Rai, J.:— These two appeals arise out of two money suits filed by the same plaintiff-respondent against the defendant-appellant for damages. First Appeal No. 423 of 1950 arises out of Money Suit No. 113 of 1947 which was valued at Rs. 2,400 only. First Appeal No. 404 of 1948 arises out of Money Suit No. 114 of 1947 valued at Rs. 6,432. Both the suits were heard together by Mr. S.M Karim, Sub-ordinate Judge, Dhanbad, and they were governed by the same judgment.

2. Both the suits were decreed with costs. The defendant, Dominion of India, as owner of the East Indian Railway Administration and the Eastern Punjab Railway Administration as it was called then filed two appeals. Against the judgment and decree passed in Money Suit No. 113 of 1947 an appeal was filed before the District Judge of Purulia which was subsequently transferred to this Court and was numbered as First Appeal No. 423 of 1950.

3. First Appeal No. 404 of 1948, however, was filed by the Dominion of India directly in this Court. Both these appeals have been heard together and they will be governed by the same judgment. Both the money suits related to consignment of a number of bags of potatoes from Kendaghat station on the Kalka-Simla line to the railway station Jharia. Money Suit No. 113 of 1947 related to a consignment of 125 bags (250 maunds) of potatoes booked on 14th September, 1946, from Kendaghat to Jharia under receipt No. 40604. Money Suit No. 114 of 1947 related to a consignment of 201 bags (402 maunds) of potatoes booked on 14th September, 1946, from Kendaghat to Jharia under railway receipt No. 39249. Both the consignments reached Jharia station on 1st October, 1946, at about 8 a.m The consignments of both the wagons were unloaded at about 10 a.m and the plaintiff took delivery of the same at about 2 p.m after assessment of the percentage of loss.

4. It appears that when the consignments reached Jharia and were unloaded at the station platform it transpired that some of the potatoes had decayed during transit. According to the case of the plaintiff, 30 per cent, of the consignment which was the subject-matter of Money Suit No. 113 of 1947 had become wholly unfit for human consumption. The plaintiff in Suit No. 113 of 1947 claimed damages at the rate of Rs. 32/- per maund in respect of 75 maunds of rotten potatoes. Thus the claim in that suit amounted to Rs. 2400.

5. The claim made in Money Suit No. 114 of 1947 was in respect of 201 maunds of potatoes which, according to the plaintiff, had become completely unfit for human consumption, and the damage claimed in that suit at the rate of Rs. 32/- per maund amounted to Rs. 6,432.

6. In paragraph 5 of the plaint in Money Suit No. 113 of 1947 the plaintiff charged the Railways concerned with wilful negligence, carelessness and misconduct and the particular charges levelled against the Railways were as follows:

“(i) The consignment was abnormally delayed in the way.

(ii) Potatoes were not properly kept and wagoned keeping in view that they were perishable articles and required proper care and caution in arranging them in the wagon carrying the same.

(iii) Being perishable articles the consignment should have travelled by through trains. The wagon carrying the consignment was not the usual apt and appropriate wagon in which such articles are usually transported.

(iv) It, is further understood that the wagon carrying consignment was not travelled through the usual and wanted route.

(v) The plaintiff reserves his right to argue other grounds of negligence and misconduct which might appear from the records placed by the Railway at the trial and the plaintiff calls upon the Railway to disclose and place on the record all documents and materials showing how the consignment was dealt with throughout the journey from the beginning to the end.”

7. The plaintiff of Suit No. 114 levelled the following charges of wilful negligence, carelessness and misconduct against the railways concerned in paragraph 5 of the plaint:

‘(i) The consignment was abnormally delayed in the way.

(ii) Potatoes were not properly kept and wagoned keeping in view that they were perishable articles and required proper care and caution in arranging them in the wagon carrying the same. It was discovered at the destination that there was cow-dung about 2 inches thick on the floor of the wagon in which the consignment was kept. This had further helped in the deterioration of the potatoes.

(iii) Being perishable articles the consignment should have travelled by through trains. The wagon carrying the consignment was not the usual apt and appropriate wagon in which such articles are usually transported.

(iv) It is further understood that the wagon carrying consignment was not travelled through the usual and wanted route.

