.
40. The Plaintiffs, fortunately for them, have been able to trace the consignment from Ahmedabad to Erode. They have also been able to elicit various facts from the Guard in charge of the train when examined as P.W. 3. There is absolutely no evidence let in by the Railway Company relating to this part of the case. What is the inference to be drawn in the circumstances? Undoubtedly, the Plaintiff, having had the benefit of the lower rate and having entered into the particular agreement with the Railway Company containing these specified terms, is not entitled to succeed, unless he proved the facts necessary under the agreement to, enable him to succeed.
41. I may mention that in this case if the Plaintiff was not able to prove anything more than that the goods were not delivered to him but were 'lost,' he would not be entitled to succeed in the suit. To make the Railway Company liable under the risk-note in question, mere proof of loss of the, goods would not be enough. The position of the Railway Company under risk-note Form H is different from that of an ordinary bailee under Sections 150, 151, etc., of the Indian Contract Act. It is to save the Railway Company from such liability under Sections 151, 152, etc., of the Indian Contract Act that the Company offered lower rates of. freight to the Plaintiffs and the Plaintiffs in consideration thereof agreed to hold the Railway Company harmless and free from all responsibility for any loss, etc., from any cause whatever, except for losses due to the wilful neglect of the railway administration or to theft by or due to the wilful neglect of its servants, etc. That has been laid down in several cases. See The M. & S.M. Ry. Co., Ltd. v. Nallathambi Chetti, A. Rathnavelu Chetty and Co. : (1927)53MLJ407 , The Bombay Baroda and Central India Railway Co. v. Pratapchand Firm (1924) 48 M.L.J. 400 Secretary of State v. Ghanaya Lal Sri Kiskan (1928) I.L.R. 10 Lah. 329, Durga Dutta v. Secretary of State and Begraj Gadhuram v. East Indian Railway Co. : AIR1928Cal697 . In the present case, which arose prior to 1924, the Plaintiffs 'have, however, been able to trace the progress of their goods from Ahmedabad to Erode and to elicit various facts and circumstances already mentioned.
42. The question as to what is the inference to be drawn from the evidence and circumstances appearing in a particular case is for the Court which has to decide that case. But the Court is entitled to the benefit of the principles laid down by Courts in similar cases and to decisions passed in circumstances more or less the same. In Khairati Lal Baboo Lal v. Bombay Baroda and Central India Railway Co. (1928) 26 A.LJ. 446 a question, more or less similar to the one before us, arose for decision. There, the wagon carrying plaintiff's goods under risk-note Form H was sealed and rivetted, and it arrived at its destination intact, but, owing to the necessities of train management, the wagon had to be kept in a separate yard during the night and on its arrival the next morning at its destination one seal was tampered with and two bales weighing 4 1/2 maunds each were missing. The learned Judges held that it was a legitimate inference that these bales must have been removed either by the railway servants themselves or by trespassers, with the connivance, if not the assistance, of the railway servants,, and, therefore, whichever it was, it was a clear case of misconduct of those in charge of the yard during the night. They observed at page 448 as follows:
If wagons containing goods are kept standing during the night on the company's premises, which are of course adequately lighted, and which are guarded by an adequate supply of watchmen, it is humanly impossible for a bale containing 4i maunds of weight to be stolen from a wagon, removed on to the line, and conveyed across the open space of the company's premises into the public road, by trespassers without the knowledge of those occupied in watching the premises. It is, therefore, to put it at the least, a legitimate inference to be drawn from the disappearance of these heavy articles from the railway premises at Agra during the night that the operation must have been done either by railway servants themselves, or by trespassers with the connivance, if not the assistance, of the railway servants. Whichever it was, it, is a clear case of misconduct of those in charge of the yard during night.
43. In drawing inference in such matters, it is useful to remember what the Court of Appeal said in Smith, Ltd. v. Great Western Railway Co. (1921) 2 K.B. 237 The following observations were made by Scrutton, L.J. at page 251:
In my opinion it is impossible to lay down any general rule as to the facts from which one cart infer in the absence of explanation of loss,
loss by wilful misconduct of the company's servants'. It must depend on the nature of the subject-matter and of the stage of the transit reached in each particular case. For instance, if the company were carrying an elephant and would say nothing as to why it was not delivered; as an elephant can hardly disappear without a company's servant knowing of it, one would easily find that it was lost either by wilful misconduct of the company's servants, or by their wilfully not at once informing some superior that it had disappeared when it could easily be traced and recovered. On the other hand if a small parcel disappeared from a place to which both the company's servants and outsiders had free access, in a time of great pressure of business, it would be impossible to draw any inference as to what had really happened. And there might be many intermediate cases of great complexity and difficulty. In an action by the same goods owner against the Midland Railway Company this Court felt able to find wilful1 misconduct of the company's servants from the fact that part of the contents of a parcel had disappeared, the parcel having been opened, repacked with rubbish, and done up again. In such a case such an operation must have taken some time, and have been carried out on the company's train by a person who could calculate on, being free from disturbance for the considerable time taken in unpacking and repacking, facts which pointed strongly to theft by a servant of the company.
45. We are also referred by the learned advocate for the Respondents toG.I.P. Railway Co. v. Jitan Ram (1923) I.L.R. 2 Pat. 442 at 451 Central India Spinning and Weaving Co. v. G.I.P. Railway (1921) I.L.R. 47 B. 155 and Idris v. E.I. Ry. Co. : AIR1927All348 as cases where similar inference was drawn from facts more or less similar. But, as I already remarked, the inference to be drawn in a particular case would depend upon the evidence of facts and circumstances of that case; no two cases are ordinarily likely to be ad idem as regards the evidence, and, even then, each Court is entitled to draw its own conclusion from the evidence and circumstances before it.
46. Having regard to the evidence in the-present case, such an inference is, I think, more legitimate here. According to the Guard's evidence, the bale in question was in the Goods train wagon just half an hour before the train left Erode. The theory of theft when the train was running is unsustainable, as already discussed. The bale ought therefore to have been removed at the Erode Station itself. Erode Station is a big junction station; and having regard to the heavy weight of the bale in question, it could not have been removed, both from the wagon and from the Station premises, without having attracted the notice of the Railway servants. The inference to which one is naturally led in the circumstances of this case is that the loss of the bale was due to theft by servants of the Company or by strangers with the connivance and knowledge of the Railway servants or that the loss was by reason of wilful neglect of Company's servants.
47. On this finding the decree in favour of the Plaintiffs should be sustained and the Letters Patent Appeal dismissed with costs.