BENGAL NAGPUR RAILWAY, CO Vs. JANKI DAS MARWARY

JUDGEMENT

(1.) These are three applications under Section 25, Small Cause Court Act, arising out of three suits against, the petitioner, the B.N.R. Co., for compensation for damage by wet to 3 consignments of ata, flour and suji which were carried by the petitioner from Ramkrishtopur Station to Jaychandipahar Station on its own line in May, August and September, 1933. There was no dispute that damage was actually caused to the consignments, and it was in fact assessed by an Assistant Commercial Inspector of the petitioner. The consignments were covered by Risk Notes in Form H, under which the Railway Administration is to be held harmless and free from all responsibility for any damage to the consignments from any acts whatsoever, except upon proof that ... damage arose from the misconduct of the Railway Administration's servants.

(2.) The lower Court found that the petitioner's servants had acted in violation of various rules in connexion with these consignments and that damage was caused by rain water entering into the wagons, which were either leaky or were not securely closed and made water-tight owing to the negligence of the defendant company and their servants.

(3.) Relying on Jamunadas Ramjas V/s. EI Ry. Co. Ltd. 1988 Pat 630, the lower Court held that the defendant was therefore not absolved from liability for the damage. The learned Advocate for the petitioner has urged that the findings of fact of the Court below are open to exception, but in my opinion, there is no substance in the contention. It appears that two of the consignments, which were loaded in August and September, were carried in C type wagons, regarding which there was a special standing order issued in May 1931, (Ex. 4) and repeated in May 1933, (Ex. J), laying down that special care must be taken to see that the widows are securely fastened and that there is no likelihood of rain penetrating. The evidence adduced on behalf of the plaintiffs was to the effect that the flap doors, windows and roofs of the wagons had let in the water that had damaged goods. Against this we have the statements of an Assistant Train Examiner at Shalimar, D.W. 1, and a Siding Clerk at Ramkrishtopur Station, D.W. No. 3, for the petitioner, that they had examined the wagons and found them in good condition the examination of the Assistant Train Examiner was as the lower Court has pointed out, of a very cursory character, though there was a special standing order regarding the careful inspection of the roofs of vehicles, while the Siding Clerk, who admittedly made no note about his alleged examination of the wagons in August and September, has naturally so little knowledge of the particular wagons that he only claims that the wagons loaded by him had an iron sheet roofing because most of the C type wagons have such roofing and he can not say if water goes inside the wagons in case the doors are left loose;" another witness; examined for the petitioner was a Shed Clerk at Ramkrishtopur Station, who speaks of loading the consignment of May 1933, in a wagon of the A-2 type; he was unable to define this type of wagon, and while he admits that he made no note of the examination of the wagon and that there is no paper to show that the wagon had a steel sheet roof (as claimed by him) and not a corrugated iron roof (as claimed by the plaintiffs), his professed inability to say if the bags were dry or wet when they were loaded makes him a thoroughly unreliable witness.