Authored By : Gentle, G.D. McNair

Gentle, J.

1. The plaintiff is the proprietor of a carnival fair knownas the American Variety Show. The equipment included a merry-go-round which wasconstructed mainly of wood. The Governor-General of India in Council is theresponsible authority for the East Indian Railway, hereinafter called TheRailway, and is sued as defendant 1 in that capacity. Defendant 2, CaptainGeorge Edwards, was associated with the plaintiff in the American Variety Show,his actual position is not clear. Apparently, he was unwilling to be aplaintiff in the suit and in consequence was made a defendant. In the suit andin the appeal he has been treated as if he were the plaintiffs agent and hemay be so considered. Some letters passed between Captain Edwards and the NorthWestern Railway which can be treated as having taken place between theplaintiff and the East Indian Railway. Captain Edwards also signed three risknotes, the terms of which will require consideration.

2. The claim is for Rs. 36,738 as the value of theplaintiffs property, including the merry-go-round equipment, which wasdestroyed by fire whilst it was being carried by the Railway. Ameer Ali J.dismissed the plaintiffs suit against which the present appeal is preferredand the Railway has filed a memorandum of cross-objections against the findingswhich are in favour of the plaintiff. In April 1938 the Variety Show concludedat Delhi and was due to be at Dehra Dun. Railways provide concession or cheaprates to entertainment undertakings for carriage of property and personnel. On14th April Captain Edwards applied in writing for concession rates for fivewagons and ten members of the Variety Show from Delhi to Dehra Dun. The Railwayreplied on the same day, granting the application, and on the back of theirletter the rates are printed. The material portion is to the effect thatluggage and properties accompanying the party will be carried at a rate ofeight annas per mile per vehicle when the property is booked in a separatevehicle, and that all luggage, baggage, etc., charged at concession rates willbe carried at owners risk, and reference is made to Risk Note B.

3. On 21st April, Captain Edwards loaded the Variety Showequipment at Delhi. It was packed in three covered wagons and one open truck,the merry-go-round and other articles being in the open truck, which wascovered by a tarpaulin supplied by the railway authority. A sum of S3. 420 waspaid for the transport charges. The personnel included the plaintiff andCaptain Edwards, and two first class tickets and six second class tickets athalf the ordinary rate and four inter class tickets were issued for the partytravelling. The inter class tickets were charged at the rates payable inrespect of third class mail fare. The truck and wagons were attached to therear of No. 33 up duplicate passenger train in which the members of the partytravelled, and left Delhi at 11 P. M. The next day, 22nd April, at about 11 A.M. the train arrived at Hardwar from where the members of the party continuedthe journey in the same or in some other passenger train to Dehra Dun. Thetruck and wagons were detached and were recoupled to an 18 wagon goods train,the open truck being next to the engine and the three covered wagonsimmediately behind the truck. The goods train left Hardwar at 1-25 P. M. Aboutan hour later the open truck was seen to be on fire near Doiwalla. The trainwas stopped on a bridge passing over a river. Attempts were made to extinguishthe fire without success. About 5 oclock the truck was detached and drawn byan engine to Doiwalla where the fire was finally extinguished at about 11oclock at night. Everything in the truck, which was made of wood, wascompletely destroyed. The load included 200 tin sheets and some other metalarticles which doubtless comprised the salvage subsequently sold for Rs. 267.

