GOVERNOR-GENERAL IN COUNCIL Vs. LACHMI NARAIN BHAGANIA

JUDGEMENT

(1.) This application arises out of a petition by the defendant in a suit for recovery of damages for loss of goods in course of transit on the Railway. The goods were 156 bags of turmeric, jira etc. consigned from Nimtala Station, a station on Bengal Assam Railway destined to be delivered at Jharia by one Nand Lal. The consignee was Nand Lal himself. The goods, however, were taken delivery of by the plaintiff who claims to be the owner of the goods by virtue of purchase. The Court below has not been satisfied with his evidence as to his being the owner of the goods either in the sense that he was the consignor or consignee, or in the sense that he by virtue of purchase became the owner thereof. But he disposed of this point in favour of the plaintiff on the ground that the Railway Company delivered the goods to him, and he being of opinion that this amounted to a sort of estoppel. How far he is correct in this finding, I Will come to it later. Secondly, notwithstanding the admitted fact that these goods were taken charge of by the railway under Risk Notes A and B, he comes to a finding that there was negligence or misconduct on the part of the railway administration or their servants, and that, therefore, the Railway Company, for the matter of that, the defendant was liable. Risk Notes A and B, make it clear that in a case as the present, there should be no liability on the railway administration for any loss, destruction or deterioration of or damage to the consignment except upon proof that such loss etc. arose from misconduct of the Railway Administration's servants. Misconduct has been held to be something more serious than mere neglect. The only other term which is convertibly employed for it is wilful neglect. "Wilful neglect" has been defined in R. V/s. Robert Downes (1876) 1 Q.B.D. 25 and R. V/s. Senior (1899) 1 Q.B. 283, referred to in Ardeshir Bhicaji V/s. G.I.P. Ely. Co. A.I.R. 1928 P.C. 24, to mean and import that the "act" must have been (done?) deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it. In the case referred to, it was found that there was ample evidence of neglect but no evidence or finding of wilful neglect. The learned Court below who has disposed of this case has laboured under a misapprehension. He has never tried to spin out a case of misconduct as against the Railway Administration's servants. Mere negligence permeates all his conception as to the Railway Administration's liability and this is directly against the expresses contract entered into between the consignor and the administration. The plaintiff cannot, however, claim any higher right than that of a consignor from whom, if at all, he derives his title. He has referred to, the seals on the doors of the wagon in which the goods has been stacked having been blurred, the crevices between the flap doors being rather wider than usual, absence of bars behind the flap doors and some of the bags coming in immediate contact of the doors by the time they were in transit as instances of neglect. He has never considered the case of wilful neglect and though he has used the word "misconduct," he has never been alive to the significance of the word and has never applied them to the facts of this case.

(2.) I will briefly observe how far the acts attributed to the railway servants enumerated above do imply wilful neglect on their part. With regard to the seals, they were not blurred either at the time when they were affixed or at the time when they were taken out. At least that is the evidence on record which he does not profess to disbelieve. Therefore, if by the time the seals were produced in Court they had become blurred that is wholly irrelevant to the question under consideration. With regard to the crevices being wider than usual at the place of unloading his finding can be characterised as just begging the question under consideration because evidently between the sending station and the destination, there has been pilferage through the crevices--a practice usually adopted by the thieves and is widely known in cases of railway thefts of consignments. If the evidence indicated that the crevices in the flap doors in this particular case were wider, than as they would normally be, at the sending station or at any intermediate station within the knowledge and notice of the railway servants, some amount of wilful neglect would have been attributed to them for not taking steps to device some measure or other to give protection for the safety of the goods. I will not, therefore, infer misconduct from this circumstance. Next is the omission to provide any bars. Having in view the nature of the pilferage that must have been committed in this particular case, I do not find how the bars even if provided would have obviated the loss. Therefore that too is completely immaterial. With regard to stacking the bags inside the wagon, the evidence which has been accepted by the trial Court is that they were so stacked as to leave sufficient space between the bags and the flap doors on both sides so as to be beyond the reach of an ordinary pilferer. But it is not an usual event nor an impossibility that in case of transit in the jolting that is necessarily occasioned by the motion of the train, the bags may topple down and in course of events may come in direct contact with the crevices of the flap doors. It has not been pointed out in the evidence of the plaintiff nor has it been suggested by the trial Court how could any jolting and the consequent toppling down or shifting of the bags from the place where they were originally stacked be prevented. Under the circumstances, this is also far from what can be called to be due to any misconduct, or, in other words, any wilful neglect. Under the circumstances, I would hold that the plaintiff in this case, on whom the onus lies according to the contract in risk note B, has not discharged the same in bringing home to the railway servants any wilful neglect or misconduct as the cause of the loss, if any, sustained by him.

(3.) This would sufficiently dispose of the revision, but I would also express my dissatisfaction with the finding of the learned trial Court that delivery of the goods to the plaintiff under an indemnity bond amounts to any estoppel. The very execution of an indemnity bond and its insistence by the Railway Administration do suggest that the transaction did not amount to an acknowledgment of the plaintiff's position as owner of the goods.