P L D 1963 Dacca 655 (PLP)

SIKANDAR ALI, J.

‑This appeal arises out of a suit for recovery of damages and the plaintiff is the appellant.

2. The plaintiff Company delivered a consignment of 55 bales of cotton yarn, each bale containing 40 bundles, to the defendant Railway Administration at Chittagong on 26‑5‑1956 under Railway Receipt No. 886588 of date for carriage and delivery to him at Narayanganj. On its arrival at the destination the consignment was found badly damaged by damp and rain water due to gross negligence of the Railway Administration and on assessment survey made by Sinclaire Murray (Pakistan) Ltd. after due correspondence with the defendant Administration the t loss thus caused was estimated at Rs. 6,750‑7‑

0. Open delivery was accordingly taken under proper damage certificate granted by the appropriate authority but the loss was not made good in spite of demands. In the circumstances, the present suit was instituted on the expiry of the prescribed period after due service of the requisite notices under section 77 of the Railway Act and section 80 of the Code of Civil Procedure.

3. The defendant Railway Administration in contesting the suit did not question the fact of the alleged damage caused to the goods or the extent of the damage as assessed on survey by Sinclaire Murray. Its plea on the other hand was one of non -liability based on denial of the alleged misconduct. It was thus contended that the consignment in question was loaded in a water‑tight wagon but in spite of this the alleged damage to the bales was caused in transit on account of rain‑water entering the crevices of the wagon through the flap‑doors in circumstances beyond the control of the Administration and not due to any negligence on the part of the operating personnel concerned. It was also pleaded that the said damage would not have been caused, had the consignor taken the precaution of covering them with double gunny and iron bands tight. The substantive defence case thus was that the consignment was not properly packed, as required, where for and also in consideration of the special reduced rate of freight, availed of the plaintiff Company executed Risk Notes in Forms A and B exonerating the Railway from all liability. The plaintiff‑Company was also put to the proof of the requisite notices.

4. At the trial the plaintiff ‑Company examined one of its employees (P. W. 1) and officer of Sinclaire Murray (P. W. 2). On the other side the only witness examined was the Train Examiner who checked the wagon, in which the consignment in question was loaded for carriage. The relevant documents also were proved by both the parties and admitted into evidence without any objection.

5. Ultimately the learned Subordinate Judge on a considera tion of the oral and documentary evidence thus brought on the record has held that notices under section 77 of the Railway Act and section 80 of the Code of Civil Procedure had been duly served so that the suit, which was obviously instituted on the expiry of the prescribed period after service of the said notices, was not open to challenge on that ground. On merit, however, he has upheld the defence contention and found adversely to the plaintiff that the consignment, not having been packed in accord ance with the Tariff rules, was susceptible to damage, that had it been packed in terms of the instructions laid down in the Tariff, the damage caused to the goods would not have occurred and that on the evidence adduced, no misconduct on the part of the Railway Administration or its handling staff concerned was established. In the circumstances, according to him, the Risk Notes in Forms A and B executed by the plaintiff‑Company's agent afford full protection to the Railway Administration with regard to the damage caused to the consignment and the latter cannot be made answerable in damages for the loss suffered by the former. He has accordingly dismissed the suit whereupon the plaintiff‑Company has come up in appeal to this Court.

6. Admittedly the consignment was booked on execution of . Risk Notes in Forms A and B. By executing the former it was recognised that the packing was defective. Nevertheless it was open to the plaintiff to show that the said admission embodied in the Risk Note in Form A was not related to fact, and that as a matter of fact, the packing conformed to the requirements of the Goods Tariff Rules. The Chief Executive Officer, Rangpur District Co‑operative Store Ltd. v. The Federation of Pakistan ((1955) 7 D L R 611). In the present instance the plaintiff‑Company has actually adduced such evidence through its employee examined in the case viz. P. W. 1 Md. Ilias. According to him, bundles were first packed in papers and then wrapped by double gunny hessians where after the bales were press‑packed. This has not been challenged in cross‑examination nor any counter evidence too been led to show that the packing was otherwise, i.e., different from what P. W. 1 Md. Ilias has described it to have been like. We, therefore, accept the evidence of the said witness bearing on the mode of packing, i.e., that the bundles were first packed in papers and then wrapped by double gunny hessians and finally the bales were press‑packed.

7. Under the Tariff, goods have been categorised for the purpose of carriage over Railway and specific packing conditions laid down for those coming within each category in Chapter V (not chapter VIII as wrongly referred to by the learned trial Court) of the Pakistan Railways Goods Tariff, Cotton yarn appears to come within the category of piece‑goods, cotton, woollen silk and artificial silk and the packing conditions in respect of these commodities despatched in bales and press‑packed require :‑ "(1) When in bales and press‑packed must be packed in thick paper, then waterproof material and finally covered with double canvas or gunny. The bales irrespective of size or weight must then be tightly secured, undertension, with steel strapping lengthwise and breadth wise. The space between the edges of the binding material used must not exceed 5 in width." It is thus clear from the plaintiff‑Company's own evidence that the packing in this case did not conform to the conditions laid B down under the Tariff.

