(Prayer: Petition (disposed of on 19-9-1945) under S. 25 of Act IX of 1887 praying the High Court to revise the decree of the Court of the Subordinate Judge, Bapatla in S.C.S. No. 14 of 1944 dated 16-8-1944.)

This civil revision petition is against the decree of the Subordinate Judge of Bapatla in a small cause suit for Rs. 662-5-0 claimed as damages in respect of a consignment of 33 tins and one box of bleaching powder handed over to the Nizams State Railway at Secunderabad for delivery to the respondent at Chirala a railway station on the M.S.M. Railway, the petitioner. The case of the respondent-plaintiff was that of the consignment received by the Nizams State Railway, only nine tins of the bleaching powder were delivered to him at Chirala railway station and that the rest of the stuff was damaged in transit on the petitioner railway. This railway admitted that the damage was caused by fire while the wagon containing the goods was in the goods yard of one of its railway stations. But the liability was denied on the ground that the fire was not caused owing to the negligence of the M.S.M. Railway. Its defence was that the tins of bleaching powder were loaded at Secunderabad in the same wagon with drums of turpentine and spirit, that the fire resulted from turpentine and spirit having leaked from the drums and come into contact with the bleaching powder. The M.S.M. Railway was not aware that the bleaching powder and turpentine had been loaded in the same wagon and therefore precautions against fire could not possibly be taken. In those circumstances the M.S.M. Railway must be deemed to have taken as much care of the respondents goods as a man of ordinary prudence would. The learned Subordinate Judge decreed the claim against the petitioner railway holding that as the suit was filed under S. 80 of the Railways Act the fact that the damage occurred on the M.S.M. railway was by itself sufficient to make that railway liable. He observed that the M.S.M. Railway might not have been negligent and the negligence that led to the fire might have been on the part of the Nizams State Railway, but that circumstance did not absolve the M.S.M. Railway. The suit claim was resisted with regard to the quantum of damages also. But the finding in this respect is not questioned here.

The only contention advanced on behalf of the M.S.M. Railway is that from the fact that S. 80 of the Railways Act enables the consignor to sue the receiving or delivering railway, it does not follow that the delivering railway is liable even if it has taken the care required under S. 72 of the Railways Act. It is said that the M.S.M. Railway can be held liable only if it is established that it had not taken the care which a bailee is expected to take and as the learned Subordinate Judge has not found that the M.S.M. Railway was negligent the decree should be set aside. The argument advanced on behalf of the respondent is this. The respondent is entitled to damages as fire was due to negligence in loading the goods. The Nizams State Railway received the goods as an agent of the M.S.M. Railway and therefore the plaintiff can recover damages from the latter railway even though it was not negligent. In support of this contention he relies on Jamnadas Ramjas v. East Indian Railway Co., Ltd. (A.I.R. (1933) Pat. 630) [LQ/PatHC/1931/47] , where it was observed that the principle underlying S. 80 was that the railway which takes delivery of goods with an undertaking to carry it safe is an agent for the railways over which the goods have to pass in order to reach their destination and vice versa.

I am unable to accept the contention of the respondent. It no doubt finds support in the observation of the Patna High Court referred to above but in Kalu Ram Maignaraj v. The Madras Railway Co. (3 Mad. 240) [LQ/MadHC/1981/342] , a decision of this Court, relied on by the petitioner, it was held that when two railway companies interchange traffic, goods and passengers with through tickets and invoices, payment being made at either end, the receiving company does not contract with the consignor as agent of the delivering company. This is no doubt a decision of 1881 prior to the Indian Railways Act but it appears to me that S. 80 is not based on a different principle. A Full Bench of the Allahabad High Court, subsequent to the Railways Act, followed this decision in Chunilal v. Nizams Guaranteed State Railway Co., Ltd. (29 All. 228). There it was held that where a railway receives and undertakes to carry goods from a station on its railway to a station on another distinct railway with which it communicates, the contract is with the receiving company for the whole distance and the other railway will be regarded as their agents and not as contracting with bailor. In that case, S. 80 was not considered but the view expressed there is relevant to the theory of agency on which the respondent seeks to make the M.S.M. Railway liable. If as contended by the respondent, it is considered that the receiving railway takes the goods as an agent of the delivering railway, then in cases where the damage occurs on the latter railway due to its own negligence, the consignor should not be allowed to sue the receiving railway, as an agent is not liable for the negligence of the principal; but under S. 80, he can sue the receiving railway even though the delivering railway is responsible for the damage. Similarly in cases where evidence is not available as to where the goods were damaged or upon which companys railway system they were damaged, the consignor should proceed under S. 80 against the receiving railway: see South Indian Railway Co., Ltd. v. Nanjiah Narayanaswami Pillai (A.I.R. (1934) Mad. 652 [LQ/MadHC/1934/174] =40 L.W. 625). It therefore appears to me that the underlying principle of S. 80 is that the receiving railway is the principal and the delivering railway is its agent. The delivering railway can therefore be held liable for the damages only if it is responsible for it. This view is indicated in Sri Gangaji Cotton Mills Co., Ltd. v. East Indian Railway Co. (A.I.R. (1922) All. 514), on which the petitioner relies. I am unable to agree with the Subordinate Judges view of this decision.

From the above discussion it follows that the M.S.M. Railway in this case can be held liable only if it is established that the damage was caused by its negligence. As the Subordinate Judge has decreed the suit without determining this point, the decree has to be set aside. It is accordingly set aside and the case is remanded for disposal according to law in the light of the above observations. Costs of this petition will be costs in the suit.