4. In his first report to the railway, the Station Master ofDoiwalla gave as the nature and cause of the accident "fire due to sparkof engine." Subsequent reports by the Station Master, and by the Guard andthe Driver of the train, state that a tin was found containing enough petrol(one report states K or kerosene) which caused the fire. In the writtenstatement it is alleged that the fire was caused by the negligence or thecontributory negligence of the plaintiff by placing petrol among the articlespacked in the truck. The Station Master, the Guard and the Driver were notcalled to support the story which they had included in their reports. If therehad been a tin containing petrol or kerosene in the truck, assuredly thecontents would have been consumed. It was not suggested to Captain Edwards norto the plaintiff in cross-examination that a tin containing petrol or otherinflammable liquid was packed in the truck. The written statement also containsan allegation that a "Custer" car, which is a small engine vehicleused in connection with the variety show, contained petrol when packed in thetruck. The plaintiff denied this in examination-in-chief and he was not cross-examinedabout it, nor was any question about it put to Captain Edwards when he wasunder cross-examination. There is no evidence that the car contained petrol,and, in my view, it clearly did not do so. There is no substance in thesuggestions regarding petrol or paraffin, either in a tin or in a"Custer" car, having been packed in the truck. A suggestion was madeon behalf of the railway that the cause of the fire was bad packing of thecontents by the plaintiffs employees and that some loose metal objects wereplaced in the truck which were oscillated during the journey and striking eachother caused sparks (which have been called "friction sparks") andthese started the fire by coming into contact with the wooden articles in thetruck. The only evidence regarding packing was given by the plaintiff inexamination-in-chief. He said that corrugated iron sheets were placed at thebottom of the truck, then poles, rods, galleries, stalls and other materialswere put on the sheets, and the "Custer" car on the top of the loadwhich was covered by a tarpaulin supplied by the railway. The plaintiff saidthat at the time of the packing a railway officer was present, who inspectedthe loading four or five times. The plaintiff was not cross-examined about thepacking and it was not suggested either to him or to Capt. Edwards that thetruck was not properly packed. No evidence was called on behalf of the railwaythat the truck was wrongly or negligently packed, nor that metal articles, ifloosely packed, would create sparks sufficient to set fire to the wooden thingsin the truck if they rubbed against each other during the journey. Further, theevidence of the plaintiff that a railway official inspected the loading was notcontradicted, and there is no reason why it should not be accepted. Theinspections must have been for the purpose of seeing the truck was properlypacked, and if this was being done in an improper manner, exception would havebeen taken to it. The suggestion that the truck was not correctly packed andthat fire was caused by friction sparks due to defective packing is no morethan the outcome of vivid imagination.

5. The cause of this fire, as in the case of many fires,must be a matter of some conjecture, since no one, as far as the evidence goes,saw the commencement of the outbreak. The learned trial Judge expressed theview that it is a reasonable inference to draw from the facts that fire wascaused by a spark from the engine. This cause was given by the station masterin his first report to the railway. The admissibility of the whole of thisreport as evidence may be doubtful. The station master was not present untilthe truck load was well alight, and he does not say whether the cause which hegave was his inference or opinion or whether he was informed of it by some oneelse. In (1886) 10 P. D. 137 The Solway (1886) 10 P. D. 137 : 54 L. J. P. 83 :53 L. T. 680 : 34 W.R. 282, the report of a shipping disaster by the master ofa ship to his owners was made in the course of his duties, and the statementsin it were held to be admissible so far as they related to what the reportstated the master saw and did and what orders he gave, but not any opinionwhich he expressed in it. The report of the station master was clearly made inthe course of his duty and no objection is taken to the statements in itrelative to what he saw and did. If he was told by a third person that a firewas caused by an engine spark, then the statement in the report is no more thanhear-say, and again if the statement is the result of his own inference, itamounts no more than to his opinion.

6. There was one other suggestion made on behalf of therailway, during the hearing of the appeal, as to the cause of the fire, namely,that it might have been a spark from a source other than from the engine. Therewas no evidence at all that the engine passed any spot from where a spark couldblow into the truck. In my view this suggestion can be dismissed.

