1. This Rule has been obtained by defendant 1. The plaintiff has obtained damages with regard to five consignments of fish. They arrived at their destination at Asansol eight hours late. They had to be transhipped at Mokamah Ghat station. The train arrived late at that station. This was due to the fact that it was detained for 33 minutes at an earlier station in Order to attach a saloon in which his Highness the Maharajah of Nepal was travelling. Even so the connecting train had not left Mokamah Ghat: but these consignments of fish were not put on board it and they were actually sent by the next train which arrived eight hours later. It is impossible to deal with all the five consignments on the same basis. The two consignments covered by P. W. B. 5625 and 9221 were also covered by Risk Note 'h.' The plaintiff therefore cannot recover, unless he proves misconduct by some servant of the railway.
2. The learned Judge found misconduct with regard to two matters. 'Firstly, in the detention of the train in Order that the saloon of the Maharajah might be attached to it and secondly, in the failure of the clerk at the Mokamah Ghat to tranship the consignments within time. I find it rather hard to follow the judgment of the learned Judge on the e first point. Mr. Das explains that his case really is that a train cannot be detained for more than 10 minutes in Order to allow connexion with another train which is running late and that the station master was therefore guilty of misconduct in detaining this train over 33 minutes. The detention was actually made under orders of the Traffic Manager who had given instructions that the saloon of the Maharajah was to be attached to this particular train. Now the plaintiff gave no evidence whatsoever to establish that there were any rules forbidding the detention of a train for more than 10 minutes. Mr. Das has merely to rely upon a statement made in cross-examination by the guard D. W. 10. He merely says: 'The authorized time for detention of a train is 10 minutes.' He does not explain what he means by the term 'authorized.' The most that he can possibly mean is that a station master is not entitled to detain trains for this purpose for more than ten minutes. Oral evidence of this kind, of course, is quite useless. There is nothing to show that the Traffic Manager was guilty of misconduct in giving the Order which he did. Then in the second place, there is a finding of the learned Judge that this particular misconduct, if it be misconduct, was not the cause of the damage to the plaintiff's fish.
3. The finding of the Judge on the second point is that if the clerk had engaged more coolies, the consignments of fish would have been put on the connected train at Mokamah Ghat. On this point the learned Judge relies upon certain observations made in the judgment of Suhrawardy and Patterson JJ. in B. N. Ry. Co. v. Moolji Sicka & Co. : AIR1930Cal815 . There the proposition is so broadly stated that if it is to be accepted in full, the liability of the Railway Company is exactly the same whether a risk note is executed or not. The true position was pointed out in Banwari Lal Jagannath v. B. B. & C. I. Ry. Co. : AIR1936Cal24 . The same principle was followed by Lodge J. in M. & S. M. Ry. Co., Ltd. v. Ravi Singh Dip Singh &Co.; : AIR1935Cal811 . It is quite impossible to hold that on the findings of the learned Judge there was any misconduct on the part of any servant of the petitioner.
4. With regard to the other three consignments there is a disputed question of fact whether any risk note was executed or not. The petitioner failed to put these alleged risk notes into evidence. He relies on the fact that the letter H is endorsed on the railway receipts and that the goods were booked at the lower rate. The only direct evidence is to bo found in the deposition of the station master D. w. 1. His evidence in chief really supported the plaintiff because he stated that the reduced rate was charged, not because any risk note was signed, but because the goods were perishable. There was however some clumsy cross-examination by which it was elicited that there were risk notes. Now if it is a matter of evidence, it is for the Judge of fact to say whether he is satisfied from it that the risk notes were actually executed. Mr. Das of course relies strongly upon the fact that they have not been produced. In the present case the learned Judge is not satisfied that the petitioner has proved that these consignments were covered by the risk notes. On the actual evidence on the record, it would be impossible to say that the Judge of fact was unreasonable whichever view he took of it. As it has been found that no risk note was executed in this case, the petitioner would be entitled to claim that the balance of the freight should be deducted from the damages.
