K.S. Palaniswami, J.
1. The plaintiff, a firm doing business in dyes and chemicals : with head office at Bombay and a branch at Madras, is the appellant. On 21st March, 1959, the plaintiff's head office at Bombay consigned 12 drums of hydro sulphite of soda to self to Salt Cotaurs, Madras. The consignment was booked at Wadi Bunder at railway risk note. The consignment was loaded in wagon No. SRCS. 4976. The wagon left Wadi Bunder at 9-40 a.m. on 26th March, 1959, and arrived at Kalyan at 1-30 p.m. the same day. The wagon left Kalyan at 9-45 p.m. the same day and arrived at Poona at 2-30 p.m. on 30th March, 1959. There was a break in the journey at Poona so far as the wagon in question was concerned. The wagon was found at 6 a.m. at Poona station yard in front of what is called ' Bombay Goods Shed.' Subsequently it was sent to another line called ' Poona two line.' When the wagon was on this line, fire broke at about 8 p.m. on 31st March, 1959. The railway officials at Poona took action to put out the fire, but nothing could be salvaged in proper condition so far as the plaintiff's goods were concerned. Correspondence passed between the parties and ultimately the plaintiff laid the suit on 1st May, 1960, alleging that the loss of the goods was due to the misconduct and gross negligence on the part of the servants of the railway and that due care and caution in handling the goods had not been bestowed. A sum of Rs. 6,048 was claimed as the value of the goods from the Union of India owning the Southern Railway impleaded as the first defendant and the Union of India, owners of the Central Railway impleaded as the second defendant.
2. The defendants contended that the Enquiry Committee which went into the cause of the accident found that the accident was due to causes beyond the control of the Railway Administration, that there was neither negligence or misconduct on the part of the railway or its servants, that all necessary care and caution were bestowed in carrying the goods and that the plaintiff was not entitled to any relief.
3. The trial Court found that the fire was due to some accidental cause for which the railway was not responsible. On the question of value, the trial Court found that the amount as claimed by the plaintiff was correct. In the result, the suit was dismissed.
4. The Indian Railways Act (IX of 1890) has undergone several changes from time to time. Substantial changes were made by the Amending Act LVI of 1949, which came into force on 1st August, 1950. There were several subsequent amending Acts which also made substantial changes. But, for the purpose of this case it is unnecessary to refer to the changes made after 1959, as the consignment in question was in the year 1959. All that is necessary to bear in mind is the position of the Act as it stood at that time. Section 59 (1) states that no person shall be entitled to take with him, or to require a Railway Administration to cany, any dangerous or offensive goods upon railway. Section 47 confers power upon the Railway Administration and the Government to make rules. Clause (c) of Sub-section (1) of that section empowers the making of rules for declaring what shall be deemed to be, for the purposes of the Act dangerous or offensive goods, and for regulating-the carriage of such good. In exercise of such power, rules have been made with regard to dangerous and offensive goods. Such rules are compendiously called ' Red Tariff No. 17 ' a copy of which has been marked as Exhibit B-11 in this case. We shall presently advert to the relevant provisions. The Act provides for payment of tariff at two rates, ordinary tariff rate which is called railway risk rate and special reduced rate called the owner's risk rate. The rate at which tariff is paid has an important bearing on the question of burden of proof in a case for recovery of damages against the railway for loss, destruction, deterioration or damage to the goods. Sub-section (1) of Section 72, as it then stood, inter alia states that the responsibility of a Railway Administration for the loss, destruction, deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. Section 72 had a Sub-section (2) which was deleted by the Amending Act LVI of 1949 to which we shall have occasion to refer in due course. By that amending Act new Sections 74-A to 74-B were added replacing certain forms which were called risk notes containing terms subject to which goods were to be consigned. In the case of goods consigned under the owner's risk, the Railway Administration is not responsible for any loss, destruction or deterioration or damage to goods from any cause whatsoever except upon proof that such loss, destruction or ceterioration or damage was due to negligence or misconduct on the part of the Railway Administration or any of its servants. In the case of consignment' of goods under railway risk rate, it is not for the consignor suing for damages to prove either negligence or misconduct on the part of the Railway Administration or its servants. In such a case, if the consignor or consignee suing to recover damages proves either non-delivery or damage, it is for the railway to prove that they have exercised the care required of a bailee as laid down in the Indian Contract-Act, 1872. Vide Mankuram v. Indian Midland Railway Co. : AIR1924All254 . It is the duty of the railway to place all material evidence to find out whether it acted in conformity with the relevant provisions of the Contract Act dealing with the duties of bailee, and in such a case, it is incumbent upon the plaintiff to make out that there was want of care or that there was negligence on the part of the railway authorities or their servants or agents. Pushraj Thanmul v. Union of India : AIR1960Cal458 . But it is, however, not the duty of the plaintiff to prove how the delay, loss, destruction, deterioration or damage was caused.