7. As is not surprising to find, since no evidence wascalled by the railway or indeed by the plaintiff regarding sparks being emittedfrom engines, the learned Judge desired to have some information upon thisquestion. Mr. A. H. Baker an official in the service of the railway, was made acourt witness by the learned trial Judge. His evidence did not expressly relateto the cause of the fire to the plaintiffs goods, but was more generalregarding sparks which are emitted from railway engines. The substance of histestimony so far as it concerns this case is as follows :

8. There are certain inclinations of the track betweenHardwar and Dehra Dun; more sparks emanate when an engine travels up-hill;there is no railway rule or regulation that it is either proper or improper toplace an open truck next to an engine in a goods train; timber is notinflammable, (that is, it is easily set alight) but it is combustible, (thatis, it is capable of burning); timber is not included in the list ofinflammable or dangerous goods, such as dynamite, matches and petrol, whichR.134 of the East Indian Railway Manual provides should preferably be placed atthe end of a train away from the locomotive; rail sleepers are made of wood andrailways do not hear of them catching fire from sparks; the risk from enginesparks is away, that is to say, some distance, from the engine, because theyare blown into the air and it takes some time for them to come down; sparks aremore likely to affect the fourth or the fifth wagon from the engine; providedsparks could get there the first wagon is the most dangerous; and wagons withinfifteen to twenty from the engine are in the danger zone.

9. Now, the suggestion in the reports of the Station Master,the Guard and the Driver that a tin containing petrol, the suggestion that the"Custer" car containing petrol, or the theory that friction sparks orsparks from an unknown and indeterminate source might have been the cause offire, being suggestions and a theory which have no substance, there is nothingleft save that which the plaintiff alleges and has alleged throughout, namely,that the fire was caused by a spark or by sparks emanating from the engine. Noother cause can be said to have been reasonably probable. The plaintiffs casethroughout has been that the fire was started by engine sparks falling on theopen truck. The testimony of Mr. Baker leads to the conclusion that enginesparks could have caused the fire. I agree with the conclusion to which thelearned trial Judge arrived that this fire was caused by spark or by sparksemitted by the engine and which fell upon the open truck.

10. The cause of the fire having been established, it is nowfor consideration whether the Railway is under any liability to the plaintiffin respect of the loss occasioned by his goods being destroyed by the fire.

11. The whole consignment was carried at a rate lower thanthe usual charges; in respect of the consignment Captain Edwards signed threerisk notes on behalf of the plaintiff, the conditions in which formed the termsof the contract or contracts between the parties. These are known as Bisk NotesA, B and C.

12. Risk Note A applies to goods which are either in a badcondition or liable to damage, leakage or wastage or to badly or inadequatelypacked goods. The risk note in question relates solely to goods in badcondition and/or those liable to damage, leakage and wastage, no referencebeing made that there were goods inadequately packed. Since there is noevidence and there has been no suggestion that any of the goods which weredestroyed by fire covered by risk note "A", in my view reference toit is not called for.

13. Risk Note "B" covers the whole consignment. Itprovides that in consideration of the goods being carried at a lower charge,the plaintiff agreed and undertook to hold the Railway harmless and free fromall responsibility from any loss, destruction or damage to the consignment fromany cause whatever except upon proof that such loss, destruction or damagearose from the misconduct on the part of the Railway or its servants.

14. Risk Note "C" relates to goods carried in theopen truck, and is a form used when at the senders request the consignment ispacked in an open truck. It provides that the plaintiff agreed and undertook tohold the Railway harmless and free from all responsibility for anydeterioration of or damage to the consignment which might arise by reason ofthe consignment being conveyed in open wagons during transit.

15. In other words, the whole consignment was carried at theplaintiffs risk, save upon proof of misconduct, and also that part of the consignmentwhich was in the truck was carried entirely at the plaintiffs risk in respectof destruction or damage arising from their being carried in an open wagon.

16. It is first convenient to deal with the questionsarising with regard to risk note "C".

17. I desire to point out that, from the terms of the note,it is clear that the goods were carried in the open truck at the plaintiffsrequest. The consignment note purports to exempt the Railway from allresponsibility for any damage to the consignment which might arise by reason ofits being conveyed in an open wagon.