(v) The plaintiff reserves his right to urge other grounds of negligence and misconduct which might appear from the records placed by the Railway at the trial and the plaintiff calls upon the Railway to disclose and place on the record all documents and materials showing how the consignment was dealt with throughout its journey from the beginning to the end.”

8. Both the suits were contested by the Governor General of the Dominion of India representing the East Indian Railway Administration as it then was. In both the suits the defendants denied the charges of wilful negligence, carelessness or misconduct as alleged by the plaintiff. It was further pleaded by the contesting defendant that the consignments were booked at owner's risk under Risk Note Forms A, C and Z and that they had been properly loaded in wagons with ventilators and wooden floor.

9. It was also pleaded that the perishable lables had been pasted on both sides of the wagons. The contesting defendant further asserted that there was no undue delay on route as alleged by the plaintiff. In Money Suit No. 114 of 1947 there was a specific denial that there was any cowdung on the wagon floor as was alleged by the plaintiff.

10. The Sub-ordinate Judge held that after the execution of Risk Note C, it was the duty of the Railway Administration to carry the consignments in open wagons and their omission to do so amounted to wilful misconduct on their part, and as such the plaintiff was entitled to the damages claimed. The learned Sub-ordinate Judge, however, held that there was no undue delay during transit on the way due to any negligence on the part of the Railway Administration. On these findings both the suits were decreed resulting in the present appeals before this Court as mentioned above.

11. Learned Counsel for the appellant contended before us that the learned Sub-ordinate Judge had committed an error in holding that the Railway Administration was bound to carry the consignment of potatoes in open wagons, and that they having carried the same in closed wagons had violated the terms of agreement between the consignor and the Railway and had thereby become liable for the damage claimed by the plaintiff.

12. In this connection learned Counsel for the appellant placed before us Risk Note Form C which was executed by the consignor in this case. It may be mentioned at this stage that the present plaintiff was not the consignor of the goods. The consignments had been booked by another merchant and the plaintiff was a subsequent purchaser of the same. The relevant portion of Risk Note Form C (Exhibit B-3) runs thus:

“(To be used when at sender's request, open wagons, carts or boats are used for the conveyance of goods liable to damage, when so carried and which under other circumstances, would be carried in covered wagons, carts or boats)

Kandaghat Station dated 14-9-46.

Whereas the consignment of 201 bags Potatoes tendered by me/us as per Forwarding Order No. 36 of 14-9-46, (date for despatch by the Railway Administration or their transport agents or carriers to Jharia Station under Railway Receipt No. 397749 of 14-9-46) (date) is at my/our request loaded in open wagons, carts or boats to be so carried to destination. I/we the undersigned do hereby agree and undertake, to hold the said Railway Administration and all other railway administrations working in connection therewith, and also other transport agents or carriers employed by them, respectively over whose railway or by or through whose transport agency or agencies the said goods may be carried in transit from Kandaghat to Jharia Station, harmless and free from all responsibility for any destruction or deterioration of or damage to, the said consignment which may arise by reason of the consignment being conveyed in open wagons, carts or boats during transit over the said railway or other railway working in connection therewith or during transit by any other transport agency or agencies employed by them, respectively.

In the event of any interruption of through communication on the booked route due to causes over which the Railway have no control traffic may be carried by the next shortest open route on the conditions applying to the booked route in respect of liability and freight. This Risk Note is equally operative over the route by which the consignment is carried.”

13. I am afraid I am not inclined to agree with the learned Sub-ordinate Judge that after execution of Risk Note Form C the Railway Administration was bound to carry, the consignment in open wagons throughout the route. The direction in Risk Note Form C to the effect

“To be used when at sender's request, open wagons, carts or boats are used for the conveyance of goods liable to damage when so carried and which under other circumstances, would be carried in covered wagons, carts or boats”, simply means that it a covered wagon is not available in which the consignment should have been carried and if the consignor does not want to wait until the arrival of a covered wagon, then goods may be carried in an open wagon at his risk on the terms mentioned in the body of Risk Note Form C. There is no other reliable evidence to prove that the Railway had contracted to carry the consignment in open wagons throughout the route. P.W 1, Lachmi Narain Mahton, who is an employee of the plaintiff, had no doubt deposed: “The Railway had no right to load the potatoes in covered wagons when we had contracted for open wagons”, but the evidence of this witness cannot be of any consequence.

