JUDGMENT
Mukherji, J.
1. The suit which has given rise to the appeal was for recovery of damages for non-delivery of a package of cotton piecegoods which, together with ten such packages, formed a consignment which was dispatched to the plaintiffs at Raniganj, a station on the E.I. Ry., from Aserva, a station on the G.I.P. Ry. The two railway administrations were made defendants in the suit. The Munsif decreed the suit against the E.I. Ry., only, but on appeal preferred by the said defendant the Subordinate Judge reversed that decision and dismissed the suit. The plaintiffs have preferred this second appeal.
2. The Subordinate Judge held that though the consignment was covered by a Risk-note in form B the railway was not absolved as the case came within the exception mentioned in the Risk-note, that the loss was due to theft by railway servants or by outsiders, and that if it was due to theft by outsiders there was wilful neglect of the Railway Administration or the railway servants. He held, however, that the notice of claim that was served under Section 77, Railways Act, was not valid and so he dismissed the suit.
3. The appellants’ contention is that the learned Subordinate Judge has erred in law in holding against the validity of the notice, and that if this contention be accepted the appellants, on the other findings of the learned Subordinate Judge, would be entitled to a decree.
4. Now as regards the validity of the notice, what has been found is this : In the said notice every particular was correctly stated except the name of the station from which the consignment was dispatched, instead of Aserva which was the correct name, Ahmedabad was mentioned. The Subordinate Judge has expressed the view that Section 77 of the Act
requires that the notice must be such as would enable the Administration to see at once the identity of the consignment without further enquiry at other station or stations.
5. The section, however, prescribes no such thing, and it is always a question of fact to be determined in view of the circumstances of each particular case whether the notice is sufficient or not. The defendants never raised this question in their pleadings and contented themselves with a denial of the service of the notice. In these circumstances it is not possible to say that the notice was not adequate and in view of the pleadings the question of its adequacy can hardly arise. The finding of the Subordinate Judge in respect of this matter must accordingly be reversed. As already stated the appellants’ contention is that with the reversal of this finding he would be entitled to a decree. With this contention I do not agree, for several other questions will now arise which will have to be considered and discussed.
6. The respondents have argued that the case does not come within the exception mentioned in the Bisk-note as there was no loss of a complete package, the gunny covering of the package not having been stolen. They rely upon several decisions most of which relate to cases of loss of ghee or oil contained in cans or tins, in which there was wholesale abstraction of the contents, but the receptacles were delivered. Of them may be mentioned the cases of Moheswar Das v. Carter (1884) 10 Cal. 210, E.I. Ry. v. Shib Prosad Bhakat (1913) 17 C.W.N. 529, E.I. Ry. Co. v. Nilkanta Roy (1914) 41 Cal. 576, Toonya Ram v. E.I. Ry. Co. (1903) 30 Cal. 257, Kali Das v. E.I. Ry. Co. (1917) 21 C.W.N. 815, B.B. & G.I. Ry. v. Ambalal Sewaklal High Court decisions of Ry. Cases 48, Mulji v. S.M. Ry. Co. (1904) 14 M.L.J. 396. It is not profitable to discuss these cases individually as the argument, so far as this matter is concerned is based1 upon a misconception, what was found by the learned Subordinate Judge was that on one particular date the chaukidar who was in charge of the goods yard and who first noticed the loss saw that the contents of the package were gone and only the gunny covering was left, but there is nothing to show that even that gunny covering was delivered to the-plaintiffs or tendered for delivery. There was therefore loss of one complete package so far as the plaintiffs are concerned. Perhaps, the true view to be taken of the matter is what Fletcher, J., said at the conclusion of his judgment in the case of E.I. Ry. Co. v. Nilkant Roy (1914) 41 Cal. 576, namely that
it is impossible to say that there was loss of complete packages when such material portions of the packages as the tins were delivered to the consignee.
7. The view that there is no loss, whatever happens to the contents, if the character of the package as such is unaffected by damage sustained by its outward envelope alone, did not find favour with the learned Judges of the Madras High Court in the case of M. & S.M. Ry. Co. v. Subba Row (1920) 43 Mad. 617. Referring to the Bombay and Calcutta decisions on which the respondents rely Seshagiri Ayyar, J., said in that case:
The Bombay and Calcutta cases do not discuss the matter and it seems to me that they have put too narrow a construction upon the expression “loss.” I am inclined to the view that the term “loss” should be construed as including cases where the article consigned is lost to the consignor as such article.
8. As at present advised this view is one that commends itself to me. But as already stated the question does not arise and I shall not discuss it any further, nor express any definite opinion.
9. Then as regards the merits the finding of the learned Subordinate Judge is worded thus:
The circumstantial evidence proves that the loss was due to theft of railway servants or in case of theft by outsiders such theft was the effect of wilful neglect of the Railway Administration or railway servants.
10. This finding is defective as well as bad and for the reasons to be presently mentioned. All that need be said of the facts is that the consignment came to Jhajha station on the E.I. Ry. on the morning of 18th December 192L from which date to 2nd January 1922 there was a general strike of the menials on the railway and the bale in question was stolen by somebody during this period. For the case to fall within the exception one of two things will have to be proved either that the loss was due to theft by servants of the Railway Administration or that the loss was due to wilful neglect on the part of the Railway Administration or its servants. The words in the risk-note are:
Except for the loss, etc…due either to wilful neglect of the Railway Administration or to theft by or to the wilful neglect of its servants etc.
