P (PLP)

The plaintiff then brought a suit for the recovery of Rs. 1,800 from the railway administration, alleging that the loss had been occasioned by reason of the misconduct of its officials. The trial Court decreed the suit but the District judge, holding that the delay had been caused by abnormal times which were characterised by disturbances, the influx of refugees and the transfers of railway personnel, came to the conclusion that the facts in question did not constitute misconduct. He, therefore, dismissed the suit, and the plaintiff has come up in second appeal. It is admitted that the delay was occasioned because the entire wagon containing the onions was detained at Multan from the 16th December to the 22nd December 1947 for the carrying out of repairs which were rendered necessary by reason of the wagon becoming " invalid " at Multan. Rahmat Ullah, Head Train Clerk, appearing as D. W. 4, has stated that the wagon reached Multan on the 16th December, that on the 17th December it remained on the siding of wagon line No. 1, that on the 18th December it was shifted to line No. 8 where it remained on the following day, that on the 20th December it was transferred to the outside transit line and that it was only on the 21st December that it went to the sick line. He explained, however, that there were many wagons in the yard for repairs and that the work was upset by reason of the movements of the refugees. At the same time he admitted that although wagons carrying perishable goods have very big labels affixed to them with the words "fresh fruit ", "perishable goods " or push‑on", this particular wagon was without any such label. He also admitted that such wagons, namely, those carrying labels, are under instructions repaired in preference to others. He could not say whether such a label should have been placed on this wagon but he could say from experience that if the goods had been carried by goods train (this, as we have seen, was a passenger train), labels showing that the goods were perish able would have been affixed. Muhammad Ibrahim, Assistant Train Examiner, who appeared as D. W. 3 and who upon examination of the wagon at Multan had marked it damaged, stated that E. L. vans are used for fruit and vegetables because they are air‑conditioned, that this was an E. L. van, that it was attached to the passenger train, and that although he knew it contained perishable goods, he had not asked anybody to transfer the goods to another wagon while this was being repair ed. He further admitted that the repairs consisted in the replace ment of some bearings and a not which took about three quarters of an hour or an hour. The repairs were executed on the 21st December 1947 and prior to that date he had not seen the wagon in the repairing yard. These are the simple facts of the case. The railway officials knew that there were perishable goods in the wagon, that it was a wagon intended for perishable goods, that the owner of the goods had taken care to book them by passenger train and yet, although it took only about an hour to repair the damage, the wagon remained neglected at the Multan railway station between the 16th and the 21st December 1947. Under section 72 of the Railways Act the railway administra tion is responsible as a bailee under the Contract Act for the loss, destruction or deterioration of goods delivered to the administration to be carried by railway except that there can be an agreement in writing purporting to limit that responsibility. This agreement in the present case has taken the form of risk note B which absolves the administration from responsibility except upon proof that such loss, destruction, deterioration or damage arose from misconduct on the part of the railway administration or its servants; The question, therefore, is whether these facts constitute misconduct. On this point there is abundant judicial authority and I think it would be worthwhile reproducing some of it. In B. N. Railway Co. v. Moolji Sicka & Co. (A. I. R, 1930 Cal. 815) the plaintiff company had hired a whole wagon for the despatch of 348 bags of country cigarettes. Out of it 60 bags were damaged by rain and it was discovered at the time of delivery that water had leaked into the wagon through holes. It was held that there would be misconduct if the goods had been loaded in the wagon while it was in a defective condition but that there was no indication that such was its condition when it was loaded and that consequently there was no misconduct. Giving the history of the term " misconduct" used in the risk note form B, it was pointed out that the term originally used was " wilful neglect " which was replaced by the term " misconduct " in 1934 by reason of an agitation which was started against this form on the ground that it was