5. In this case, the consignment of the plaintiff's goods was sent under railway risk rate. Vide Exhibit A-1, copy of the goods invoice receipt. It is, therefore, incumbent upon the railway to prove that as a bailee it took the necessary amount of care in dealing with the goods both at the time of loading and at the time of transit of the wagon carrying the goods. The case of the plaintiff is that the railway servants failed in their duty as required under the Red Tariff with regard to the loading and handing of the goods in the course of its transit. The case is put this way:
1. Goods which should not be put together in the same wagon were put in the same wagon contrary to the provisions in the Red Tariff;
2. The precautions which should be observed in the case of the wagon carrying explosives and dangerous goods were not taken; and
3. The wagon was not handled with that amount of care and caution which should be normally exercised in handling a wagon carrying explosive and dangerous goods. The evidence on these aspects may be examined.
6. Rule 61 of the Red Tariff defines dangerous goods as including among other things corrosive and poisonous chemicals. The Red Tariff classifies dangerous goods under several schedules. Rule 63 of the Red Tariff says shat the dangerous goods specified in Schedules II, III, IV, V and special shall only be accepted for conveyance by rail or be conveyed by rail subject to regulations and in accordance with the conditions set forth therein against each specified class of goods. The schedules lay down the general classification, packing conditions and conditions of carriage against each class of goods specified therein. Dangerous, corrosive and poisonous chemicals are classified under Schedule III. Rule 102 classifies dangerous, corrosive and poisonous chemicals into six categories and it lays down that the goods so classified should be labelled by the senders with the special labels prescribed for the traffic according to the letters shown against each article. Loading regulations are indicated as regards goods so labelled and lettered under Rule 102. The letters are from A to F. Rule 72 states that dangerous goods must not be loaded in the same vehicle as explosives and also should not be loaded in the same vehicle as ordinary goods. Rule 77 prescribes the affixing of a label called ' dangerous label ' containing the prescribed information on the wagon containing dangerous goods and also requires that the vehicle should be kept locked and sealed and that the key of the lock should be retained by the military escort when accompanying a van and that if no military escort travels, the key must be handed over to the guard at the starting station who, in turn, must hand it over to the Station Master at the destination.
7. The plaintiff's 12 drums of hydro sulphite of soda were loaded in wagon No. SRGC. 4976 along with several other items, all of them together numbering 92 items. Exhibit B-4 is the tranship summary in Form I containing the description of the packages, weight etc. Including the plaintiff's consignment, there were 39 drums of hydro sulphate of soda, 8 drums of insecticides, 20 drums of ferric chloride 20 cases of chloride of potash, two kgs. (small barrel) of aniline salt and three drums of aresenic powder. The code ' c/s ' denotes cases whereas the code ' d/s ' denotes drums. The case of the plaintiff is, the loading of those several items in the same wagon is in violation of the Red Tariff. To substantiate this contention, the plaintiff examined Sri A. Srinivasan, P.W. 3, a senior lecturer, Chemistry Department in the Loyola College, Madras with 17 years of experience. The evidence of the lecturer establishes the following facts. Potassium chlorate decomposes on heat, giving out oxygen and producing heat and one molecule when it decomposes will give 16 kilo calories of heat. Spontaneous explosion of its substance is not uncommon. One of the primary uses of potassium chlorate is for explosives. It is susceptible to hear and when it decomposes on break down it produces heat. Chlorate in combination with combustible of all types constitutes a serious fire and explosion hazard. Hydro sulphite is a powerful reducing agent i.e., it takes oxygen and it contains sulphur, sodium and oxygen, which are combustible and inflammable. If potassium chlorate and hydro sulphate are kept in a sealed water-tight wagon, any shock or jerk would cause friction and heat in potassium chlorate and that will be responsible for the explosion. If potassium chlorate is packed in wooden case, there is greater danger from explosion on account of tumbling and friction. Hydro sulphate is both combustible and inflammable. Arsenic is a reducer and ferric chloride is an oxydizer. The foregoing evidence of P.W. 3 was not seriously challenged in cross-examination. He was not asked to explain what the expressions ' inflammable' and ' combustible' mean. The dictionary meaning of ' inflammable ' is capable of being inflamed or set on fire, susceptible of combustion, easily set on fire.' The word ' combustible ' means ' capable of being burnt or consumed by fire '; fit for burning; burnable, inflammable '...vide Oxford New English Dictionary.
