Mack, J.
1. The plaintiff, a piece goods merchant of Coimbatore with an office in Madras, sues the South Indian Railway for the recovery of Rs. 6981-10-0 as the value of three bales of sarees and cloths which were stolen from the Madras Beach Station goods shed.
2. The admitted facts are these. On 29th May 1946 the plaintiff's clerk Rajagopalan (P. W. 1) consigned six bales through a cartman maistry one Pullayya P. W. 2 to be booked to Tuticorin. He placed these bales near the weighing machine in the goods shed without any formalities of booking being complied with. The nest morning the forwarding note, Ex. P-1, and the risk notes Exs. P-2 and P-3 were numbered and, entered by the railway gate clerk D. W. 1 in the gate book Ex. D-2 in which the forwarding note EX. P-1 was assigned a number 294. In the meantime one of the bales kept in the goods shed was stolen the previous night. Rather a belated complaint was made about this disappearance by Pullayya. Rajagopalan made a complaint (EX. P-4) to the Chief Commercial Superintendent with a copy to the Goods Station Master, Sankaranarayana Ayyar, (D. W. 3) who has since retired, and sent a telegram to the plaintiff in Coimbatore District. The remaining five bales continued to remain in the goods shed without apparently anything being done till 1st June when Rajagopalan went with the plaintiff's son (P. W. 4) who had come from Coimbatore and discovered another bale missing. On the advice of the goods station staff who appeared to have assumed no responsibility for unbooked goods lying in the goods shed P. W. 4 sent a letter EX. p-5 to Trichinopoly bringing to notice the loss of the second bale and asking for open delivery of the remaining bales lying at the Beach station. The goods station master also on 1st June 1946 sent a complaint Ex. P 12 to the Madras Police enclosing a copy of this letter and asking for investigation. There was, however, neither development nor police investigation until the morning of 3rd June the four bales still lying in the goods shed. The senior assistant goods clerk D. W. 5 on coming to duty at about 7 A. M. found some coloured thread scattered outside the main goods shed gate way. He immediately sent word to the station master D. W. 3 who arrived and telephoned to the police. After a head constable arrived the goods shed gate, the seals of which were in tact, was opened. It was subsequently discovered that third bale belonging to the plaintiff had been stolen obviously by thieves during the night. The Inspector of Railway Police Egmore, A. W. Fernandez who hag since retired arrived at that morning and found underneath the main corrugated iron gate which closes the railway line which admits the wagons into the goods shed a space about a foot wide which had been formed in the masonry of the floor, through which on experimentation he found that a medium-sized man could squeeze without a scratch. It is not disputed that this was the modus operandi by which thieves entered the goods shed and made away with these bales. These investigations resulted in a case against two accused a woman (A-1) and a man (A-2) not employees of the railway who were convicted the former under Section 411, Penal Code, and sentenced to rigorous imprisonment for four months and the latter under Section 414, Penal Code, to rigorous imprisonment for only one month. They produced sarees from hiding places on confessions they made 28 sarees were returned by the police to the plaintiff who has in his claim given credit for their value.
3. A very significant piece of evidence is furnished by the Railway Police Inspector, P. W. 3 who deposed that the goods station master (D. W. 3) who worked in this capacity from 1944 to October 1946 told him that he had sent up a report about this depression under the main railway gate to his superiors in July 1948 and that no action had been taken. (After discussing the evidence, the judgment proceeded:) I must find, therefore, at the commencement that there was this defect in the gate brought to the notice of the railway authorities which they unfortunately neglected to rectify. It may be that by the use of a crowbar this depression was enlarged for purposes of these thefts and camouflaged by being filled with earth and debris to escape notice.
4. The railway company repudiated liability for the loss of these bales in a prolix written statement mainly on two grounds : (1) that the bales had not been delivered to them to be carried by rail within the meaning of Section 72, Railways Act, and (2) that they were absolved from liability under the notes Exs. P-1 and P-2 as there was no misconduct on the part of any of their servants. These are the two main points which arise for determination though the Master framed the following issues :
1. Were the plaintiff's goods planed in the sole custody and possession of the defendant railway as alleged in para. 3 of the plaint and did the defendant accept the same for transport on 29th May 1946 ?
2. Did the defendant railway become liable either as bailees or otherwise for the safe custody of the goods left in their possession ?
3. Was the theft in the goods abed occasioned by the negligence or any other defect in maintaining the goods shed and is the defendant liable for the loss caused to the plaintiff ?
