Patna High Court
Bengal Nagpur Railway Co., Ltd. vs Hukum Chand Hardat Rai on 15 May, 1930
Equivalent citations: 128IND. CAS.798, AIR 1930 PATNA 559(2)
JUDGMENT James, J.
1. This appeal arises out of a suit instituted to recover from the Bengal Nagpur Railway the value of a bale of goods which was stolen in transit between Shalimar and Ranchi. The consignor had signed a risk-note in Form B by which the Railway was exonerated from responsibility for loss of the goods except upon proof that the loss was due to misconduct on the part of the Railway administration or of its servants. It appears that these goods were consigned in a waggon which was not looked, and while the train was proceeding at a pace of five or six miles an hour, the waggon was opened and the bale was stolen while the attention of the Guard was engaged elsewhere. The Munsif of Ranchi found that the plaintiffs' loss was due to misconduct on the part of the Railway administration and his decision was affirmed on appeal by the Judicial Commissioner of Chota Nagpur.
2. Mr. Abani Bhusan Mukharji, on behalf of the defendant Railway administration, argues in the first place that the Court below has misunderstood the meaning of the word "misconduct" in the risk note. He argues that it is necessary to show that there was definite misbehaviour on the part of the Company's servants, such as disregarding some rule of the Railway Company before it can be said that there was such misconduct as would render the Railway liable to a person who may have executed a risk-note in Form B. In support of this argument he cites the decision in B.B. and C I. Railway v. Rajnagar Spinning & Co. Ltd. 124 Ind. Cas. 229 : A.I.R. 1930 Bom. 129 : 54 B. 105 : 31 Bom. L.R. 1426; Ind Rul. (1930) Bom. 261. In that case the attention of the learned Judge was directed chiefly to the question of whether there had been misconduct on the part of Railway servants, and the question of whether there had been any misconduct on the part of the Railway administration itself was apparently not considered. It was pointed out that misconduct did not mean the same thing as "wilful neglect" in the old risk-note, but exactly how the learned Judges interpreted the term "misconduct" is not quite clear. The view that the use of the term "misconduct" limits the liability of the Railway administration to cases in which Railway servants have been guilty of a breach of the rules of the Company is, in my judgment, open to criticism. The contract which we have here to interpret is a contract between the Railway administration and the consignor of the goods, and the misconduct referred to in the risk-note is not such misconduct of Railway servants as may amount to a failure of duty towards their employers, but such a misconduct on the part of Railway servants or the Railway administration itself as amounts to a failure of duty towards the consignor.
3. In an earlier case of the Bombay High Court Madras & S.M. Railway v. Jhumakhram 118 lnd. Cas. 241 : A.I.R. 1928 Bom. 304 : 52 B. 770 : 30 Bom. L.R. 1104; Ind. Rul. (1929) Bom it was remarked that the term "misconduct" did not ordinarily cover acts, of negligence. This view was based upon the judicial interpretation of the term as it is used in Section 50, County Courts Act of 1888, whereby a Registrar or Bailiff of a County Court, who may be guilty of misconduct in the exercise of his official functions, can be fined ten pounds by the County Court Judge and be also liable for damages and costs. It has been held that the term "misconduct" in that section does not cover acts of mere negligence, but I doubt whether the interpretation of the word as used in that Statute is of great assistance when we have to interpret its meaning in this contract. In Durga Dutta-Shri Ram Firm v. Secretary of State for India 124 Ind. Cas. 883 : A.I.R. 1930 Pat. 283 : 11 P.L.T. 161 : Ind. Rul. (1930) Pat. 449 : 9 Pat. 733 a Division Bench of this Court treated the term "misconduct" as equivalent to the term "wilful neglect" which was used in the old form, including, of course, any kind of misconduct of a more culpable nature still, and I do not think that Mr. A.B. Mukharji has been able to give us any justification for differing, from the view of the meaning of the term which was adopted in that case by Wort, J. I do not think that we are carried very much further by the argument that the word "misconduct" implies some kind of moral lapse, because the question at once arises of at what particular stage we are to begin to consider neglect of duty to be culpable. There is always some degree of culpability in wilful neglect, though not necessarily very much: but I do not consider that there is any necessity for discriminating between the meaning of the term "misconduct", in the new form and the term "wilful neglect" in the old. The old form protected the consignor against wilful neglect on the part of the Railway administration, and against theft or wilful neglect