18. On behalf of the plaintiff it was argued that risk note"C" does not exempt the Railway from liability for negligence ormisconduct inasmuch as no reference is made to such exemption and in order thatthe Railway should escape liability from the consequences of negligence ormisconduct, either of itself or its servants, the risk note should expressly soprovide for it. In support of this contention reliance was placed upon two decisionsof the Courts in England: (1903) 1 K. B. 750 Price & Co. v. UnionLighterage Co. (1903) 1 K. B. 750 and (1891) 1 Q. B. 619 Steinman & Co. v.Angier Line Limited (1891) 1 Q.B. 619: 60 L. J. Q. B. 425: 64 L.T. 613 : 39 W.R. 392. The substance of these decisions, one in regard to a Railway and theother in regard to a ship, is that in the absence of any express reference toexemption from liability for negligence, misconduct or the like, the Railwayand the Ship owners were not exempted when damage was caused by the negligenceof the principals servants. In my view those cases are not in point in thepresent instance. By the Common Law of England a Railway and owners of a shipare common carriers. The liability of common carriers, save for exceptions suchas Kings enemies and acts of God, is that of "Insurers." There isand always has been a reluctance to exempt a common carrier from his ordinarycommon law liability.

19. If he wishes to exempt himself from his liability thenthe Courts have held he must do so in terms which allow of no ambiguity, and inthe cases to which reference has just been made, the Railway and the Shipowners concerned were common carriers and the contracts which were the subjectin each of those cases exempted the carriers from liability but went no furtherthan using words which were somewhat general and did not include negligence ormisconduct. In consequence the decisions given were that no liability wasexempted in regard to negligence or misconduct. Railways in India are notcommon carriers; this is made manifest by the provisions of S. 72 (iii) of theIndian Railways Act. They are, therefore, in the same position as carriers inEngland who are not common carriers but of course, they are subject to specialstatutory enactments, rules and regulations. It is clear from (1926) 1 K. B.102 Fagan v. Green and Edwards Ltd. (1926) 1 K. B. 102 : 95 L. J. K. B. 363 :134 L. T. 191 that a carrier who is not a common carrier, can exempt himselffrom liability in respect of his servants negligence although not expresslydoing so in the terms of the contract. The above case concerns a company whosebusiness was that of furniture removers. Clause (5) of the contract with theowners of goods which were carried provided that it would not under anycircumstances be responsible for any article which should exceed the value of10 and would not under any circumstances be responsible for the contents ofchests, boxes and packages unless properly secured. At page 110, Horridge J.expressed the view that it was clear on the authority of a case to which hereferred, that the words "under any circumstances" covered thenegligence of the defendants, that is to say, the carriers servants, and thattherefore they were protected although the loss was occasioned by thenegligence of the servants.

20. In regard to risk note "C" Mr. Das Guptacontended that loss caused by the negligence or misconduct of the Railway isnot excepted by the provisions in the risk note. Railways in India are notliable as common carriers, but they have, as is clear from S 72 of the RailwaysAct to accept the responsibility placed upon bailees by Ss. 151 and 152 of theContract Act which require a bailee to take as much care of the goods bailed tohim as a man of ordinary prudence would exercise. As I understand it, thatmakes a bailee liable for negligence or may be for some more serious wrong Risknote "C" must exempt the Railway from some liability. If it did notexempt them, as was contended, against loss occasioned by servants negligence,then I can see nothing which is [covered by risk Note "C." In my viewthis risk note does exempt the Railway from loss caused by its servantsnegligence or misconduct but to a limited extent, namely, to loss which mayarise by reason of the consignment being carried in the open wagon. It does notexempt them from all responsibility. I will explain this by an example. A traincomposed of open trucks and covered wagons collides, through the negligence ofa servant of the Railway and the whole freight in the train is damaged. Inrespect of the open trucks the Railway is covered by risk note "C",which, in that case, would not save the Railway from liability inasmuch as itmattered not whether the goods were in an open truck or were in a covered truck;the cause of damage being negligence which is quite distinct from damageoccasioned by the goods being packed in open vehicles in which they werecarried, and in no way connected with it; in such case the Railway would beliable. The exemption must relate to damage which arises from the goods beingcarried in an open truck. An example was given during the course of theargument: an engine driver hosing down coal, by his carelessness directs hishose pipe towards the first carriage attached to the engine. If it were an opentruck then the goods in it might be damaged. If it were a closed truck nodamage would be occasioned to the goods. It would seem that damage to the goodsin the open truck, in those circumstances, would arise by their being conveyed inthe open truck. It would, therefore, appear that the company would not beliable, although the actual act causing the damage was a negligent one by itsservants.

