1. This is an appeal by the Secretary of State for India in Council and arises out of an action which was brought by the respondent firm as owner of the goods consigned for compensation against the East Indian Railway Company to whom the goods wore delivered for carriage from Burdwan to Barakar Station of the said railway. It appears that 21 casks of mustard oil were despatched from Burdwan on 27th December 1921 for delivery to the plaintiffs at Barakur. The goods were despatched on a reduced freight and a risk-note in form B was executed. Plaintiffs' case is that the railway company did not deliver six out of 21 casks of oil consigned to thorn and these casks could not be delivered owing to the misconduct of the railway administration or their servants. The plaintiffs claimed Rs. 1,206 as compensation for the loss they sustained.
2. The Secretary of State was made de-fondant 2 to the action as the railway administration of the East Indian Railway Company was taken over by the Government. The defence, which , is material for the purposes of this appeal, is that the defendants are protected from liability under the terms of the new risk-note form B which limits the liability of the railway administration and exonerates them from all liability for any loss, destruction or deterioration of or damage to the consignment from any cause whatever except upon proof that such destruction, deterioration or damage arose from the misconduct of the railway administration's servants. This defence prevailed with the Subordinate Judge who dismissed plaintiffs' action.
3. An appeal was taken to the District Judge of Burdwan who has reversed the decision of the Subordinate Judge and has decreed a substantial part of the plaintiffs' claim.
4. Against this decree of the District Judge the present appeal has been brought and it is contended for the Secretary of State that the decision of the lower appellate Court is vitiated by an erroneous view of the measure of the . railway company's liability as limited by the new risk-note form B and it is said that the learned Judge has relied on decisions which were based on the old risk-note form B. In support of this contention reliance has been placed on the case of B. B. & C. I. Ry. Co. Ltd. v. Rajnagar Spinning, Weaving and . A.I.R. 1930 Bom. 129. In order to consider the soundness or otherwise of this contention it is necessary to state the precise findings of fact arrived at by the learned District Judge. They can best be stated in his own words:
(i) The railway company's case is that the casks were loaded in a wagon the doors of which wore fastened with rivetted tin shackles from Burdwan on 28th December 1924. The wagon reached Barakar late at night on 30th December 1924 with the doors open and the casks missing. The police were informed of the theft but they failed to trace either the goods or the thieves.
(ii). In the present case the misconduct that the plaintiff alleges to have been proved lies in the fact that the doors of the wagon were not locked, but were only fastened on the tin shackles which according to the witnesses examined for the defendant could be hammered away in a minute.
(iii). The fact that there wore tin shackles and not locks facilitated the theft.
(iv). Another fact which seems to have facilitated the theft was that the wagon took two whole days and more to go to the short distance of 76 miles between Burdwan and Barakar. Why it took such a long time has not been explained.
5. On these findings the District Judge was of opinion that the plaintiffs are entitled to compensation.
6. It is argued for the appellant that under the new risk-note form B the Railway Company is not liable except upon proof that the loss is due to the misconduct of the railway company's servants, in other words, except upon proof that the railway company's servants did violate some rules of the company. It is argued on the authority of the Bombay case previously referred to that the word ' misconduct' in the risk-note suggests that a Railway servant has been guilty of doing something which was inconsistent with the conduct required of him by the rules of the company. In the absence of proof, it is argued, that there was any breach of duty in the railway servants or any infringement of the rules which regulate their terms of employment no fair infer-once of misconduct on the part of the railway administration's servants could properly arise.
7. This contention receives support from the decision of Sir Norman Kemp, G. J., and Murphy, J., in the cases of B. B. & C. I. Ry. Co, Ltd. v. Rajnagar Spinning, Weaving and , (1). It is therefore necessary to consider carefully the terms of the new risk-note which came in force from 1st October 1924 and which is supposed to have imposed a further measure of responsibility on the part of the railway administration than was entailed by the previous risk-note form, and to see if the view of the learned Chief Justice of Bombay is the right one.
8. The new risk-note form, in so far as is material, runs as follows:
Whereas the consignment of-tendered by me ~ as per 'Forwading Order' No.-of this date, for despatch by the East Indian Railway Administration to- Station, and for which have received Railway Receipt No.-of same date, is charged at a special reduced rate instead of at the ordinary tariff rate chargeable for such I consignment, -the undersigned do in consideration of such lower charge agree and undertake to hold the said railway administration harmless and free from all responsibility for any loss. destruction or deterioration of or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, detrioration or damage arose from the misconduct of the railway administration's servants; provided that that in the following cases;'
'(a) Nondelivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid down in the tariff or, when there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such nondelivery is not due to accidents to trains or to fire; (b) pilferage from a package or packages forming part of the said consignment properly packed and in (a), when such pilferage is pointed out to the servants of the railway administration on or before delivery, the railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession, control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct but if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.
9. In the present case there being loss of a part of the consignment the proviso would govern the case and by the proviso it is incumbent on the railway administration to disclose how the consignment was dealt with throughout the time it was in the possession and control of the railway company and to give evidence thereof before the consignor is called upon to prove misconduct, but if misconduct on the part of the railway administration or its servants, cannot be fairly inferred from such evidence the burden of proof of such misconduct shall lie upon the consignor.
10. In the case covered by the proviso, as the present case is, it is obligatory on the railway company to disclose in detail how the consignment was dealt with throughout the transit and if the circumstances so disclosed raise an inference of misconduct on the part of either the railway administration or its servants the burden of proving misconduct on the part of the railway company's servants as in the original clause of the risk-note must be taken to have been discharged by the consignor.
