SECY OF STATE Vs. (FIRM) SHEO BHAGWAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit in which the plaintiffs seek to recover the sum of rupees 3,752-5-9 in respect of goods which they allege belonged to them and which were destroyed by fire whilst under the custody of the defendant on 1 February 1929. The main facts of the dispute between the parties are really not in dispute and may be very briefly stated: On 31 January 1929 the plaintiffs servant took 465 bales of hemp belonging to the plaintiffs to the railway station at Sheopur near Benares. The bales were intended for despatch to Calcutta. No wagon was immediately available to receive the bales, which were accordingly left overnight in the shed belonging to the railway in close proximity to their running line. The following day part of the consignment of bales was destroyed by fire. The plaintiffs allege that sparks from a passing engine of a goods train alighted on the bales and set fire to them. The plaintiffs claim that they are entitled to recover from the Railway Company the value of the hemp which has been destroyed inasmuch as the fire resulted from their carelessness. The Railway Company deny that the bales caught fire as a result of the spark or sparks alighting upon them from a passing engine. This point however is not now open to argument. The lower appellate Court has found that sparks from a passing engine set fire to the bales in question. That is a finding of fact which cannot be challenged in second appeal. In para. 7 of the plaint the plaintiffs set out the grounds upon which they claim that the Railway Company are liable to make good the loss resulting from the fire. They say the said fire was due to the negligence of defendant 1, the Railway Company. Amongst the various acts of negligence the plaintiffs aver that the engine of the said goods train was defective and the coal supplied to the said engine was also of inferior quality and the said train was being driven negligently and in violation of the rules and practice obtaining on the railway, the staff at Sheopur station was negligent and inadequate in extinguishing the fire and the defendant has negligently suffered Sheopur station to remain without any fire extinguishing appliances or without any protection at all. But for the negligence of defendant 1 as in the premises hereinbefore disclosed the said fire could not have taken place and, at any rate, could have been extinguished before any injury could be caused.

(2.) It will be observed that the plaintiffs charged the defendant with negligence in three respects: (1) The engine and the fuel were defective and the engine was being driven negligently. (2) The Railway Company had failed to take adequate steps for the protection of goods lying in their shed at Sheopur station. (3) They had failed to provide the necessary fire extinguishing appliances which ordinary care dictated should have been provided in a shed containing combustible material in close proximity to a railway line.

(3.) Upon a consideration of the evidence the learned Subordinate Judge has found that the Railway Company was guilty of negligence in two respects, viz., (1) it failed to provide the necessary protection of the hemp which was consigned by the plaintiffs; (2) it failed to make reasonable provision for the extinguishing of fire in its premises. The learned Judge accordingly held that the loss suffered by the plaintiffs was the result of the defendant's negligence, and he has awarded the sum of Rs. 2,099-13-10 to the plaintiffs. The learned Munsif and the learned Subordinate Judge refused to award the full sum sued for inasmuch as it was proved that a certain portion of the consignment of bales of hemp was saved by the plaintiffs themselves. The plaintiffs preferred a cross-objection in the Court of the learned Subordinate Judge in which they claimed that, they were entitled to the full amount sued for. This cross-objection was dismissed, and no appeal has been preferred against its dismissal.