FIRM, BANWARILAL JAGANNATH Vs. BB& CIRYCO LTD

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the dismissal, by the Court below of their claim for damages. The suit was against the Bombay, Baroda and Central India Railway to recover Rs. 899-14-0, on the allegation of short delivery of 25 tins of ghee out of a consignment of 63 tins booked to the plaintiffs at Tinsukia from Malakhera station. The company denied liability, and the main issues for trial were whether the defendants were exempted from liability under the risk notes, A and H covering the consignment and whether the plaintiffs were entitled to sue. The Munsiff decided both points in favour of the plaintiffs, and decreed the suit. The Court, of appeal below reversed these findings and dismissed the suit. Plaintiffs have appealed to this Court. The contract between the parties is embodied in risk note H. It is a contract of carriage at a special reduced rate, in consideration of which the Company is exonerated from all liability for loss or damage to a consignment, except on proof that such loss or damage arose from the misconduct of the servants of the Company. There is a proviso that in case of non--delivery of the whole of one or more packages forming part of the consignment such non--delivery not being due to accident to a train . or to fire, the company shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in possession or control of the Company, and if necessary, to give evidence thereof before the consignor is called upon to prove misconduct but, if misconduct cannot fairly be inferred from such evidence, the burden of proving such misconduct shall lie on the consignor.

(2.) Both Courts below have directed themselves properly in regard to the evidence adduced before them, but they differ in the conclusion derived from consideration of that evidence. The Munsiff's finding was that the defendants had not shown in what condition the wagon was at Kapasamohanta, (one of 22 stations between Gorakhpur where the consignment was intact and Chapra where the loss was detected) and had therefore failed to disclose how they dealt with the consignment throughout the time, and were not protected under the risk note. The Court of appeal below held that no such evidence of examination of the wagons at intermediate stations was necessary that the loss was due to pilferage; that no misconduct on the part of the Railway servants could fairly be inferred from the evidence showing how the consignment was dealt with; that the onus of proof of misconduct therefore lay on the plaintiff and that it was not discharged. The suit was therefore dismissed.

(3.) On appeal before us, the substantial contentions have been that the Court below should have inferred, from the evidence given on both sides that there was misconduct on the part of the Company's servants, and that there was uo disclosure, on the part of the Company, of the manner in which the consignment was dealt with such as would, under the terms of the contract throw the onus of proving misconduct on the present appellants. In view of these contentions, reference was made before us to a number of reported cases, in which the question of misconduct was directly or incidentally considered. Only one of these cases however is exactly in point 60 Cal 996 M. and S. M. Ry. Co. V/s. Sundarjee Kalidas 1933 Cal 742. In that case it was laid down, after an exhaustive review of the authorities on the point that Misconduct is not necessarily established by proving even culpable negligence. It is some--thing opposed.to accident or negligence, and is the intentional doing of something which the doer knows to be wrong, or which he does recklessly, not caring what the result may be.