8. There is really no dispute either regarding the fact of the alleged damage caused to the goods as to the extent of the resultant loss to the plaintiff Company, as assessed on survey by Sinclaire Murray. There appears to be no dispute either that the damage was caused by the damp and rain water though there is serious controversy as to whether that was "due to the gross negligence of the Railway Administration" as alleged in the plaintiff‑Company's pleading, or caused in transit, as pleaded by the defence, on account of the rain‑water entering the crevices of the wagon through the flap‑door in circumstances "beyond the control" of the defendant Administration, which, however, would not have occurred, "had the consignor taken the precaution of covering them (the bales) with double gunny and the iron bands tight." The only piece of evidence in this behalf on the side of the plaintiff Company is the statement made by P. W. 1 Md. Was that "the Rap doors were defective." As against this there is on the record the evidence of D. W. 1 Md. Hanif, who is the Train Examiner of the defendant Railway Administration at Chittagong that he examined the wagon containing the consign ment in question and that the wagon was not defective in any way. He has also offered an explanation as to how the consign ment came to be damaged "in transit" by rain water and it is that "in case of heavy shower of rain water may enter into the wagon through the flap‑doors." In his cross‑examination the witness appears to have further stated that his report did not disclose that the flap‑door was defective nor that the wagon was leaky adding that he would have reported if there was any defect. There is no doubt that the Train Examiner (D. W. 1) is the most competent person to depose as to the condition of the wagon at the relevant time and, as such, his evidence on the point is entitled to greater weight than that of P. W. 1 Md. Illias. We are, therefore, prepared to accept his testimony in this behalf to the extent that there was no structural or other defect of wear and tear in its body so as to admit of leakage; but if by his statement that the wagon was not defective "in any way" he meant also to say that the flap doors had been properly closed, we would find ourselves unable to accept the same or to hold that he made a proper checking or a correct report of such checking. This view we feel pursuaded to take because of two distinct reasons. 1n the first place, the witness has not made a positive statement that the flap‑doors had been properly closed nor does that appear to be really implied either in what he has actually stated. Secondly, his own evidence appears to lead irresistibly to a contrary conclusion in that although he asserted in his examination‑in‑chief that "in case of heavy shower of rain, water may enter into the wagon through the flap‑doors'", he was forced to concede in the course of his cross‑examination that the technical expression "Water and Wind Test" stands for the proper closing of the flap‑door and that when this is done, no water can pass through it. Since rain water has in this instance admittedly entered into the wagon and since the wagon does not appear to have had any structural or other defect admitting of leakage or percolation of water, it must follow that the flap‑doors were not properly closed, which means that there was a dereliction of duty, i.e. negligence, on the part of the defendant Administration's staff concerned.

9. It has already been found that the plaintiff‑Company has failed to prove that although the booking was done on execution of the Risk Note in Form A, thereby admitting inter alia that the consignment was defectively packed, it was in fact packed properly in conformity with the Tariff rules. It can therefore have no escape from its undertaking, as embodied in the said note, i.e., the agreement to hold the Railway Administration `harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administra tion's servants". In addition there was also the Risk Note in Form B, executed on behalf of the plaintiff Company absolving the said Administration in similar terms from all responsi bility "for any loss, destruction or deterioration of or damage to, the said consignment from any cause whatever" in considera tion of the concession availed of in respect of freight, i.e., of having booked the consignment "at a special reduced rate instead of at the ordinary Tariff rate chargeable for such consignment". The immunity given under this Note, save upon proof of mis conduct is subject to two provisions laying down that in cases of (a) non‑delivery of the whole of the consignment or of the whole of one or more packages forming part of the consignment packed in accordance with the instructions laid down in the Tariff and (b) pilferage from a package or packages forming part of the consignment packed as above, the Railway Administration must plead and prove how the consignment was dealt with throughout the time it was in its possession or control before the consignor is called upon to prove misconduct but the present case before us, not being one of non‑delivery or pilferage, does not attract either. So under this Note too, as under that in Form A, or rather under both of them taken together, the plaintiff‑Company, in order to make the defendant Administration legally answerable in damages, has to establish misconduct on the part of the said Administration or its servants. The question falling to be determined, therefore, is whether the dereliction of duty, i.e., negligence on the part of the Raliway Administration, as already found above, is tantamount to such misconduct.