8. Chlorate of Potash finds a place in Schedule III at page 106 of Exhibit B-11, the Red Tariff. It should bear special labelling D. Col. 4 indicates the general packing regulations. Column 5 contains instructions as regards supplementary packing, transport, loading and unloading regulations. As against chlorate of potash it is stated that it must not be loaded in the same vehicle with combustible materials. The evidence of P.W. 3, which remains unchallenged shows that hydero sulphate is both combustible and inflammable. Hydro sulphate of soda finds a place in Schedule III at page No. No special labelling is indicated against it. But in column 5 dealing with supplementary regulations it is stated that the substance must not be loaded in the same wagon with explosives. Potassium chlorate is an explosive. Thus by loading chlorate of potash and hydro sulphate in the same wagon the mandatory provision of the Red Tariff was violated.
9. Arsenic should bear the lable A and it is dealt with at page 105 of Exhibit B-11. As against label A it is indicated at page 91 that it is undesirable that this should be loaded in the same wagon with explosives. The evidence of P.W. 3 establishes that potassium chlorate is an explosive. Therefore, by placing arsenic and potassium chlorate in the same wagon, the direction of the Red Tariff was violated.
10. Ferric chloride referred to in page 101 of Schedule III should bear the lable B. In page 91 it is stated that in the case of goods bearing label B it is undesirable that it should be loaded in the same wagon with explosives. By loading ferric chloride with potash of chlorate, which is explosive, she above provision was violated.
11. Aniline salt should bear the label C. vide page 108 of Exhibit B-11. In column 5 it is stated that aniline salt is poisonous and it also stains pine wood and some kinds of paper yellow and gives off vapours which produce a similar effect and packages containing this chemical must be kept quite apart from other goods. There is no evidence to show that his supplementary regulation was observed. Aniline salt which should bear the label C, must not in any circumstances be loaded in the same wagon with many other things, wood, or fibreboard packages...vide page 92. It has already been seen that among the several items loaded in the wagon as given in Exhibit B-4, some were cases which refer to wooden cases in contrast with drums. Thus by loading aniline salt in the same wagon containing wooden packages the instructions given in the Red Tariff were violated.
12. The Red Tariff refers to insecticides only in liquid condition. Our attention has not been drawn to any provision in the Red Tariff dealing with insecticides in a solid or power condition. From Exhibit B-4 it is seen that some cases of insecticides were included in the consignment. It is admitted by D.W. 2 that insecticides were in the form of powder. Such a commodity is not classified as explosives or dangerous goods under the Red Tariff. It should be taken as falling under the category of ' other goods.' Loading dangerous and explosive goods with other goods is prohibited by Rule 72.