well nigh impossible to prove the liability of the railway under it. It was, therefore, pointed out that the present risk note is wider and more comprehensive in enlarging the liability of the railway than the old form or the English form of the risk note which used the words " wilful misconduct ". Reliance was also placed on the dictionary definition of the term " misconduct " as " bad management, mismanagement, malfeasance or culpable neglect of an official in regard to his office". It was further held that the terms " is wide enough to include wrongful commission and omission, intentional or unintentional, of any act which it wrongfully did or which it wrongfully neglected to do, or to put it in another way, did what it should not have done and did not do what it should have done". Further, " I am not inclined to accept the view that misconduct only refers to acts of gross or culpable negligence and the term does not ordinarily cover acts of mere negligence. In my judgment the word ` misconduct ' denotes any unbusiness‑like conduct and includes negligence or want of proper care which a bailee is to take under section 152, Contract Act. The immunity which the risk note brings to the railway company is by shifting the burden of proof. In the case of a bailee, if the goods are found damaged in his possession, the onus is upon him to prove how the damage occurred, if he wants to avoid liability. In the case of goods damaged in the possession of the railway company covered by a risk note, the owner of the goods is to prove that the injury to the goods was caused by the misconduct of the railway company". " In Secretary of State v. Allah Ditta (A. I. R. 1930 Lah. 120) a consignment of plantains was sent from Muttra to Lahore. It was not weighed at Muttra but the Muttra railway authorities sent a wire to Delhi, Bhatinda and Lahore for weighment. At Delhi the consignment was weighed but no intimation was sent to Bhatinda or Lahore that it had been weighed. At Bhatinda the consignment was detained for thirty hours although not ultimately weighed. It reached Lahore in a deteriorated condition. Holding that there was misconduct, the learned judges observed that the term was used in a sense which carried an imputation of some degree of moral obliquity. In the latter part of the judgment they went further and added: "If duties are intentionally shirked because there is a disinclination to perform them, an inference justified by the facts here found, that is, I think misconduct what ever meaning of the word is chosen." In Secretary of State v. Khan Cha7‑ad Ram Lal (A. I. R. 1935 Lah. 492) a consignment of apples was sent from Rawalpindi to Bombay, where it reached in good condition but as it was not sent by the Frontier Mail, it was delayed, with the result that at the time of its arrival the market was less favourable. It was held that there was no misconduct as the railway administration had not contracted to send the goods by a particular train. In this case the interpretation of the term " misconduct " in a number of rulings including B. N. Railway Co. v. Moolji Sicka & Co. (A. I. R. 1930 Cal. 815) and Secretary of State v. Allah Ditta (A. I. R, 1930 Lah. 120) was reproduced with approval. Some of the other rulings mentioned in this judgment are the follow ing: (1) B. B. and C: I.‑Railway Co. Ltd. v. Rainagar Sinning Weaving and Manufacturing Co. Ltd.(A. I. R, 1930 Bom. 129) where it was observed that the word " misconduct " in the risk note suggested that a railway servant had been guilty of doing something which was inconsistent with the conduct required of him by the rules of the company ; and (2) 161. and S. M. Railway Co. v. Sundarjee Kalidas (A. I. R. 1933 Cal. .742) where it was observed that misconduct was something opposed to accident or negligence and was the inten tional doing of something which the doer knew to be wrong or which he did recklessly not caring what the result would be. In Bengal Nagpur Railway Company v. Haji Latif. Abdulla (A. I. R. 1937 Cal. 410) where 42 out of 210 bags of tobacco were damaged because they were carried in a leaky wagon, it was held that a fair inference that the damage (was due to the company's despatch in a non‑waterproof wagon can be drawn and that the railway company was guilty of misconduct. It was observed that although negligence does not always amount to misconduct, .it does if 'it involves culpable neglect likely to cause damage, even if it does not involve recklessness. Reliance was placed on the definition of the term given in the Oxford Dictionary, which has already been reproduced. , It will be observed that the inference drawn here from the fact that the goods were found damaged by rain was different from that drawn in Bengal Nagpur Railway Co. v. Moolji Sieka & Co. (A. I. R. 