21. In my view, in the present case, risk note "C"does cover the risk. The goods caught fire by reason of a spark or sparks beingemitted from the engine and landing in the open truck. Assuming for the momentthat there was some negligence, nevertheless if the goods had been in a coveredwagon, there would have been no fire. It is because those goods were carried inan open wagon that the fire took place, and the destruction or damage arose outof the goods being conveyed in the open truck.

22. In these circumstances, in my view, the matter comeswithin risk note "C." The plaintiff agreed with the Railway that hewould hold it harmless and free from all responsibility in respect of thedestruction.

23. The question which now requires to be considered iswhether there was misconduct by the Railway servants and, if so, whether thecompany is liable in respect of that misconduct. This arises by reference torisk note "B", which as mentioned above, exempts the railway fromliability save upon proof that the loss or destruction arose from misconduct ofthe railway administration or its servants. Some argument has been addressedregarding the difference between the misconduct of the railway and themisconduct of its servants. I do not think that it is necessary to deal withthat argument.

24. Learned counsel on behalf of the plaintiff, veryproperly, conceded that the burden is cast upon the plaintiff to provemisconduct, it is not for the railway to disprove it. In paragraph 4 of theplaint it is alleged the fire was caused by the misconduct of the servants ofthe railway and paragraph 5 sets out what would seem to be some particulars ordetails of the misconduct pleaded in the previous paragraph.

25. Negligence and misconduct are both wrong. Is there anydifference in degree between an act which is negligent and an act which ismisconduct Negligence is the failure to take that care which an ordinaryprudent man would take in the circumstances, and is the omission to dosomething which such man would do, or in doing some-thing which he would notdo. Misconduct is not easy to define. In the Oxford dictionary it is said to bebad management, mis-management, malfeasance and culpable neglect of an officialin regard to his office. A considerable number of authorities have been citedduring the course of the argument in which a definition or an explanation ofwhat is misconduct appears. I do not propose to refer to all but only to someof them. The opinions expressed in the several decisions are not in accord. In35 C. W. N. 133 B. N. Ry. Co. v. Moolji Sicka & Co. (30) 17 A. I. R. 1930CAL. 815 : 58 Cal 585 [LQ/CalHC/1930/188] : 129 I.C. 769 : 35 C. W. N. 133, the meaning wasconsidered of the word "misconduct" in a risk note containing thesame or similar language as in risk note "B." Suhrawardy J., withwhom Patterson J. agreed, observed at pp. 139-140 as follows :

I am inclined to hold that the word misconduct as used inthe new risk note B is wide enough to include wrongful commission oromission, intention or unintentional, any act which it wrongfully did orwrongfully neglected to do or, to put it in another way, did what he should nothave done and did not do what he should have done.

Later he said :

In my judgment the word misconduct denotes anyunbusinesslike conduct and includes negligence or want of proper care which abailee is to take under S. 152, Contract Act.