on the part of Railway servants. Theft is a general term, but in India it is also a word of art equivalent on the whole to larceny in English Law. The form was not artistically drafted, because its language left openings for argument as to whether the consigner was protected in circumstances in which a Railway servant, might have committed an offence punishable under Section 403 or Section 407, Indian Penal Code. All such ambiguity is avoided by the use of the term "misconduct". After all, wilful neglect is misconduct, and I think that the reasonable view is to hold that the term "misconduct" means "wilful neglect" including a fortiori anything more culpable, and rendering it unnecessary to complicate the form unduly by mentioning theft, or criminal misappropriation or criminal breach of trust
4. On the assumption that the plaintiffs had to prove wilful neglect on the part of the Railway administration Mr. Abani Bhusan Mukharji argues that they should be held to have failed to prove this, and that the evidence on which the Courts below found that there had been wilful neglect was not such as could justify that finding. The learned Judicial Commissioner says that the waggon containing the goods which were stolen was fastened with a rivet sealed with wire and lead, which could be broken open by an expert in forty-five seconds. The Railway administration puts locks on some waggons but not on all; and this train with its waggons unlocked moved at a very slow pace in that part of the journey in which the theft occurred. The learned Judicial Commissioner has observed that in other cases Railway Companies have been held responsible, on the ground of wilful negligence, for loss that has occurred from their not looking the doors of waggons in circumstances similar to those in the present case. He cites the decisions in Balaram Das Fakir Chand v. G.I.P. Ry. Co. 88 Ind. Cas. 559 : A.I.R. 1925 All. 562 : 47 A. 724; L.R. 6 A. 340 Civ.; 23 A.L.J.545 and Bindraban v. G.I.P. Ry. Co. 96 Ind. Cas. 1046; A.I.R. 1926 All. 394 : 48 A. 766, to which he might have added Karali Prosad Dutta v. East Indian Ry. Co. 111 Ind. Cas. 792 : A.I.R. 1928 Cal. 498 : 48 C.L.J.32. Mr. Abani Bhusan Mukharji points out that in Bindraban v. G.I.P. Ry. Co. 96 Ind. Cas. 1046 : A.I.R. 1926 All. 394 : 48 A. 766 the Court remarked that running train thefts had been particularly frequent on that part of the line on which goods had been lost and that there is no such finding in the present case. But there was no such finding to modify the effect of the decision in Balaram Das v. G.I.P. Ry Co. 88 Ind. Cas. 559 : A.I.R. 1925 All. 562 : 47 A. 724; L.R. 6 A. 340 Civ.; 23 A.L.J.545 or in that of Karali Prasad Dutta v. East Indian Ry, Co. 111 Ind. Cas. 792 : A.I.R. 1928 Cal. 498 : 48 C.L.J.32.
5. The question of whether wilful neglect has been proved, if there was evidence before the Court from which wilful neglect could be inferred, is a question of fact. In this case the doors of the waggon were not so secured as to make it difficult for Railway thieves to open them, and when in the three cases to which I have referred above it has been held that the despatch of goods in this manner renders the Rail way administration liable to the consignors in spite of the conditions contained in the Risk-Note Form B, it cannot be argued a a point of law that the learned Judicial Commissioner was not justified in drawing the inference that the failure to secure the property in this particular case amounted also to wilful neglect. It may be true, as Mr. Abani Bhusan Mukharji points out, that in other cases it has been held that the failure to secure the doors effectively did not amount to wilful neglect, but the question here is not whether the learned Judicial Commissioner might possibly have been justified in taking another view of the effect of the evidence: the question is whether it can be said that the view which he took was wrong in law. The learned Judicial Commissioner has remarked that there is nothing in the risk-note which absolves the Railway Company from the necessity of taking proper care of goods entrusted to them for carriage as contemplated under Section 151, Contract Act. Mr. Abani Bhusan Mukharji argues that, by virtue of the provisions of Section 72 Railways Act, the contract embodied in the risk-note excludes the operation of Section 151, Contract Act . There is some authority for the learned Judicial Commissioner's view in the judgment of the Court in Karali Prasad Dutta v. E.I. Ry, Co. 111 Ind. Cas. 792 : A.I.R. 1928 Cal. 498 : 48 C.L.J.32, but the question is not here of any importance, because the definite finding of the learned Judicial Commissioner that theft has been misconduct on the part of the Railway administration, is quite independent of his remarks regarding the effect of the Contract Act. I would accordingly affirm the order of the lower Appellate Court and dismiss this appeal with costs.
Chatterji, J.
6. I agree.