14. In the first place, neither he nor the plaintiff was the consignor; in the second no person on behalf of the consignor has deposed in this case that he had contracted with the Railway Administration for taking the consignment in an open wagon throughout the route. In my opinion, the evidence of P.W 1 on this point is not acceptable. To me it appears that it was merely an improvement, thought of at the time of the hearing of the two suits.

15. The notice under Section 80 of the CPC, (Ext. 1) merely mentioned the unusual delay on the way as the cause of the decay of the potatoes. The plaintiff had mentioned rather in detail the instances of wilful negligence, carelessness and misconduct in Paragraph 5 of the plaint of both suits as quoted above, but it was not even suggested therein that the Railway Administration had contracted to carry the consignments in open wagons throughout the route.

16. The consignments were sent from Kendaghat railway station to Kalka railway station in open wagons probably due to the non-availability of the appropriate type of closed wagons at that time at Kendaghat station and the consignor did not want to take the risk of allowing the goods to remain at that station any more to avoid decay of the potatoes. P.W 1, Lachmi Narain Maliton, had admitted in his cross-examination:

“Potatoes call be kept in godown for a couple of days only in good condition if they are of good quality and would begin to rot after two or three days.”

17. Thus I am definitely of the view that the consignor took the risk of sending the consignment in open wagons from Kendaghat railway station after signing Risk Note Form C, not because there was a contract between him and the railway administration that the consignments were to be carried throughout the route in open wagons but because there was no suitable closed wagon available at Kendaghat railway station at that time in which the consignment could have been sent.

18. I am sorry I am not inclined to accept the argument of learned Counsel for the plaintiff-respondent that after the signing of the Risk Note Form C it was incumbent on the Railway Administration to carry the consignments of potatoes throughout the route in open wagons. From the description of the goods and goods vehicles mentioned at page 1266 of the Indian Railways Act by Ayyar and Raga-swami, 1955 Edition, Volume II, it is quite clear that open wagons were not intended to carry consignments of potatoes.

19. At the time of the hearing of the suits some of the witnesses for the plaintiff such as P.Ws 1, 2, 3 and 4 had deposed that the ventilators of the wagons were closed and in one of the wagons there was some cowdung. The evidence of the plaintiffs witnesses that the ventilators of the wagons in which the potatoes had been loaded had been found closed at the Jharia railway station appears to me to be an after-thought as the same was not mentioned in paragraph 5 of the plaint in either of the suits where alleged instances of negligence on the part of the Railway Administration had been narrated in detail.

20. Nor was it mentioned in the notice under Section 80 of the CPC, (Exhibit 1). Besides this, I am not inclined to place any reliance on the evidence of P.Ws 3 and 4, Abdul Shakur and Durga Sao, who were both unsummoned witnesses. They both claimed to have gone to Jharia railway station after the unloading of the consignments with a view to purchase the same at auction as had been announced earlier by the railway department.

21. Well, if they had been there as they say in Court, they must have been noticed by Lachmi Narayan Mahton, P.W 1, and Sheo Prasad Sao, P.W 2, who both claim to be present at the Jharia railway station when the goods were delivered. Abdul Shakur and Durga Sao claimed to be merchants who deal in potatoes. So was Sheo Prasad Sao and they must be known to each other from before. If these two witnesses had been present there, their presence would have been known to Sheo Prasad Sao and he would have summoned them at the proper time. I am not inclined to believe P.Ws 1 and 2 also on this point.

22. I would now consider the plaintiff's case about the presence of cowdung in one of the wagons in which 201 bags of potatoes which was the subject-matter of Money Suit No. 114 of 1947 had been carried. Paragraph 5 of the plaint mentions that cowdung about two inches thick was found on the floor of the wagon in which the consignment was kept. P.W 1 Lachmi Narain Mahton, on the other hand, deposed that in one of the wagons there was dry cowdung in heaps.

23. P.W 2, Sheo Prasad Sao, also deposed that there was cowdung in one of the wagons and so did P.Ws 3 and 4. But as I have already said that the evidence of P.Ws 3 and 4 is not reliable, I am leaving them out of consideration on this point as well. D.W 2, Inder Raj Sharma, who was at the relevant period posted at Kalka as goods clerk deposed to the effect that there was no cowdung on the floor of either of the two wagons in which the two consignments were transhipped at Kalka railway station.