11. The learned Judges of the Bombay High Court overlook this that in cases covered by the proviso inference of misconduct even on the part of railway administration as distinguished from those of its servants is sufficient to discharge the burden which lies on the consignor of proving the misconduct of the railway administration's servants. The view 'taken in the Bombay case is that the liability of the railway company must be limited to those cases where the servants of the railway administration have been guilty of the breach of the company but this view seems to me to be inconsistent with the rule that even misconduct of the railway administration where the facts disclosed by the company raise the inference of misconduct of the railway administration as distinguished from the misconduct of its servants would discharge the consignor of the burden which lay on him of showing the misconduct of the servants and seems to be too restricted a view of the company's liability. I do not say that the consignor is not to prove that the loss was due to the misconduct of the company's servants, but the proviso makes it clear that the burden of proving the same is discharged by showing misconduct either of the railway administration or of its servants:
The contract which we have to interpret is a contract between the railway administration and the consignor of the goods, and the misconduct referred to in the risk-note is not such misconduct of the railway servants as may amount to a failure of duty towards their employers but such misconduct on the part of the railway servants or the railway administration itself as amounts to failure of duty towards the consignor.
12. This is the criticizm to which the Bombay view has been subjected, and in my opinion rightly subjected, by James,., in a recent. Patna case : see Bengal Nagpur Railway Company v. Hukum Chanel Hurdutt Roy A.I.R. 1930 Pat. 559.
13. For these reasons I am unable to agree with the learned Judges of the Bombay High Court. If the view of the learned Judges of the Bombay High Court is to be adopted then however lax may have been the rules of the railway administration regarding the care to be taken by them regarding goods on transit they escape liability for there is no misconduct on the part of the servants of the railway in the sense that there has been no breach of any rules or orders of the railway. In the old risk-note form B the company was liable if the loss was due to the wilful neglect of the railway administration or its servants. By the new form it was not intended to restrict the liability but to enlarge the measure of the responsibility of the administration in cases that fall within the proviso.
14. We have now to consider whether the facts found by the District Judge raise an inference of misconduct on the part of railway administration. In the case of B. N. Ry. Co. Ltd. v. Moolji Sicka & Co. : AIR1929Cal654 , I held that in certain circumstances negligence was good evidence of misconduct. In that case it is true biris were damaged by being carried in a wooden-topped wagon through which rain-water filtered, and the use of the wooden-topped wagon was contrary to the rules of the company. I said in that case that the word 'misconduct' covered mismanagement of that kind. A wider meaning has been given to the word 'misconduct' by my learned brother Suhrawardy, J., with whom my learned brother Patterson, J. concurred. In that case Suhrawardy, J. said this:
I am inclined to hold that the word 'misconduct' as used in the new risk-note B is wide-enough to include wrongful commission and omission, intentional or unintentional; any act which it wrongfully did or wrongfully neglected to do, or, to put it in another way, did what it should not have done and did not do what it should have done : see B. N. Ry. Co. Ltd. v. Moolji Sicka & Co. : AIR1930Cal815 ,
and the learned Judge was of opinion that this was the view which I took in the case of B. N. Ry. Co. Ltd. v. Moolji Sicka & Co. : AIR1929Cal654 . The appellant has argued that Suhrawardy and Patterson, JJ. put a wider meaning on the word misconduct.' It is not necessary to consider whether an unintentional omission will amount to 'misconduct' seeing that on the facts found in the present case there was clearly deliberate omission to padlock the wagon and this is sufficient to constitute misconduct on the part of the railway administration. The consignment was loaded in a wagon which was not padlocked and the omission was not accidental but the usual practice was not to padlock and therefore there was deliberate and intentional omission which made the railway company responsible under the old risk-note form : see Karali Prosad Dutta v. E. I. By Co. : AIR1928Cal498 , on the ground that this was misconduct on the part of the railway administration. The word 'misconduct' has been substituted for the words 'wilful neglect or theft' used in the superseded risk-note B but the term covers both.
15. I do not see any reason why this deliberate omission to padlock should not be regarded as misconduct on the part of the railway administration. The findings show that the rivet and the seal could be hammered away in a minute, the train was to stop at every station and Home time for hours and the seal could he tampered with. Then again the learned Judge points out that it has not been explained by the railway company why it took two whole days and more to go the short distance of 72 miles. Under these circumstances I think there was wilful neglect on the part of the railway administration and they cannot escape liability for 'misconduct,' the new form covers a case of wilful neglect. The view that there would be wilful neglect on the part of the railway administration in circumstances resembling the present has been held in the case of Karali Prosad Dutta v. E. I. Ry. Co. (4), already referred to. The consignor having proved misconduct on the part of the administration has discharged the onus of showing misconduct on the part of the railway administration's servants. It seems to me that the risk-note form B imposes a larger measure of responsibility on the railway administration than the old risk-note form. Under the old risk-note form before the trader could recover for any of the goods the burden of proving>in the first instance that the loss sustained arose from the wilful neglect or theft of the railway administration or its servants lay on him.
16. And it appeared that the apparent protection afforded to the trader was rather illusory; it practically gave him no protection at all for it was often impossible for a trader to know what it is that has caused loss of the goods between the time when ha delivered the goods in the hands of the railway company's servants and the time when they ought to have been delivered at the other end of the journey. The explanation of the loss was often within the exclusive knowledge of the railway company and for the trader to be compelled to prove that it was due to the wilful neglect or theft of the railway company's servants was so call upon him to establish something which it was almost impossible for him to prove. None the less that was the burden which the trader undertook under the old risk-note form B. Representations were made for the revision of the old risk-note and as a result of the representation the Governor-General in Council approved the new risk-note form in 1924 and it has, in cases covered by the proviso viz., where there is loss of the entire packages, made it easier for the trader to discharge the initial burden if on the facts disclosed by the railway company misconduct either on the part of the railway administration or its servants could be inferred.
17. For these reasons I would dismiss the appeal with costs.
18. I agree.