1930 Cal.815). Some of the rulings cited on behalf of the North Western Railway and which are distinguishable on facts may also be mentioned here. In Albuquerque & Sons v. The South Indian Railway Co. Ltd. (1922 Mad. L. J. 90) a consignment of oil was lost and it was found that there was a delay of forty days which was not wilful. It was held that the delay in itself did not amount to wilful neglect. This is a case under the terms of the old risk note which used the words " wilful neglect " for " misconduct '. It has already been observed that misconduct is a wider term than wilful neglect and increases the responsibility of the railway administration. In Gati Shah‑Mahadeo Ram v. The Secretary of State for India (130 I. C. 837) a consignment of potatoes reached its destina tion after a delay of eleven days and the station master finding it in a, deteriorated condition put it to auction at the railway station. It was held that although in certain circumstances a delay of this length of time would be evidence of misconduct, the lower Court had found in the case in point that there was no unreason able delay in the circumstances and in arriving at this conclusion it had referred to the congestion of railway traffic and to the rules and conditions prescribed by the Railway conference for the determination of responsibility in cases of delay. It was also observed that possibly the potatoes were not in good condition when they were first consigned. I am of the opinion that where there is bad management or mismanagement or negligence of a kind which, although not necessarily reckless, suggests that something was done or omitted to be done which a man of ordinary prudence would not have done or would not have omitted to do, there is a case of misconduct. Now in the present case there is the statement of Muhammad Ibrahim (D. W. 3) that to his, knowledge there were perishable goods in the van, that an E. L. van is used for fruit and fresh vegetables and that knowing these facts he had done nothing to see that the goods were transferred to another wagon as he did not regard it to be his duty. (It should be borne in mind that the plaintiff had not booked the entire wagon, so that there was no question of keeping the wagon intact.) The fact that there was congestion in the repairing yard does not alter the circumstance that an E. L. van is entitled to preferential treatment, and it is apparently for that reason that it is marked E. L., so that the railway officials should know that it contains fruit and fresh vegetables. Rahmat Ullah (D. W. 4) admits that where there is a label showing that the wagon contains perishable goods, there are instructions that such wagons should be repaired speedily and further that there are orders that loaded stock should be cleared in preference to empty wagons. He, therefore, believed that this wagon also must have been preferred though there is no foundation for this belief. It has been found as a finding of fact by the learned District judge that " the van was repaired in its turn and without special preference " and that " there was negligence on the part of the railway in that it did not give preference to the repairs of an E. L. van.". There is no reason why this preference should have been withheld because there was abnormal congestion of ordinary traffic. I hold that there was misconduct in this case. It was contended that a 'second appeal does not lie because the finding is one of fact and in support of this contention reliance was placed on Shanti Lal v. Tara Chand (A. I. R. 1933 All. 158), Naurang Lal v. B. B.. and C.

1. Railway (A. I. R. 1936 Pat. 84), and Ramdas Topanda Sukkar Municipality (A. I. R. 1940 Sind 254). In the first of 'these cases, which was under sections 151 and 152 of the Contract Act it was held that the question whether a bailee used diligence was in the main one of fact. In the second case it was held that the question whether there had been misconduct or negligence was not a question of law. In the third case where a municipal pipe had burst and damaged the house, it was held that the question whether the municipality was negligent was a question of fact. I would, however, prefer the Lahore view contained in E. I. Railway Co. v. Piyara Lal (A. I. R. 1928 Lah. 774) and Secretary of State v. Ghanaya Lal Sri Kishan (A. I. R. 1928 Lah. 837 where it was held that the proper legal effect of proved facts was a question of law and that the term " wilful neglect " was not a concrete fact but a matter of inference and the term had a special significance in law. The same may be said of the term misconduct." The amount of damage suffered by the plaintiff not being questioned, I accept the appeal and decree the plaintiff's suit for Rs. 1,800 with costs throughout. A. H. . Appeal accepted.