4. Was not the defendant in any event liable to protect the plaintiff's interest after the first theft at the shed?
5. To what damages is the plaintiff entitled?
6. Is the defendant liable to pay plaintiff the damage suffered by him under the circumstances set out in the plaint ?
7. Is the defendant absolved under the Risk Notes A and B in the case ?
8. To what reliefs is plaintiff entitled ?
5. The plaintiff has put forward an unacceptable case about the initial deposit of the six bales in the goods shed The evidence of the cart-man maistry Pullayya who was well known to the goods shed staff as a regular customer who booked goods for various clients tries to make out that he took these six bales along with the forwarding note and risk notes (Exs. p 1 to P-3) signed by P. W. 1 in his cart to the goods shed on 27th May 1946 and was told that there was no booking of piece goods that day and very strangely left EXS. P 1 to P 3 in the goods shed with one of the clerks He took the 6 bags back. He was later told by P. W. 1 that the goods could be booked on 29th on which date he brought these six bales again to the goods shed in his cart. The evidence of Pullayya which is most unsatisfactory is that when he after placing the bales near the weighing machine he asked for the railway receipt the weighing clerk told him that it was not a booking day and asked him to come the next day. In cross examination Pullayya said that the 'manager' presumably D. W. 3 and his clerk told him to take the bales back on 27th although he says that they retained Exs. P-1 to P-3. I have no hesitation whatsoever in disbelieving Pullayya's evidence which is obviously embellished and calcuated to prove from the first fact that EXS P-1 to P-3 were continuously in the possession of the railway company that even from 27th May that the mere placing of these bales in the goods shed on the 29th established delivery to the railway company for despatch.
5a. The gate clark, D. W. 1 whom I believe, says that he comes on duty at 11 A. M. and that he finds on his table a pile of forwarding notes placed there by cartmen which after check he enters in serial order in his gate books Ex. D 2. Number 1 to 500 are given and then a fresh series is commenced for the forwarding notes. His evidence which is not disputed is that there were certain days nominated for booking piece goods to Tuticorin, namely, Mondays and Thursdays. He has no recollection of the cartman Pullayya coming to him on the 27th and making any enquiries. Whether Pullayya did actually bring the 6 bales in his cart on the 27th itself along with Exs. P-1 to P-8 is quite immaterial. As a cartman who knew the ins and outs of booking goods, I gravely doubt whether he in fact took the trouble to cart these goods without first ascertaining whether they could be booked that day. What I am convinced about is that he never handed over Exs. P-1 to P-3 to any goods shed railway clerk on 27th May. How then were these six bales registered by the gate clerk on the morning of 30th with descriptions taken from Exs. P-1 to P-3 after one of the six bales placed in the goods shed the evening before had disappeared. It is in evidence that there are two goods sheds, one a larger goods shed where these were placed and the other a smaller one in which the goods station master or the chief goods clerk has his office. It is admitted on all hands by the goods railway clerk examined and also by the Railway Inspector P. W. 3 that in the larger goods shed there were lying both booked and unbooked consignments and also in a different portion of this goods shed inward packages received awaiting delivery to consignees.
6. The gate clerk D. W. 1 has described the procedure of booking goods in various stages, (1) numbering the forwarding notes and risk notes and entering them in the gate book, (2) their being taken to the weighing clerk, (3) marking of the bales and (4) actual loading into the wagon after which railway receipts are given. D. W. 1 asserts that unbooked goods on any day must be taken away and not left at the goods shed during the night and the railway company point to large placard posted that goods kept in the goods shed at consigners' risk unless the forwarding notes are tendered and accepted. It appears to be quite possible in the confusion which seems to have reigned in this goods shed for a cartman known to the goods shed staff as being a professional booking agent to have placed these bales near the weighing machine without arousing any suspicion or even apprising them of the fact that he had done so. As I have said the conduct of this cartman Pullayya quite apart from the unsatisfactory evidence he has given is most suspicious. He has failed to explain the most important piece of evidence in the case that the numbering of the forwarding notes in the gate book was only on 30th June 1946 whereas he says he placed six bales in the goods shed the evening before. Even assuming that he had placed the bales in the goods shed intending to book them he should after having got the forwarding notes numbered have discovered the theft of the bale much earlier that, morning in the process of booking, The strong probability also is that he knew-the day of the week on which the railway booked these goods to Tuticorin and why he brought these bales to-the station that day before has not been satisfactorily explained. The position might have been different if the forwarding notes had been registered in the gate book on 29th May 194ft before he took these bales to the goods shed. In the circumstances there is no satisfactory evidence at all that Pullayya did deposit six and not five bales in the goods shed on 29th or that the railway company were even apprised of the existence of these bales in their goods shed on the night of 29th May 1946 nor is there any evidence except that of the interested and unreliable testimony of Pullayya that any goods-clerk gave him permission to keep the bales, near the weighing machine for the night. Anyone who places goods in a railway goods shed without taking any initial step in the matter of booking-, or even apprising the goods shed officials that he is doing so clearly leaves the goods there at his own risk and the railway administration cannot be held responsible as there has been no delivery to them of such goods for being railed.