5. Dr. Basak, however, contended that this is not really a matter of evidence at all. The petitioner is entitled to succeed when once he has proved that the existence of a risk note is endorsed on the railway receipt and that the goods were carried at the lower rate. For this proposition he relies upon the decision of Chotzner J., in E.I. Rly. Co., Ltd. v. Ram Chabila Prasad : AIR1925Cal915 . With great respect to that learned Judge, I find it rather difficult to follow his judgment. It might proceed either upon the basis that the matters referred to are conclusive proof that the risk note was executed or upon the basis that the railway receipt forms the contract between the parties. It appears to me that the learned Judge intended to base his decision apon the latter finding. He certainly does not say that it is a matter of conclusive proof. Dr. Basak entirely failed to persuade me that there is any authority or principle on which I could so hold, and the most that can be said is that it is a matter of evidence.
6. The question, therefore, remains whether this receipt contains the terms of the contract. It has been placed before me and it contains no terms whatsoever. It is merely evidence to show that certain goods were placed in the custody of the railway and that a certain sum was paid as freight. If the con- tract is contained in the railway receipt, the railway authorities would obviously not be justified in realising further money when the freight has been wrongly calculated. But even supposing that the railway receipt did contain the terms of the contract, it does not contain anything about the risk note. This is added in writing by the booking clerk. It would have to be proved that the consignor knew the meaning of the hieroglyphic 'H' and that he accepted it as part of the contract. If this was so, it would really be unnecessary to execute the risk note at all. I have no hesitation in overruling the con- tention of the petitioner on this point. The case is therefore governed by Sections 151 and 152, Contract Act. In my judgment the learned Judge dealt with the ease properly on that footing. The bailee is bound to take as much care of the goods as a man of ordinary prudence would take of his own goods under similar conditions. The finding of the Judge is that there was plenty of time to transfer the fish to the connected train. There can be no doubt whatever that, if the goods had belonged to the clerk himself, he would have taken very good care to tranship these perishable articles first. That, however, is not ., sufficient to dispose of the matter. It is further necessary for the plaintiff to prove that the damage to the fish was due to the delay at the Mokamah Ghat station. The learned Judge has not dealt with this aspect of the case at all. This may in part be due to the inconsistent pleading of the petitioner. At the trial the petitioner put forward a story that the fish was in splendid condition when it arrived and that no damage was caused at all. The learned Judge was so busy in disbelieving this story that he neglected to deal with the further point as to the cause of the damage.
7. Mr. Das relied upon some circumstantial evidence. In the first place a risk note A was not demanded from the consignor by the station master. This, if unexplained, would justify an inference that the fish was not rotten when it was actually consigned. But this would not carry the plaintiff very far in proving this point. The other thing upon which Mr. Das relies is the price fetched at the sale. That of course is one of the factors which has to be taken into account; but if I were dealing with the matter myself, I should not think that it went very far in proving the cause of the damage. On the other hand, there was some very strong evidence in favour of the petitioner. The plaintiff's claim with regard to another consignment automatically failed, because there was no delay on the journey and there was nothing upon which any claim against the petitioner could be established. It was therefore conclusively shown with regard to this consignment that the damage to the fish had nothing whatever to do with any conduct of the railway authorities. Then in the second place, D. W. 13 proved that other fish despatched from the same station was in quite good condition when it arrived at Howrah still later.
8. The plain fact of the matter is that the plaintiff was really trying to make out a case of res ipsa loquiter. That of course was quite hopeless. Paragraph 10 of the written statement gave him due notice that the petitioner's case was that any damage which might have been caused was not due to the failure of the consignment to catch the first available train. The evidence actually on the record is far stronger for the petitioner than for the plaintiff. If I were to remand the case on the present evidence, the learned Judge would not really be justified in coming to a finding in favour of the plaintiff. I am certainly not prepared to give the plaintiff an opportunity to produce any further evidence. At the trial some frivolous defences were taken by the petitioner; I shall therefore not allow him any costs in that Court. The Rule is made absolute, the decree of the lower Court is set aside and the suit is dismissed. The plaintiff will pay the costs of the petitioner in this Court-hearing fee, two gold mohurs. Each party to bear his own costs in the lower Court. I have already observed that in view of the finding that there were no risk notes, the petitioner will be entitled to charge the full freight on the consignments covered by P. W. B. 5622, 5626 and 5628. This will be deducted from the price fetched at the auction and the balance will be paid to the plaintiff.