In this view there would seem to be no difference in degreebetween negligence and misconduct and that these words are co-relative and bearthe same meaning. In 39 C. W. N. 114 Manilal v. B. N. By. Co. Ltd. (35) 22: A.I.R. 1935 Cal. 271 : 155 I.C. 1052 : 39 C. W. N. 114Mitter J. expressed the opinion that misconduct is more than negligence. In 57C. L. J. 281 M. & S.M. Ry. Co. Ltd. v. Sunderjee Kalidas (33) 20 A. I. R.1933 Cal. 742 [LQ/CalHC/1933/88] : 60 Cal. 996 [LQ/CalHC/1933/88] : 147 I. C. 752: 57 C. L. J. 281 an exhaustivereview of the authorities was made and Guha J., at p. 285, expressed theopinion that misconduct is not necessarily established by proving even culpablenegligence, it is the intentional doing of something which the doer knows to bewrong or which he does recklessly not caring what the result may be. Bartleyand Guha JJ. concurred with this view and adopted this definition in 61 C. L.J. 526 Banwarilal Jagannath v. B. B. & C. I. Ry. Co. Ltd. (36) 23 A. I. R.1936 Cal. 24 [LQ/CalHC/1935/52] : 160 I.C. 728: 61 C. L. J 526. The opinion in the M. & S. M.Railway case (33) 20 A. I. R. 1933 Cal. 742 : 60 Cal. 996 [LQ/CalHC/1933/88] : 147 I. C. 752: 57C. L. J. 281 was given after reference was made to several decisions of theEnglish Courts upon risk, or consignment, notes by which the railway was liableonly upon proof of wilful misconduct or wilful default. Since the word wilfulwas absent from the risk note under consideration in the M.& S.M. Railwaycompany case, (33) 20 A. I. R. 1933 Cal. 742 : 60 Cal. 996 [LQ/CalHC/1933/88] : 147 I. C. 752: 57C. L. J. 281 and is absent in the risk note in the present case it may be, andprobably is, that the view expressed goes too far with regard to the meaning ofthe word misconduct. In : A.I.R. 1937 cal. 410 [LQ/CalHC/1937/47] B. N. Ry.Co. Ltd. v. Haji Latif Abdulla (37) 24 A. I. R. 1937 Cal. 410 : 173 I.C. 797Jack J. observed at p. 412 that negligence in his view would not always betantamount to misconduct: which is the view held in (1877) 3 Q. B. D. 195 Lewisv G. W. Ry. Co. Ltd. (1877) 3 Q. B. D. 195 : 47 L.J.Q.B. 131 : 37 L. T. 774 :26 W. R. 255 in which it was said that misconduct is something opposed toaccident or negligence.

26. In my opinion for an act to amount to misconduct theremust be a greater degree of wrong than is required for negligence. Misconductis something in the nature of improper behaviour and is not merely eitherwrongful commission or wrongful omission. An act of misconduct can well be. andin most cases probably is, negligence; but a negligent act is not by itselfmisconduct. It seems to me that misconduct is the genus and negligence aspecies of the genus. The observation of Hilton J. in A.I.R. 1930 Lah. 120Secretary of State v. Allah Ditta Mohammad Amin. (30) 17 A.I.R. 1930 Lah. 120: 120 I.C. 286 appears in point. At p. 121 the learned Judge observed :

The phrase misconduct of the railway administrationsservants can only have the second meaning, which involves the passing of amoral judgment on the part of the person concerned, however slight may be thelapse from rectitude which provokes it.

I do not think, I can usefully add anything to theobservation of the learned Judge which I have just quoted. In my viewmisconduct requires an act to be of a more grave nature than is required inrespect of one which is mere negligence and nothing more.

27. I am unable to subscribe to the view expressed in 35 C.W. N. 133 B. N. Ry. Co. v. Moolji Sioka & Co. (30) 17 A. I. R. 1930 Cal.815 : 58 Cal. 585 [LQ/CalHC/1930/188] : 129 I.C. 769 : 35 C. W. N. 133 at p. 140 that theprovisions in the risk note, relieving a railway company from theresponsibility for loss, destruction and damage except upon proof ofmisconduct, only confers the immunity of shifting the burden of proof; and thatsince the onus is upon a bailee in the ordinary way, if goods in his possessionare damaged, to prove how the damage occurred, if he wishes to avoid liability;the provisions in the risk note remove that obligation from him and cast uponthe bailor the burden to prove affirmatively that loss or damage was caused by themisconduct of the bailee. The risk note does require a bailor to establishmisconduct; but it is not, in my view, the only immunity which is given to therailway company.