10. Negligence is a negative word and denotes absence o such care, skill and diligence as it was the duty of the person to bring to the performance of the work which is said not to have been performed. It is "the omitting to do something which a reasonable man would do or the doing something which a reason able man would not do". According to the Oxford Dictionary, D the word "misconduct", on the other hand, means besides, "bad management" and "mismanagement", "malfeasance or culpable neglect of an official in regard to his office". Thus if a Railway servant is guilty of some omission or act that is inconsistent with his conduct as such i. e., omits to do something that he is required to do or does something that he should not do and in consequence of such omission or act a consignment made over to the Railway suffers loss, damage etc., that no matter whether intentional or unintentional, is, in our opinion, culpable or gross negligence which amounts to misconduct. This appears to us to be the ratio, decidendi of the decision in Begall Nagpur Railway Co. v. Moolh Sicka & Co. (35 C W N 133), wherein misconduct" was interpreted to denote "any business‑like conduct and to include negligence or want of proper care which a bailee is to take under section 152 Contract Act" and Suhrawardy, J. with whom Paterson, I agreed, observed inter alia :‑ "I am inclined to hold that the word "misconduct" as used in the new Risk Note `B' is wide enough to include wrongful commission or omission, intentional or unintentional, any act which he wrongfully did or wrongfully neglected to do, or to put it in another way, did what he should not have done."

11. There are in fact numerous reported decisions in which different High Courts in the sub‑continent have also taken the same or a similar view. To mention only a few out of such authorities, reference may be made to Secretary of Stare v. Madhuri Dass Narain Das (1933 All. 477), Jarnuna Das v. I.

1. Railway Co. (1933 Pat. 620). and B. B. and C.

1. Railway Co. Ltd. v. Rojnagar Spinning, Weaving and Manufacturing Co. Ltd. (1930 Bom. 129). There are of course a few cases f. e., Banwari Lai Ganganath v, B. B. & C.

1. Railway Co., (61 C L J 526), Southern Marhatta Railway Co. v. Sundarjee Kali Das (57 C L J 281), wherein a different interpretation has been put upon the word "misconduct" and it has been held that even gross or culpable negligence is not enough to constitute misconduct so as to make the Railway Company liable but these appear, as pointed out in B. N. Railway Co. Ltd. v. Haji Latif Abdullah (A I R 1937 Cal. 419), to be based upon the interpretation put upon the English Risk Note, wherein, however, the relevant expression is different, being "wilfulness conduct" as distinct from the term "misconduct" appearing in the Risk Notes in force in this country. For ourselves we are unable to appreciate how the element of intention or wilfulness can be read into these Risk Notes which do not actually make any such qualification or why one causing an injury to another by neglecting a duty cast upon him under the law or rules should not be guilty of misconduct, no matter whether he had or had not the intention to cause such injury. Thus in B. N. Railway Co. Ltd. v. Latif Abdullah just referred to above, it has been held: ‑

"Negligence is not always tantamount to misconduct but it amounts to misconduct in the ordinary meaning of the word, if it involves culpable neglect likely to cause damage, even if it does not involve recklessness."

12. What is thus relevant, according to us, for the purpose of an act of negligence to amount to misconduct, is the element of gravity (grossness) or culpability of the particular act and not intention or wilfulness, or if we may so put it mens rea on the part of the person committing the act. It is true that misconduct denotes a greater degree of wrong than is required for negligence but that greater degree, i.e., the excess requirement, in our opinion, is fully supplied by the element of culpability even irrespective of the question of intention or wilfulness.

13. Now in the present case before us, there was, as already found, omission on the part of the Railway Staff to close the flap doors properly, as required under the "Water and Wind Test" in consequence whereof rain‑water entered the crevices of the wagon through flap‑doors thereby causing damage to the plaintiff Company's consignment. There also appears to be no scope at C all for a hypothesis that such consequence was not or could not reasonably be anticipated, for the simple reason that at the relevant time, as observed by the learned Subordinate Judge, "the rainy season was practically in its full swing" and it was a known fact that the consignment was defectively packed and, as such, susceptible to damage. In our opinion, therefore, it was an ac of gross and culpable negligence which amounts to misconduct within the meaning of the Risk Notes in Forms A and B. The fact that the goods were defectively packed can make no difference inasmuch as that cannot be an excuse for the Railway Staff to cause damage thereto by G culpable neglect of duty. It follows that the defendant Railway Administration is legally answerable for the damage caused toy the plaintiff‑Company's goods and, as such, liable to make good the loss suffered by the latter. In our opinion, therefore, the decision of the learned trial Court dismissing the plaintiff‑Company's claim is liable to be set aside and there must be a decree. In the result, the appeal is allowed with costs, the judgment and decree appealed from are set aside and the suit is decreed on contest with costs. HASAN, J.‑

I agree. S. B./A. H. Appeal allowed.