13. D.W. 1 was the loading clerk at Wadi Bunder at the relevant time. He speaks about the forwarding note Exhibit B-1, and says that it was he who received the goods and weighed. He says that the goods must be acceptable goods under the Red Tariff and after they are found to be acceptable. the rubber stamp 'open' would be stamped on the forwarding note. By this evidence it was sought to be made out that the goods that were loaded in the wagon in question were found to be acceptable. But in cross-examination he admits that he is only a weighing clerk, that only on the orders of the Special Officer the former would accept the goods and that the officer accepting the goods for booking is a different person. Neither the Special Officer, upon whose orders D.W. 1 accepted the goods, nor the officer accepting the goods for booking was examined to show why the goods which should not have been put together were loaded in the same wagon. The plaintiff was not given an opportunity to cross-examine those officials and it cannot therefore be said that the railway administration has placed all the materials relevant to find out whether necessary care and caution were exercised in the matter of loading.
14. D.W. 2 was the loading clerk in charge of dangerous goods shed in Wadi Bunder in 1959, and it was he who loaded the consignments in wagon SRCG 4978, as per tranship summary, Exhibit B-4. It was not he on whose orders D.W. 1 weighed. The evidence of D.W. 2 is that dangerous and poisonous goods which were not combustible were loaded in the wagon. He is hardly competent to speak on that aspect, in view of his admission that whatever is given to him he would load. Admittedly it is not his duty to ascertain what goods are to be loaded and what should not be loaded in the same wagon. The learned Counsel for the railways contended that no adverse inference should be drawn against the railways on account of the non-examination of the officials referred to by D.W. 1 and in support of that argument, reliance was placed upon the decision of the Patna High Court in Union of India v. Jethabhai : AIR1953Pat279 . In that case, the question arose whether an adverse inference should be drawn against the railway on account of the non-examination of a railway guard with regard to an accident. The evidence in that case established that the Guard would not be in a position to say anything more than what the other witnesses examined in the case had stated. It was therefore, held that no adverse inference could be drawn against the railway on account of the non-examination of the guard. But that is not the position obtaining in the instant case, for neither D.W. 1 nor D.W. 2 is in a position to say why goods which ought not to have been placed together were placed together and we do not know for what reason the officials charged with a particular duty put in the same wagon the said goods contrary to the provisions of the Red Tariff.
15. The Red Tariff prescribes certain rules, i.e., important precautionary measures to be followed after the explosive and dangerous goods are loaded in the wagon. Rule 77 inter alia enjoins that a label called 'dangerous' label, i.e., a white label with a red cross on it, shall be affixed to both sides of every vehicle in which dangerous goods are stored for despatch or delivery. It also lays down that such a vehicle in transit should always be kept locked and sealed, locks being provided by the defence services. Sub-rule 3 of that rule says that the keys will be retained by the military escort when accompanying the van and that if no military escort travels, the keys must be handed over to the Guard at the starting station who, in turn must hand it over to the concerned station masters at the respective stations. The evidence in this case establishes that this rule was more honoured in breach than observance.
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16. Admittedly, the wagon in question was not locked as required under Rule 77. It has already been noticed that according to that rule lock should be provided by the defence services. It is contended for the defendants that this provision regarding locking arises only if dangerous, or explosive goods belonging to the military were carried and that in the case of private individuals there is no provision for locking the wagon. This argument is not acceptable. In the Red Tariff there are special and additional provisions for the carriage of explosive and other dangerous goods for the defence services. It is obvious that Rule 77 so far as it relates to locking is not applicable to the carriage of explosive and other dangerous goods for defence services. No explanation has been given on behalf of the defendants as to why the provision for locking is found in regard to the carriage of dangerous and other explosive goods given for consignment by private individuals.
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17. From the foregoing discussion, we come to the following conclusions. In the matter of loading the consignments in the wagon in question, specific rules in the Red Tariff were violated. After the goods were loaded, the necessary precautions of affixing the prescribed label and locking the wagon were not taken. The wagon was handled at Poona Station yard in a negligent way and was being shunted from line to line and there was loose shunting. All these are the causes for the fire and explosion.
