The petitioner is the South Indian Railway Company. This petition is to revise an order of the District Munsif of Udumalpet awarding damages to the plaintiff for the loss caused to him on account of rain leaking into the wagon, as a result of which 15 bags out of the 141 bags of rice consigned to him were found wet. The defendant company claimed exemption from liability for the damage caused as the goods were sent under the Risk-note Form H. Under this contract the Company will be liable if it is proved that the damage was caused on account of the ‘misconduct’ of the Railway department or its servants. The question is whether there has been such misconduct as is contemplated by the Risk-note Form in this case.
It is admitted—see D.W 1—that the bags of rice became wet on account of the rain blowing into the wagon through the crevices of the doors; but there is evidence that the wagon in Which the goods were despatched was found water-tight at the last periodical examination on 1st July 1930, and also when it was re-examined on 12th November 1931. It was between these dates that the goods were carried by the Company.
In M. & S. M. Railway Company v. Sundarjee Kalidas it was pointed that “misconduct is not necessarily established by proving even culpable negligence. It is something opposed to accident or negligence and is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the results may be.” In Bombay Baroda and Central India Railway Co. Ltd., v. Rajnagar Spinning, Weaving and Manufacturing Company it was held that the word ‘misconduct’ suggests “that a railway servant has been guilty of doing something which was inconsistent with the conduct required of him by the rules of the Company.” In the absence of proof that there was any breach of duty by the railway servants or any infringement of the rules which regulate their terms of employment, no fair inference of misconduct on the part of the railway administration's servants could properly arise. Having regard to these decisions, and the evidence in the case which shows that there was no negligence on the part of the Railway Company as the wagon in whieh the bags were sent was water-tight, it is difficult to hold that misconduct on the part of the railway department or its servants has been proved.
But in a case in Jamunadas Ramjas v. East Indian Railway Company , which is very similar to the present case on the facts, it was held that ‘misconduct’ was proved. In that case misconduct under Risk-note Form H was construed to mean “failure to do what is required of a person to do.” “Failure to provide against such ordinary contingency such as rain water forcing itself into the wagon and causing damage to grain” was construed to be misconduct in that case. This case entirely supports the respondents. The learned Judge observed “that the fact that the rain water did enter the wagon and cause damage to the plaintiff's consignment is itself sufficient to show that proper and requisite precautions were not taken by the railway department to provide against such contingency.”
Having regard to the facts of the present case I am unable to follow the above decision. The Railway Company have done all that they could. They could not do more than what they did, viz., provided a water-tight compartment for carrying the bags. The damage that was caused was clearly the result of an accident and not misconduct on the part of the Railway Company. I would therefore set aside the lower Court's decree and dismiss the plaintiff's suit with respect to both his claims. In the circumstances each party will bear its own costs throughout.
N. R. R.Appeal allowed.