24. D.W 5, R.C Prasad, who had unloaded the two wagons at the Jharia railway station also deposed to the effect that he did not find any cowdung in the wagons. In this state of evidence I am not prepared to believe that sufficient quantity of cowdung had been left in one of the wagons which contributed to the decay of the potatoes carried in that wagon. At one stage of the argument learned counsel for the plaintiff had suggested that the presence of cowdung was responsible for greater percentage of decay in that wagon.

25. This argument was based on the difference in percentage of decay mentioned in both the suits. In money suit No. 113 of 1947 the plaintiff claimed that 30 per cent, of the consignment had decayed while in money suit No. 114 of 1947 50 per cent, of the potatoes were alleged to have decayed. In my opinion, there is no force in the argument of learned counsel for the plaintiff.

26. Though in money suit No. 113 of 1947 30 per cent of the potatoes was alleged to have decayed, the Damaged Goods Return (exhibit D), curiously enough, mentioned “Received 125 bags potatoes in deteriorated condition assessed by S.M.T.R and loss estimated 50 per cent, in presence of C.T.I No. 2 Rs. 30 per maund.” The Damaged Goods Return in the other case (exhibit D-1) also estimated 4 the same percentage of damage. Thus according to the reports (exhibits D and D-1) equal percentage of damage had been caused in the consignments of both the wagons.

27. There could be, therefore, no extra damage due to the presence of some cowdung in one of the wagons. I agree with learned counsel for the appellant that the plaintiff is not entitled to any damage on this ground.

28. I may, however, mention that I am not prepared to place any reliance on the Damage Reports as mentioned in exhibits D and D-1. It surpasses one's conception how the officers concerned showed, an approximate damage of 50 per cent, when-the plaintiff himself asserted that the damage was only to the extent of 30 per cent.

29. Mr. Srivastava, who appeared for the plaintiff-respondent, challenged the finding of the learned Sub-ordinate Judge to the effect that there was no undue delay in the arrival of the wagons at Jharia. In this connection he referred us to paragraphs 6 and 9 of the written statement of defendant No. 1 in both the suits, and also to the evidence of D.W 4 who had said that a wagon going by an express through train would take about ten days from Kalka to Jharia. The wagon relating to suit No. 114 of 1947 left Kalka on the 16th of September, 1946, and the wagon relating to suit No. 113 of 1947 left Kalka on the 17th of September, 1946.

30. From the written statement of defendant No. 1 it appears that both the wagons were detached at Moradabad railway station and remained there for about two days. Mr. Srivastava urged that when the wagons were attached at Khanalpura railway station to 212-A down Fast Goods Train, there was no justification why they should have been detached from that train at Moradabad and after two days taken to Lucknow by another goods train. Mr. Srivastava thereafter placed before us paragraph 163-A of the standing orders of the Operating Department of the railway which runs as follows:

“Potatoes — Wagon containing potatoes should 1 be despatched by Fast Goods or Mixed Trains. The despatching station shall wire to all junctions and engine changing stations, N route to push the wagon off by connecting trains.”

31. He submitted that in spite of this imperative direction the servants of the Railway Department without any rhyme or reason detached the wagons from 212-A down Fast Goods Train and detained them at Moradabad for two days and sent them further down by an ordinary goods train. According to Mr. Srivastava, this in itself amounted to ‘misconduct’ on the part of the Railway Administration. In support of his contention Mr. Srivastava relied on the decision in the case of Dominion of India v. Rupchand Heerachand, AIR 1953 Nag 169 (A).

32. In that case a consignment of potato-seeds had been booked from Biharsharif railway station on B.B Light Railway to Bordehi, a station on the G.I.P Railway. The consignment had reached Bakhtiarpur junction on the same day but was not transhipped in a broad gauge wagon until the 28th of September, 1944. On its way the wagon was unnecessarily delayed for about seven days at Etarsi. According to the calculation made by the learned Judges who decided that case, there was an unusual delay of about, two weeks in reaching the consignment to its destination.