18. On behalf of the defendants strong reliance is placed upon the decision of Panchapakesa, Aiyar, J., in Malik Chemical Works v. Union of India : AIR1953Pat279 , in support of the arguments that even if the servants of the railway had committed mistakes in omitting to affix the necessary labels and failing the conform to certain rules regarding loading there is no ground to level a charge of negligence or misconduct. That was a case where goods consisting of turpentine drums were carried at owner's risk. The evidence established that the drums were defectively packed, the goods clerk at the starting station failed to affix the dangerous label. He also negligently omitted to describe the goods as turpentine drums and dangerous goods. The turpentine drums were allowed to be loaded in a wagon having zinc sheets as its roof instead of iron cover roofing as required by the rules. When there was fire in the wagon the porters at the station yard attempted to put out the fire by pouring water as a result of which the flames leaped up and prevented salvage of drums which were not affected. On the particular facts of the case and on the evidence adduced under the circumstances of the case the learned Judge held that the plaintiff had failed to prove that the fire broke out on account of such recklessness or gross negligence as amounting to misconduct. The facts of that case are easily distinguishable; the reasonings in that case are not of much relevance to the instant case The important distinguishing feature is that the goods were carried at the owner's risk in that case. We are not inclined to regard that case as authority for a general proposition of law that failure to affix labels marked ' dangerous ' would not amount to gross negligence amounting to misconduct on the part of the railway, however serious the violation of the rules may be. In the case of explosive goods failure to affix such labels will have to be viewed differently and the established facts would certainly amount to gross negligence amounting to misconduct. Any fact in isolation may not by itself amount to misconduct. The inference as to misconduct should be drawn on ' he commulative effect of the several acts of omission and commission all of which if taken together would in particular context undoubtedly reveal reckless conduct which can properly be regarded as misconduct. The fact that the goods were carried at owner's risk rate does not mean that the railway is at liberty to deal with the goods in any way it may suit the whim and fancy of its employees and in flagrant violation of the relevant rules. The mere non-observance of several rules is not always negligence but is misconduct.
19. Roshan Umar Karim v. M.S.M. Railway Co. Ltd. (1936) 70 M.L.J. 698 Tippanna v. Southern Mahratta Railway Co. I.L.R.(1893) Bom. 417, Firm Wagid Ali v. B. and N.W. Railway : AIR1941All164 , and Ardeshir v. Agent G.I.P. Railway 54 M.L.J. 167 : L.R. 55 IndAp 67 : A.I.R. 1928 P.C. 24 on which reliance are placed are cases in which the goods were carried at owner's risk rate. Therefore, those decisions are hardly applicable to the facts of the instant case.
20. Almost at the conclusion of his argument Mr. Ratan appearing for the defendants took up a new position to the effect that under the terms of the forwarding note, Exhibit B-1, a special contract was agreed to between the plaintiff and the railways whereby the railways are absolved of liability. The written statement is silent on his aspect. Such a contention does not appear to have been put forward before the trial Court also. For these reasons, the belated argument is liable to be discountenanced. Inasmuch as this contention raised a question of law, we allowed it to be argued. Section 59 of the Railways Act no doubt says that no person shall be entitled to require a railway administration to carry any dangerous or offensive goods upon a railway. We have already pointed out that necessary rules have been framed for carrying of dangerous and offensive goods by the railway and if a person tenders such goods conforming to the rules and regulations, it would be he duty of the railway to accept the consignment and carry them according to the terms agreed upon. In Exhibit B-1, signed by the plaintiff-company the relevant portion on which reliance is placed reads thus:
I further declare that I accept responsibility for any consequences to the property of the aforesaid railway administration or to the property of o her persons entrusted or to be entrusted to the railway administration for conveyance or otherwise which may be caused by he explosion of or otherwise by the said consignment and that all risk and responsibility whether to he railway administration to their servants or agents or to others remain solely and entirely with me.
21. Relying upon the above agreement it is contended for the defendants that even if she servants of the railway were negligent in handling the plaintiff's goods, he plaintiff cannot seek to hold the railway liable. To show that such an agreement is valid, reliance was placed upon the following passage in Halsbury's Laws of England, 3rd edition Volume 4, at page 171:
A consignor of goods, whether he sends them by private or by common carrier, impliedly warrants hat the goods are fit to be carried in the ordinary way and are not dangerous unless by notice or otherwise the carrier when he accepts the goods for carriage, is aware that they are dangerous; and the consignor is liable for all damage hat may result from the breach of the implied warrantly, whether or not he himself knew or ought to have known that the goods were in fact dangerous unless liability for the breach is excluded by the express terms of the contract.