28. The next matter is whether there has been misconductcommitted by the servants of the railway. The acts of misconduct which arealleged are: (1) attaching the open truck containing the wooden articles to agoods train and not to the plaintiffs or another passenger train; (2) placingthe truck next to the engine; and (3) not taking proper care to see that thecontents did not catch fire.

29. Open trucks containing wood, or goods of woodenmanufacture, commonly form part of a goods train, and an attachment of an opentruck to such a train cannot be misconduct and is not in my view even an act ofnegligence.

30. Mr. Bakers testimony is the sole evidence which wasgiven with regard to coupling next to the engine an open truck containingwooden goods covered with a tarpaulin. There are railway rules and regulationswhich have statutory force and authority, and these govern the conduct ofrailway goods and other traffic. There is none which either permits or forbidsan open truck being placed next to the engine. Rule 134, which deals withdangerous goods, such as dynamite, matches and petrol, does not include timberor articles of wooden manufacture in the list of dangerous goods, and it goesno further than to provide that it is preferable that they should be placed atthe end of the train away from the locomotive. There was, therefore noinfringement by the railway of a rule or regulation. Wood or timber is neitherdangerous nor even inflammable, but is combustible. According to Mr. Baker therisk is greater of sparks falling upon a truck further to the rear than uponthe one which is attached next to the engine, since sparks are emitted into theair and take some time to fall. During the falling process the sparks pass overthe trucks nearer to the engine. Mr. Baker says sparks may fall as far back asthe fifteenth or twentieth wagon from the engine. Even if this open truck hadbeen coupled to a passenger train-and complaint is made that it is misconductnot to have done this-the sparks must nevertheless be liable to fall upon anopen truck whether coupled to a goods train or coupled to a passenger train.

31. There must be, ex necessitate, risk of goods in an opentruck catching fire from sparks emitted from the engine, no matter in whichposition trucks may be placed provided they are within twenty vehicles from thefront of the train, but this in my view is no more than one. of those riskswhich modern transport facilities entail. There is no reason why Mr. Bakersevidence should not be accepted. From his testimony, misconduct by the Railwayor by its servants is negatived. I do not propose to go through his evidence indetail, but looking at it as a whole, there was nothing done on this occasionfrom which it can be said that the servants of the Railway were guilty of anyact which amounted to misconduct.

32. I, therefore, hold that there has not been misconductproved as required by Risk Note B in order to bring the Railway outside theexemption provision and to make it liable to the plaintiff for his loss.

33. The next matter which requires attention is thecontention on behalf of the plaintiff that the Railway cannot avail itself ofthe terms of Risk Note B. All the risk notes, it was argued, require theRailway to carry the goods by the same passenger train as that by which themembers of the party travelled or by some other passenger train. Since thewagons and truck were coupled to a goods train, the Railway did not fulfil itsobligation under contract or contracts. Consequently the Railway cannot availitself of any term in the risk notes or in the contract. This plea is not raisedin the plaint and no additional written statement was filed by the plaintiff inwhich such plea is made. It was, however, argued that facts, and not law, arerequired to be alleged in a pleading, and when facts are stated andestablished, then the party concerned can rely upon any legal consequencearising from those facts.

34. Pursuant to a request for particulars of misconductalleged in para. 4 of the plaint, the plaintiffs attorneys, by letter dated20th June 1939, gave the following :

The Carnival goods were booked and a luggage ticket No. 9282was issued in respect of them by the E. I. Railways administration and theywere to have been carried normally in the same train as consignor and hisparty. The E. I. Railways administration, however, attached the truckcontaining the said Carnival goods to a goods train and moreover one of thetrucks which was an open track was placed by the E.I. Railways administrationnext to the engine of the goods train and allowed to be carried thus withouttaking proper care that the goods contained in the said open truck andconsisting chiefly of wooden materials, while in the custody of the saidadministration and in transit did not catch fire from sparks from the engine orwas otherwise destroyed.

