1. This Rule arises out of a suit instituted in the Court of Small Causes at Sealdah. The plaintiff's case was that 214 bags of tobacco were booked from Nepani, an out-station of the Madras and Southern Mahratta Railway, to Shalimar on the Bengal-Nagpur Railway, and that owing to the misconduct and gross negligence of the railway officers 37 of the bags of tobacco were damaged by water. He accordingly claimed damage with interest. The learned Judge of the Court of Small Causes held that the servants of the Railway Company were guilty of gross negligence and that the plaintiff was entitled to the value of the tobacco damaged but not to interest and his claim was decreed in part. Hence this Rule. It is urged that the learned Judge, Small Cause Court, was wrong in applying the law; that he assumed that the responsibility of the Railway Company was the responsibility of a carrier under the Carriers Act; that he wrongly found that the parties were not bound by the Risk-notes executed, and that he had no material whatever on which he came to the conclusion that there had been misconduct on the part of the Railway Administration. When the goods were booked, Risk-notes A, B and C were executed. Risk-note A is executed when articles are tendered for carriage in bad condition or so defectively packed as to be liable to damage, leakage or wastage in transit. In the Risk-note A executed by the parties 214 bags of tobacco were described as 162 new and 52 old, and again in these words.'packing single, 52 bags old, contents damp, liable for wastage, drayage and damage,' in other words they were accepted as already in bad condition and as so defectively packed as to be liable to damage in transit. The learned Small Cause Court Judge refers to Ex. E, a document written when the goods were made over to the Station Master of Chikadi. This document shows that at Chikadi station the goods were received in sound condition.
2. It is argued that this shows that the Risk-note A ought not to have been executed and the consignor was consequently not bound by the agreement in Risk-note A. In my opinion Ex. E merely shows that between Nepani and Chikadi no damage had been caused to the consignment. It does not affect the entry in the risk note that the consignment was liable to damage, leakage or wastage, in other words, defectively packed. I am satisfied that the parties are bound by the agreement in risk note A. Such being the case, the liability of the Railway Company is limited by the terms of the contract which provide that the railway administration shall not be liable for any loss except upon proof that the loss arose from misconduct on the part of the railway administration servants. The burden of proving such misconduct is admittedly upon the plaintiff. The following instances of misconduct were alleged by the plaintiff: (1) that it took six days to carry the consignment to a distance of 600 miles and in so doing the particular wagon had to be attached to 4 different trains. It is suggested that such delay in transit is itself misconduct and it is further suggested that the Railway Company ought to have provided a through train for the purpose. To my mind the delay in question is not unreasonable and is certainly no indication of misconduct. It is pointed out that at Tadapali 23 bags of the consignment were found wet. Yet thereafter all the bags of the consignment were packed together, and when the consignment reached Shalimar 37 bags were found to be wet. It is said that the failure of the Railway Company's servants to separate the wet bags from the dry bags was itself misconduct. Another instance of misconduct is the failure of the Railway Company's servants to place a tarpalin over the flaps of the door of the wagon to prevent water entering and it is suggested that owing to this omission rain entered the wagon and the consignment became damaged.
3. Again it is pointed out that the goods were unloaded in the broad gauge train at 5 p.m. on the same day; that between 1-30 p.m. and 4 p.m. on that day there was rain and the Court is asked to draw the inference that during that period the consignment must have been exposed to rain and the railway servants must have been negligent. There is no evidence as to how the goods were exposed during that period or whether they were exposed. There is no evidence except the fact that 23 bags were found to be wet at Tadapali and 37 bags wet at Shalimar, to show when and how or under what circumstances the bags became damaged. The fact that the bags were damaged may indicate some negligence on the part of the Railway Company's servants, and I have been asked to hold on the authority of the case of B.N. Ry. Co. v. Moolji Sicka & Co., 1930 Cal 815 that misconduct in this connexion is synonymous with mere negligence. The question has been considered again in the case of M. & S.M. Ry. Co. Ltd. v. Sundarjee Kalidas, 1933 Cal 742, in which the learned Judge who decided the case held that:
Misconduct is not necessarily established by proving even culpable negligence. It is something 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.
4. Accepting the definition laid down in the latter ruling I am of opinion that there was no material whatever before the Court to show that the damage was caused by the misconduct of the Railway Company's servants. Such being the case I order that this rule be made absolute, the decree of the Small Cause Court Judge be set aside and the plaintiff's suit dismissed with costs hearing fee of this Rule being assessed at two gold mohurs to be divided between two Railway Companies.