Panchapakesa Ayyar, J.
1. This is an appeal by the Dominion of India, owners of the Madras and Southern Mahratta Railway Administration, now the Southern Railway, represented by the General Manager, Madras, against the judgment and decree of Basheer Ahmed Sayeed, J., confirming the judgment and decree of the City Civil Judge, Madras, granting the respondents, the Madras Handloom Weavers Provincial Co-operative Society, Ltd., damages of Rs. 464 regarding five kegs of hydrosulphate of soda solidified by the water used by the appellant's servants (the fire extinguishing squad) for putting out an accidental fire in a wagon containing 300 kegs of hydrosulphate of soda got by the respondents from Imperial Chemical Industry, Ltd., Bombay, to Salt-Cottars, Madras, for their use.
2. The facts are briefly these : The respondents had ordered for 600 kegs of hydrosulphate of soda from the Imperial Chemical Industry, Limited, Bombay. They were sent to Salt Cottars, Madras, in two waggons of 300 kegs each. When the respondents went to take delivery of the 600 kegs they found that one waggon of 300 kegs had not been affected by fire or water, but that in the other waggon 22 kegs were completely burnt out by the accidental fire, and the contents of five more kegs had become solidified on account of the water used by the appellant's servants to extinguish the fire. The respondents therefore filed the suit, O.S. No. 45 of 1949, in the City Civil Court, Madras, for recovery of Rs. 2,605-12-0 from the appellants towards the value of 27 kegs, viz., the 22 kegs completely burnt out by the fire and five kegs whose contents were solidified by the water used for extinguishing the fire. The City Civil Court considered that there was not even negligence, let alone misconduct, on the part of the Railway Administration regarding the fire or the accidental destruction of the 22 kegs which were burnt out by the fire but that the use of water by the fire extinguishing squad, the servants of the appellants, for putting out the fire, instead using gas or sand, was a negligent act amounting to misconduct and that but for the use of such water the contents of the five kegs would not have got solidified and become useless, and that, since the five kegs and the contents were rendered completely worthless by such misconduct, the appellants would be liable for the value of the contents, viz., Rs. 464 so damaged. It granted a decree for that amount alone with subsequent interest and proportionate costs.
3. The appellant filed an appeal, C.C.C.A. No. 107 of 1951. Basheer Ahmed Sayeed, J., who disposed of the appeal confirmed the finding of the trial Court and held that though the appellants had not been responsible for the fire by any negligence of theirs, let alone misconduct, and had used water to extinguish the fire in all good faith, they had, by error of judgment amounting to misconduct, not used gas or sand, but water. So he held that while they were not responsible, therefore, for the loss of the 22 kegs by fire, they must be held responsible for the spoiling of the contents of the five kegs by solidification by water, as use of water amounted to misconduct. So he confirmed the judgment and decree of the trial Court and directed both parties to bear own costs. Hence this appeal.
4. We have perused the records and heard learned Counsel on both sides. S. S. Ramachandra Ayyar, counsel for the Railway Administration, urged that a mere error of judgment or an act of negligence on the part of the appellants' servants in using water would not do for proving misconduct on the part of the Railway Administration under Section 72 of the Indian Railways Act, and entitle the plaintiffs to damages. He relied on the ruling of the Privy Council in Dwarka Nath v. R.S.N. Co., Ltd A.I.R. 1917 P.C. 173 where it has been held that in a moment of extreme peril and difficulty we cannot expect perfect presence of mind, accurate judgment, and promptitude on the part of persons facing an extremely difficult situation, and that a thing done with want of nerve and skill then should not be made the ground for holding a tort or misconduct to be proved and for awarding damages for any loss caused by such error. That ruling will, in our opinion, apply to the facts of this case. The appellants were faced with an emergency caused by a fire starting suddenly and accidentally in the waggon containing 300 kegs. The railway fire extinguishing squad of 33 persons were rushed to the spot. Obviously there was only one basket of sand and no fire extinguisher, with them. But they did not want to waste time in getting the fire extinguisher and more baskets of sand, as the fire would not wait for them. They used water, readily available there, and extinguished the fire though at the cost of 22 kegs burnt out by fire before it could be extinguished, and the contents of five more kegs being spoilt by the water. We cannot agree with Mr. Rama Prasad Rao, learned Counsel for the plaintiffs-respondents, that both the lower Courts went wrong in not awarding damages for the 22 kegs burnt out by the fire, and that the lower Courts must have held that the use of water spread the fire, instead of extinguishing it and saving 273 kegs, and burnt out 22 kegs, instead of stopping the fire with the burning of 22 kegs and saving 273 kegs intact, though spoiling the contents of five other kegs. We see nothing to warrant this in the evidence on record, expert and non-expert. We accept the findings of both the Courts that it is the use of water which stopped the fire and saved the 231 kegs, incidentally spoiling the contents of five kegs and not also able to prevent the burning out of 22 kegs. The plaintiffs did not file any memorandum of cross-objections either before Basheer Ahmed Sayeed, J., or before us, and cannot be heard to start this new theory and try to make it out. It follows, therefore, that the use of the water, the less desirable method compared to use of gas and sand, was only an error of judgment in an emergency, in an honest attempt to put out the fire quickly and will not amount to misconduct or recklessness and entitle the plaintiffs to claim damages from the appellants. It is a case of one honest party, the plaintiff, being saddled with loss by an accidental fire, claiming the loss from another honest party, the Railway Administration who put out the fire in one of the known ways, thought it was not the best way, owing to some error of judgment and negligence. In the Madras and Southern Mahratta Railway Co., Ltd. v. Sundarjee Kalidas I.L.R.(1933) Cal. 996 a ruling cited by Rama Prasad Rao himself, it has been definitely held that misconduct is not necessarily established by proving even culpable negligence and that it is some thing opposed to accident or negligence, and is the intentional doing of something which the doer knows to be wrong, or which he does recklessly, not caring what the result may be. Here, the Railway Administration did not do anything which it knew to be wrong, or do anything recklessly not caring what the result would be. Nobody even cried out to the fire extinguishing squads of the Railway Administration to use only gas and sand, and not to use water, as it would spread the fire or solidify the contents of the kegs. In Malick Chemical Works v. Union of India (1955) 1 M.L.J. 157 to which one of us was a party, similar principles were enunciated and applied, though it was remarked that misconduct, for the purpose of Section 72 of the Indian Railways Act, need not involve moral turpitude, or wilful desire to cause damage to goods, much less spite towards the owner of the goods.
5. It follows from all this that the judgment and decree of Basheer Ahmed Sayeed, J., confirming the judgment and decree of the City Civil Judge, must be set aside, as not sustainable in law on the general principles enunciated above. So we set them aside, and dismiss the suit, but, in the circumstances, direct all the parties to bear their own costs throughout.