BABU RAMLAL Vs. SECYOF STATE

JUDGEMENT

(1.) This application under Section 25, Small Cause Courts Act, arises out of a suit by the petitioner against the Secretary of State for damages in respect of two consignments, one of piece-goods and the other of rice, which reached their destination, a station on the E.I. Ry., in a damaged condition. The former consignment was on a contract with the G.I.P. Ry., which, however, was not made a party to the suit, and the latter had been delivered to the E.I. Ry. In both cases the plaintiffs executed risk-notes freeing the railway from responsibility for the condition in which the goods might be delivered to the consignee and for any loss arising from that cause except upon proof that such loss was due to misconduct on the part of servants of the railway administration. The damage was caused by rain water and, as the roofs and sides of the wagons were found to have been water-tight, it was presumed that rain-water must have forced its way into the wagons through the crevices between the door flaps and the walls. The learned Judge who tried the suit held that damage caused in this manner could not in the circumstances of the case be attributed to misconduct. With respect to the first consignment he dismissed the suit also on the ground that the G.I.P. Ry. had not been impleaded and the plaintiff had failed to prove that the damage had been caused while the goods were being conveyed on the E.I. Ry. It is contended on behalf of the petitioner that the finding with regard to the responsibility of the E.I. Ry. is wrong. Mr. U.N. Banenjee appearing for the petitioner relied on Jamunadas Ramjas v. E.I. Rly. 1933 Pat 630 in which a single Judge of this Court took the view that failure to provide against such an ordinary contingency as rain-water forcing itself into the wagon and causing damage to grain in it amounts to misconduct. It has, however, been held in Durga Dutta Shri Ram Firm v. Secy. of State 1930 Pat 283, by a Division Bench of this Court that if a plaintiff fails to prove wilful neglect, he equally fails to prove wilful misconduct, which cannot be less than wilful neglect, and that the expression "wilful neglect" means that the act was done deliberately and intentionally and not by accident or inadvertence so that the mind of the person who does the act goes with it.

(2.) Mr. Banerjee relied also on the case of S.I. Rly. Co. Ltd. v. Messrs V.M.S.P. Brothers 1932 Mad 545, but that was a case in, which it was found that there had been reckless carelessness on the part of the railway and deliberate omission to take reasonable care. Mr. Banerjee referred to another decision of a single Judge of this Court in B.N. Rly. v. Janki Das Marwary 1936 Pat 70 in which, it was held that an unexplained and habitual failure to act in accordance with rules or standing orders obviously designed to prevent damage to goods by water amounts to misconduct on the part of the railway administration. In the present case there is no finding, nor is there evidence on which a finding could be based, that there was any, omission on the part of the railway to observe any prescribed precaution for the protection of the goods from risk of damage by rain-water. No error of law has been committed by the learned Judge in his finding that misconduct should not be inferred from the mere fact that damage was caused by the entry of water into the wagon between the hinges of the door-flaps. In this view of the matter it is not necessary to consider the other ground on which the suit was dismissed with regard to one of the consignments. The application is accordingly dismissed with costs. Hearing fee two gold mohurs.