33. It was also held in that case that the potato was not carried in a proper type of wagon with caution label etc. which also had contributed to the delay during the transit. The learned Judges had in that case relied on a single Judge decision of this Court in the case of Jamunadas Ramjas v. E.I Rly. Co. Ltd., AIR 1933 Pat 630 (B), wherein Jwala Prasad, J., had held: “Misconduct would ordinarily mean failure to do what is required of a person to do.” The learned Judges of the Nagpur High Court also were of the view that want of proper care and caution may amount to misconduct within the meaning of risk note B. Mr. Srivastava thus supported the decree passed by the Court below though on another ground.

34. Learned counsel for the appellant, on the other hand, contended that as it was not a case of non-delivery within the, meaning of the expression used in Risk Note Form Z (Ext. B-4) which is the same as Risk Note Form B, the Railway Administration was not bound to disclose how the consignment was dealt with throughout the time it was in possession and control of the Railway Department. He further submitted that it was the duty of the plaintiff to have asked the witnesses for the defendant as to why the wagons were detached at Moradabad for about two days.

35. Learned counsel for the appellant further submitted that it is not possible to infer from the evidence on the records of this case that the goods train to which the wagons were attached at Moradabad and Lucknow were not Fast Goods Trains. He further contended that the consistent view of this Court is rather different from what has been laid down in the case of AIR 1953 Nag 169 (A) with respect to the meaning of the word ‘misconduct’ as used in Risk Note Form B or Risk Note Form Z.

36. In support of his contention learned counsel relied on a Division Bench decision of this Court in the case of The Governor-General in Council v. Jamuna Das Agarwala, ILR 27 Pat 301 : (AIR 1949 Pat 119) (C), where Sinha, J., with whom Mahabir Prasad, J., had agreed, following the decision of a Division Bench of the Calcutta High Court in the case of Ralliaram Dingra v. Governor-General of India in Council, 48 Cal WN 554 : (AIR 1946 Cal 249) (D), where their Lordships of the Calcutta High Court had held as follows:—

“Misconduct on the part of the Railway Administration or its servants contemplated by Risk Note Form B under the Railway Act is not synonymous with negligence; for an act to amount to misconduct there must be a greater degree of wrong than is required for negligence. Misconduct is something in the nature of improper behaviour and is not merely wrongful commission or wrongful omission. An act of misconduct can well be negligence, but a negligent act by itself is not misconduct. Misconduct involves the passing of a moral judgment on the part of the person concerned however slight may be the lapse from rectitude which provokes it.”

37. Their Lordships had expressed the view that Jwala Prasad, J., had laid down the law too widely while deciding the case of AIR 1933 Pat 630 (B). This decision was followed by another Division Bench decision of this Court in the case of Gopalram Ramdas Registered Firm v. Union of India, S.A No. 2153 of 1948 (E), decided by Das and Banerji, JJ., on the 20th of July, 1954. In that case Das, J., had observed as follows:—

“It is now well settled that misconduct is not synonymous with negligence. Any and every omission of duty or want of care on the part of the servants of the Railway Administration does not amount, to misconduct. Misconduct is something more than mere negligence. It is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result may be.”

38. In my opinion, the contentions raised on behalf of the appellants are well founded in law and must prevail. Whether the railway administration is guilty of ‘misconduct’ or not really depends on the facts and circumstances of each case and it is not possible to lay down any hard and fast rule by which every case is to be judged. In my opinion, Das, J., has correctly held that ‘misconduct is something more than mere negligence, and that it is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result may be.’

39. In the present case, however, it is not possible for me to hold that the detachment of the two wagons at Muradabad for about two days amounted to ‘misconduct’ on the part of the Railway Administration. Nor am I prepared to hold that the goods trains by which the wagons were despatched from Muradabad onwards up to Moghalsarai were ordinary slow going goods trains.

40. In the case of AIR 1953 Nag 169 (A), potato-seeds were unduly detained for two weeks at different stations during the transit. Such a delay may in certain circumstances amount to a reckless act on the part of the Railway Administration not caring for the result it may entail.

41. As posted at present, I am not prepared to hold on the evidence on record that the Railway Administration was guilty of any misconduct.

42. I would, therefore, set aside the judgment and decree passed by the learned Sub-ordinate Judge in both the suits and allow these appeals with costs throughout payable by the plaintiff to the defendant-appellant.

43. Misra, J.:— I agree.

G.M.J

44. Appeals allowed.