11. In the risk-note, properly read, theft by outsiders has no place except as loss due to wilful neglect on the part of the Railway Administration or of its servants. The ‘onus of bringing the case within the exception, and of establishing wilful neglect is on the plaintiffs H.C. Smith v. G.W. Ry. (1922) 1 A.C. 178, Sheobarat Ram v. B.N.W. Ry. Co. (1912) 16 C.W.N. 766, E.I. Ry. v. Kanak Behari (1918) 22 C.W.N. 622, E.I. Ry v. Jagpat Singh , E.I. Ry. v. Nathumall Behari Lal (1917) 39 All. 418, E.I. Ry. Co. v. Sriram Mahadeo A.I.R. 1924 All. 177. On the materials that are on the record the Subordinate Judge has not been able to to find affirmatively ‘that the loss was due to theft by railway servants. He has only found that the theft was either by railway servants or by outsiders. This finding will help the plaintiff in bringing the case within the exception if only he can show that the theft was due to wilful neglect on the part of the Railway Administration or of its servants. Dealing with the question of wilful neglect the Subordinate Judge has said a good deal to which it will be necessary to refer presently but there is one clear finding of fact which he has recorded in this connexion and which in my opinion is sufficient to establish neglect. That finding is to the effect that the wagon was not padlocked. Whether padlocking would have been a sufficient preventive for theft in view of the circumstances of the case is a somewhat difficult question, but that this omission facilitated the theft is scarcely to be doubted and it is therefore clear that there was neglect and the loss is, partly at any rate, du8 to such neglect. The question, however, is whether this neglect was “wilful.” The Judicial Committee has in a very recent case explained the expression “wilful neglect” in accordance with the meaning given to it by Lord Russel, in R. v. Senior (1899) 1 Q.B. 288 as meaning
that the Act is done deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it : Ardeshir Bhicaji v. Agent G.I.P. Ry. Co. A.I.R. 1928 P.C. 24.
12. The question then is whether this neglect or any neglect that may have been proved was “wilful” within the aforesaid meaning. The other findings of fact from which the Subordinate Judge has concluded that there was “wilful neglect” and to which reference will presently be made in another connexion do not help us in answering this question.
13. If on a consideration of the materials on the record and the circumstance of the case it is possible to arrive at the conclusion that there was “wilful neglect” on the part of the Railway Administration or of its servants the case will come within the exception. But a further question will then arise, namely, as regards the measure of responsibility of the Railway Company for the loss that has taken place. That measure is laid down in Section 72, Railways Act. Whether the loss was due to theft by railway servants or by outsiders, the Administration is not responsible if they have fulfilled the requirements of Section 151, Contract Act. The finding of the Subordinate Judge, however, suggests, that, in the case of theft by railway servants the Administration is ipso facto liable. This view is not tenable. To establish the position that the standard of care required by Section 151, Contract Act, was not adhered to reliance has been placed on certain findings of the Judge on the question of “wilful” neglect. The learned Subordinate Judge has said in his judgment;
There is no evidence to show that the strike was an unexpected one. The defence does not mention the strike in its written statement. A strike was refusal of the servants of the Railway Administration to work when they were still servants of the Administration and legally bound to be taken to task for such conduct without notice and without terminating service lawfully those menials were liable for damages. Any refuse of such menials to guard the wagon amounted to wilful neglect of the servants of the East Indian Railway Company. There is nothing to show that the strike was not the result of unfair or tactless attitude of the Railway Administration. Mostly injustice or want of t Act drives poor menials to strike in India.
14. If this finding of “wilful neglect” is to have any bearing on the question whether the requirements of Section 151, Contract Act, have been complied with or not, it is clear to my mind that it is vitiated as it has proceeded upon a confusion of ideas which is the result of mixing up how the Administration should have behaved towards its servants with how the Administration should have dealt with the goods. As far as I can make out these findings were not meant to refer to Section 151, Contract Act, at all. A proper finding as regards that section will, therefore, have to be arrived at.
15. The result is that the appeal will succeed and the decree of the Subordinate Judge being set aside, the case will be sent down to his Court so that he will in the first place come to a finding on the question
whether the loss was due to wilful neglect on the part of the Railway Administration or its servants.
16. If he answers this question in the affirmative the defendants will not be protected by the risk-note and it will be necessary for him to decide a. further question that will arise and which in the words of Section 151, Contract Act, may be formulated thus:
Whether the Railway Administration took as much care of the lost package as a person of ordinary prudence would under similar circumstances take of similar goods of his own.
17. In determining this question he will not take it that we are in any way approving of the suggestion to be found in the judgment under appeal and which is to the effect that the strike was not an unexpected one, but should hold that the strike was an unforeseen event unless he finds evidence on the record for comming to a contrary conclusion. Costs will abide the result.
18. As regards the Bombay Baroda and Central India Railway Company the appeal is dismissed; and the said respondents will be entitled to their costs in the appeal.
Cuming, J.
19. I agree.
