TIKARAM Vs. BENGAL NAGPUR RAILWAY

JUDGEMENT

(1.) 1. The applicant consigned certain perishable goods at Chhindwara on 1st February 1930, for carriage by railway to Amraoti Station. He signed a risk note Form "B" (Ex. D-2) by which he undertook to hold the Railway Administration harmless and free from all responsibility for any deterioration of the consignment whatever except upon proof that such deterioration arose from' the misconduct of the Railway Administration's servants. This agreement was deemed to be made separately with all Railway Administrations which should be carriers for any portion of the transit. The consignment reached Ajni in good time. Owing to a strike of railway employees more than a month elapsed before it reached Amraoti. The learned Small Cause Court Judge has held that the plaintiff has suffered damages but that there was no misconduct on the part of the railway employees.

(2.) NOW the damage arose from the strike, that is, from the refusal of railway employees to work. It is not suggested before me that this refusal was justified : in the written statement it is merely alleged that the strike of the railway employees was beyond the control of the defendants. In my opinion, the refusal to work must be considered misconduct: my opinion is supported by G. I. P. Ry. Co. v. Firm Gurdayal AIR 1927 Pat 837. I add that if the misconduct of a single employee had involved the destruction of the consignment, the carriers would clearly be liable: it makes, in my opinion, no difference that many servants were guilty of misconduct. It is not material whether or not the defendants did all in their power to minimise the effect of the misconduct of some of their servants. The decision of the learned Small Cause Court Judge appears due to misapprehension. I reverse his judgment. There is no decision on the point whether both defendants are liable, nor regarding the amount of damage suffered. The learned Small Cause Court Judge is therefore directed to come to a fresh decision: costs in this Court will be borne by the non-applicants: counsel's fee Rs. 20.