The goods which are regarded as dangerous for the purposes of the implied warrantly include not only hose which may be dangerous to life and limb, but also those which may do damage to the carrier's vehicle or property or to other goods being carried.
22. In our opinion, the above passage does not entitle the railway to contend that the consignor is not entitled to relief even if he proves that in handling the goods the employees of the carrier were negligent and guilty of misconduct. Section 72 of the Act prior to the Amending Act (XLIV of 1949), contained Sub-section (2) which ran as follows:
An agreement purporting to limit that responsibility shall in so far as it purports to affect such limitation, be void unless it (a) is in writing signed by or on behalf of the person sending or delivering to the railway administration he animals or goods and (b) is otherwise in a form approved by the Central Government.
23. It was by virtue of this provision that some forms of risk notes came to be used to limit the liability of the railway. It is to do away with use of these forms and to take away the right of the railway administration to limit its liability that the Legislature omitted Sub-section (2) and introduced statutory provisions expressly laying down the rights and liabilities of he consignor and the railway. The decision in Erachshow v. Dominion of India A.I.R. 1955 M.B. 70, on which reliance was placed on behalf of the defendants is not applicable to this case. That is a case where risk note G as provided in Section 72 (2), was executed by the consignor under which he limited the liability of the railway and undertook to pay tariff at the reduced rate. It was held that by virtue of the said risk note the liability of the railway was limited to the conditions contained in the risk note. In Sheik Mohamed Ravurthor v. British India Steam Navigallon Co. Ltd. 18 M.L.J. 497 : I.L.R.(1909) Mad. 95, the question considered was whether it was open to a ship-owner to protect himself by a special provision in the contract absolving him from liability for the negligence of himself and his servants. On the analogy of the English Law, it was held that the ship-owner could do so. That decision is hardly applicable to the facts of the instant case which is governed by the provisions of the statute which prescribes the extent of he liability of the railway as a bailee. Reliance was next placed on behalf of the defendants on the decision in Madras and Southern Mahratta Railway Co. Ltd. v. Matti Subba Rao : (1920)38MLJ360 , it is pointed out that under Section 72 (2) of the Act it is open to the railway company to enter into an agreement to limit its responsibility provided it is in a form approved by the Government. It is by virtue of that provision it was held in that case that it was open to the railway to enter into a contract limiting its liability. That decision is also not applicable to the facts of the case on hand, for at the time when the consignment in question was loaded, the railway had no authority to stipulate limiting its responsibility in the manner contended by its learned Counsel.
24. Sub-section (1) of Section 72 inter alia enacts that the liability of the railway administration is that of a bailee. The railway administration is, therefore, bound to take as much care of the goods as a man of ordinary prudence would take under similar circumstances. Mr. Ratan, learned Counsel for the railway raised a further contention on the terms of the risk note in the instant case. Under this risk note the plaintiff-firm has undertaken to be liable to the railway for any damage that may accrue to the property of the railway or to the properties of others. From this it is argued that by necessary implication the plaintiff has agreed to absolve the railway from any claim for damages in the event of the loss of the plaintiff's goods. We are unable to accept this contention. Under this clause the railway has stipulated that the consignor would be responsible to the railway or to any third party if any loss or damage should be caused to the property of the railway or to the third party concerned consequent upon the explosion of the goods of the consignor in the course of conveyance. This covenant is for payment of compensation or reimbursement to the railway in a particular contingency. It has nothing to do with the liability of the railway for the loss of the goods.
25. We have no doubt in holding that the employees of the railway had disregarded several crucial mandatory provisions contained in Red Tariff relating to the carriage of dangerous and explosive goods, that the fire which destroyed the goods of the plaintiff was solely due to the misconduct of the servants of the railway that the railway failed to discharge its duty as a bailee and that the plaintiff is entitled to recover from the railway the value of its goods. The parties are not at controversy as regards the value of the plaintiff's goods which is Rs. 6,048. In the result, the appeal is allowed and the suit is decreed with costs throughout. Time for payment two months.