SECRATORY OF STATE Vs. SETH LAXMINARAYAN

JUDGEMENT

(1.) THIS is an application in revision by the Secretary of State for India against the judgment of the Court of Small Causes, Sohagpur, given in favour of Seth Laxmi Narayan in respect of damages suffered by certain bags of sugar conveyed at the plaintiff's order from Bombay to Piparia by the Great Indian Peninsula Railway. 126 bags of sugar were loaded dry at Bombay and 49 of them arrived damaged or partly damaged by rain. The plaintiff took delivery of. 77 bags on 27th June 1930 and took delivery of the rest later after the damage had been assessed by the District Commercial Inspector on 4th July. The goods were consigned under risk-notes A and B. With risk-note A we have no concern and the Secretary of State relied on the protection afforded by the risk-note B, the essential part of which for, the purposes of this suit is that in consideration of the lower rate charged the railway administration is to be held harmless and free from all responsibility for any damage to the said consignment from any cause whatever except on proof that such damage arose from the misconduct of the railway administration's servants?. The plaintiff's claim was decreed by the lower Court on two grounds: The first is that the defendant company was negligent in not covering the bags with two water-proof sheets so as to protect the bags from damages owing to rain. This was the finding on a point for determination which was framed: "Whether there was wilful default on the part of the railway company as alleged?" The plaint itself makes reference to negligence alone. The other point is that had the defendant company considered themselves free from any blame or responsibility in the matter they would not have bothered to have the damage assessed by the District Commercial Inspector at all and that the very fact that the Inspector was sent down at once to assess the damage has been taken by the learned Judge as evidence of responsibility. Incidentally the plaintiff's allegation that he had obtained an assurance from the District Commercial Inspector that this amount would be paid to him, before he took delivery of the damaged bags, has been accepted by the trial Court.

(2.) THE defendant has applied for revision on the ground that the proper point for determination has not been fixed, and the burden of proof of misconduct lay on the plaintiff and that he had failed to discharge that burden. It is also contended that the consignment was loaded in a water-tight wagon and that the defendant took all the care that was possible. The Court has found that there was negligence on the part of the railway, and apparently considers this term as consonant with the term "wilful neglect" which was used in the risk-note up to the year 1926. In any case, "negligence" is not the same thing as wilful neglect" which possibly is what the learned Judge means by the anomalous term "wilful default," and "wilful neglect" is certainly not the same thing as misconduct" which, under the terms of the risk-note B in the present case, it is essential for the plaintiff to prove. Neither has the learned Judge properly appreciated what the duties of the railway company in consigning goods are. On the evidence on which the case has been decided this Court has discretion to determine whether it was sufficient to justify the Judge in drawing the inference required by the risk-note that the loss was due to the misconduct of the company's servants, and in this case I am of opinion that it would not be correct to hold that such inference was justified from the proved facts. In the first place, the fact that the District Commercial Inspector investigated the case and assessed the damages has no bearing whatever on the essential question of the misconduct on the part of the company's servants. The documentary evidence itself shows that the assessment was made without prejudice. This in itself is sufficient to contradict the plaintiff's statement that he was given an assurance by the District Commercial Inspector that the sum would be paid. An investigation into claims is necessary whether they are to be admitted or no for a variety of reasons, and the fact that this particular investigation was made without prejudice is an additional safeguard.

(3.) THE ground sheet is clearly the more essential of the two. Water would only come into the wagon when it was actually raining and damage the top and sides of the pile of sacks. The water which would enter once would accumulate on the floor and might remain on the floor of the wagon for days together and cause very considerable damage. As the plaintiff has failed to prove that the wagon was not water-tight to the knowledge of the company's servants at the time of the loading and as there was no obligation whatever on the company to provide any water-proof sheet at all, it is clear that misconduct, which was essential for the plaintiff to prove under the terms of the risk-note, has not been in any way established. Even were the wagon one which was not of the water-tight pattern, the evidence is insufficient to lead to the inference of misconduct. The result is that the rule will be made absolute and the plaintiff's suit will be dismissed with costs throughout. I fix pleader's fee in this Court at Rs. 30.