1. This Rule is on behalf of the plaintiff whose claim for damages against the B.N. Ry. Co. has been dismissed by the learned Small Cause Court Judge of Sealdah. The plaintiff is a dealer in biri. His agent booked consignments of Biri leaves from Amgaon to Shalimar under invoice No. 16 dated 17th September 1930 and from Gondia to the same station under invoice No. 47 dated 28th October 1930. On arrival of the goods at Shalimar it was found that 8 bags of the first and 6 bags of the second consignment had been damaged by wettage. The railway officers estimated without prejudice the damage at 20 per cent and the plaintiff took delivery. The plaintiff has now claimed damages. For both the consignments the plaintiff's agent executed risk notes in Form B approved by the Governor-General in Council which would make the Railway Administration liable for 'loss, destruction, deterioration or damage' only if the plaintiff proved misconduct on the part of the Railway Administration's servants. For the consignment booked from Amgaon the plaintiff's agent also executed a risk note in Form A, the goods being not packed according to the requirements of the defendant, namely they were not packed in double gunny bags of the required quality.
2. In the plaint the plaintiff made specific allegations that the goods had been damaged by the undue delay in transit and by the carriage in non-waterproof wagons with wooden roofs. In one paragraph of the plaint however there is a general statement that the Railway Company's servants had been guilty of negligence and misconduct, no particulars being given. The defendant Company ought to have asked for particulars about the misconduct pleaded which they neglected to do. The learned Small Cause Court Judge has recorded findings to the effect that there was no undue delay in transit and that it was not proved that the wagons which according to the admission of the defendant company had corrugated iron roofs, were defective. He also held that the plaintiff had failed to prove wilful neglect on the part of the Railway company's servants. How the last finding is material I fail to see. The form of risk note B was amended in 1924, when the word misconduct was substituted for the words wilful neglect. He did not record an express finding on the question as to whether there was any misconduct on the part of the Railway company's servants. He however found that the Railway company had proved satisfactorily that its servants had taken due care and precaution in respect of the consignments and that damages that occurred cannot be attributed to any neglect on their part.
3. One would have thought that after the said findings it was a bold step for the plaintiff to move further in the matter. Realising, that he could not further hope to succeed on the specific allegations made in the plaint, the plaintiff turns round and presents his case on a new line altogether, which has only been rendered possible by the Railway company neglecting to ask for particulars about the misconduct pleaded. He says now that the servants of the Railway Administration had been guilty of breach of standing orders and points out two of them to be found in Ex. 4. The first is that during the monsoon (which according to the instructions of the Railway company is to be taken to last from June to December) goods liable to damage are not to be loaded against the sides of flap doors of wagons but well away and the second is that wagons with corrugated iron roof should not be loaded with damageable commodities and urges that breach of standing orders by itself is misconduct. As I have stated that on the plaint this case the defendant opposite party was not called upon to meet, but I would not rest my judgment on the said ground. Assuming that mere breach of standing orders would amount to misconduct, for which there is some authority, see Secy of State, v. Dhokahual 1931 Cal 734 and B.N.Ry. v. Moolji Sicca 1932 Cal 70, the findings of the learned Small Cause Court Judge exclude the case of misconduct. It is not necessary for me in this case to define, the word misconduct or to decided if there is a distinction between misconduct as used in Risk note B in currency in India and the ward 'wilful misconduct used in England in such cases. On this point there is a divergence of opinion: see B.N. Ry. Co. v. Moolji Sicca 1930 Cal 815 and M.S.M. Ry. Co. v. Sunderjee 1933 Cal 742.
4. In India, the liability of a Railway Administration is not that of a common carrier. It is not an insurer. Its liability is that of a bailee as defined in the Contract Act. If there is no negligence there is no liability. Whatever the term misconduct may simply, it is quite apparent from a comparison of Clause (1) with Clause (2) of Section 72, Railways Act, that the word-implies something more than negligence. The risk 'notes approved by the Governor-General in Council as their terms show are intended to reduce and limit the responsibility which railway administration would otherwise have under Sub-section (1). of Section 72. The finding that there was no negligence on the part of the opposite party necessarily excludes the case of misconduct, there is documentary evidence that in respect, of at least the consignment booked at Gondia the agent of the plaintiff admitted that the wagon was in good condition (Ex. G). There is no evidence that the goods had been loaded against the sides or flap doors as all the evidence that has been placed before me is inconclusive. That evidence is that when the wagons were opened at Shalimar' some bags fell out.' The bags of biri 'leaves are huge and comparatively light. It may as well be that some of them had slided to the sides by reason of the jerks and other causes due to motion Exs, Q and Q-2, the only documents on which the learned Advocate of the petitioners could lay his hands on, show that the opinion of some of the railway servants was that rain had beaten in.' If rain water enters a wagon by the great force of winds | do not see how the omission of the railway company to provide absolutely water tight doors, such as would not permit even a drop of water to enter would amount to misconduct. If that is the proposition intended to be laid down in Jumuadas v. E.I. Ry. Co. 1933 Pat 630 I must respectfully dissent from it. To insist On such a high standard would be to make an Indian Railway administration virtually an insurer and not a bailee, whose responsibility,, is defined in Sections 151 and 152, Contract Act.
5. With regard to the consignment booked at Amgaon there is a further difficulty that bars the success of the plaintiff. His agent admitted that the consignment had not proper and adequate covering and on that footing executed a risk note in form A. A Railway company does not insure against the negligence of the consignor. It is the duty of the consignor to have his goods properly packed such as would be damaged unless properly packed. This is even so where the responsibility of a carrier is much more than that of an Railway Administration: see Lord Dunedin in L. & N.W. Ry. Co. v. Richard Hudson 1920 AC 324 Disney's Carriage by Railway, Edn. 7, p. 64. For these reasons I would, discharge the Rule with costs one gold mohur.