It was argued that upon these allegations it is open to theplaintiff to contend that the Railway cannot avail itself of the provisions inthe risk note, requiring the plaintiff to establish misconduct as a conditionprecedent to liability for loss and exempting it from liability if misconductis not proved. There is nothing in the risk note from which there is anyobligation upon the Railway to carry the goods by passenger train. The letterdated 14th April 1938, granting the application for concession rates, has someterms upon the back which I have stated earlier. I can find nothing in thesewhich makes it obligatory for the Railway to carry the goods by goods train. Itprovides, so far as is material, that luggage and property booked in a separatevehicle shall be charged at the stipulated rate. It was emphasised that sincethe carnival properties were luggage, it necessarily followed that they shouldbe carried by the same train as that by which the party travelled, but in theabove letter reference is made to risk note "B", upon the terms ofwhich the whole consignment was being carried.

35. The particulars which were supplied were deliveredpursuant to the request and solely in respect of the alleged acts of misconductin the plaint. There is nothing in any part of the plaint nor in theparticulars, by which it could be hazarded that an attack was being made uponrisk note "B" or any of the risk notes, because of some breach ofcontract alleged against the Railway.

36. In numbers of authorities it has been observed, and alsoby their Lordships of the Judicial Committee, that the object of pleading is togive fair notice to each party of what the opponents case is. In my view thismatter is covered by 61 I. A. 224 Someshwar Dutt v. Tirbhawan Dutt (34) 21A.I.R. 1934 P. C. 130 :9 Luck. 178: 61 I. A. 224 :149 I. C. 480 (P. C.). Inthat case the plaintiff claimed for a deed of gift to be set aside on theground of fraudulent misrepresentation by the defendant which forced him toexecute the deed. In the plaint, in order to show the defendant could committhe fraud, it was alleged that he was in a position to exercise undue influenceover the plaintiff. The learned Subordinate Judge held that undue influence wasnot a substantive claim. On appeal to the High Court he was overruled, buttheir Lordships in the Judicial Committee restored the finding of the learnedSubordinate Judge. Lord Alness who delivered the judgment of the Board,observed at p. 229 that their Lordships were satisfied that the SubordinateJudge was right in holding that the basis of the suit was fraudulentmisrepresentation; no substantive case of undue influence was raised; theallegations of the weakness of mind of the plaintiff on the one hand and thecommanding position of the defendant on the other appeared to their Lordshipsto be ancillary to the main charge and did not present a substantive case ofundue influence; although they were disinclined to stretch the structure ofpleadings too strictly, a fair notice of the case to be made by the plaintiff mustbe given, but even so they could not differ from the Subordinate Judgesconclusion.

37. In my view this decision completely governs and coversthe present case. The facts, upon which the plaintiff seeks to rely in order toraise the present contention, are alleged solely as a ground of misconduct andas part of the plea by which the plaintiff seeks to enforce the terms of therisk notes by showing that there was misconduct which the note requires to beproved as a condition precedent to recovery by the plaintiff. There is nosuggestion in the plaint or in the particulars that the facts, to whichreference has been made, prevent the Railway from relying upon the risk noteand that a claim was being made in the suit against the Railway irrespective ofthe provisions of the risk note. The plaint, in my view, does not give a fairor any notice to the Railway of such a case. The sole substantive case is themisconduct relied upon to take the case out of the exemption provisions of therisk note. In my view this contention is not open to the plaintiff.

38. In regard to costs, the learned trial Judge in exerciseof his discretion and for the reasons which he gave directed that there shouldbe no order for coats. Costs are solely a matter for the discretion of theJudge and in this case there is nothing to show that Ameer Ali J. exercisedthis discretion wrongly and did not apply the ordinary principles which Shouldbe applied when the question of costs requires decision. For the reasons whichI have given I would bold that this appeal should be dismissed with costs.

G.D. McNair, J.

39. I agree with the judgment which has just been deliveredby my learned brother and I have nothing to add.

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Ralliaram Dingra vs. Governor-General of India in Counciland Ors. (21.02.1944 - CALHC)