7. The position as regards the two remaining; bales which were lost during the night of 31st May and 2nd June as it appears to me is quite different. As regards them the entire goods staff were apprised of the existence of these five bales which had been brought to the station for despatch for being railed. The forwarding note and risk notes had also been numbered. I do not, believe the evidence of D. W. 3 that he not only disclaimed responsibility on 80th May 1946 but asked Pullayya to take the bales away and that he refused. These five bales were therefore to the full knowledge of the railway servants in the goods shed in railway custody under somewhat peculiar circumstances, it is true, with one bale, alleged to have been stolen from their goods shed before they can be deemed to have accepted delivery. These goods were allowed to be along-side other booked articles and the railway administration retained them in their custody clearly as bailees under Section 72, Railways Act. The learned advocate for the railway urges that their delivery is not complete unless the goods are either 'marked' or loaded in the wagon. There is a wealth of authority as regards this contention against the defendant. In Secretary of State v. Sheo Bhagwan Chiranjilal : AIR1936All69 , it was held that a consignment of bales of hemp deposited in a railway goods shed with the permission of an authorised servant of the railway was delivery within the meaning of the Act, although no forwarding note was even tendered by the consigner and no receipt was granted to him. In that case the goods were destroyed by fire caused by sparks from an engine. The railway company was held to be grossly negligent in failing to make adequate and reasonable provision for the protection of these goods. Other decisions laying down the same principle are Jalim Singh v. Secretary of State, 31 Cal. 951 : 8 C. W. N. 725, Ramachandranath v. G. I. P. Rly., : AIR1915Bom24 and Narsinggirji Mafg. Co. v. G. I. P. Rly., : AIR1918Bom26 .
8. Mr. Ramachandra Ayyar has elaborated an argument for the railway administration that although the bales may have been in their goods shed to the knowledge of their servants from the 30th May they only accepted liability after the goods are actually loaded and that under Section 72, Railways Act, read with Section 54 and Section 47 they can, as I understand his argument, postpone the vesting of liability by the formulation of certain rules. Under Section 54 a railway company may impose conditions not inconsistent with the Act with respect to the receiving, forwarding or delivery of any animals or goods. Under Section 47 (f) the railway company may make rules consistent with the Act for regulating the terms and conditions on which they will ware-house or retain goods at any station on behalf of the consignee or owner. He lays stress on clause (1) of the forwarding note itself which contains a condition accepted by the consignor that the railway shall not be accountable for any articles unless they are booked and a receipt for them given by their clerk or agent. He concedes that in the fact of the case law I have referred to supra, this condition, so far as it relates to the actual passage of the receipt is ultra vires but he contends that the goods must be booked before liability of the railway administration commences, and that the vesting of liability in the railway is postponed till the goods are at any rate loaded in the wagon, an act which completes the booking. The liability of the railway company as a bailee is governed by Section 72 of the Act and any rule which seeks to evade this liability must be deemed to be inconsistent with the Act and therefore ultra vires.
9. Whether there has or there has not been delivery to the railway administration is an inference of fact from the circumstances of each case. If the consignor was specifically refused permission to keep his goods in the goods shed over night and directed to remove them by the officials responsible it may be possible to hold that the goods would lie there entirely at the consignor a risk without any contract of bailment. But in cases where to the knowledge of the goods shed officials or with their permission specific goods lie in a goods shed, deposited there before the shed is locked up for the night, the railway company cannot as it appears to me avoid the responsibilities of bailees under Section 72. It must be remembered that the consignor in such a case is afforded no facilities for watching his goods at night. They are taken into the exclusive custody of the railway company and in this case they lay side by side in the goods shed along with booked articles and also articles awaiting delivery to consignees. Delivery in such a case cannot be made contingent on the completion of a particular stage in the process of booking. It is an inference to be drawn from the circumstances of each case. I have no hesitation in finding that in this particular case the railway administration must be deemed to have accepted delivery of the five bales which to the knowledge of their goods shed officials were in their goods shed, when it was locked up for the night on 30th May. A complaint had been made to them that one of the bales had been stolen from the goods shed the night before. A consignor who sends goods to the goods shed some of which get lost during the day before the goods shed staff accept delivery would be on an entirely different footing and cannot make the railway administration liable as bailees. It is on this principle that no liability for the first bale alleged to have been lost on the night of 29th May can be fastened on the railway; but as regards their liabilities as bailees under Section 72 of the Act as regards the second and third bales lost there can, I think, be no doubt.
10. The liability of the railway company must of course be restricted to the risk note Ex. P-2 and it is necessary for the consignor strictly to prove misconduct of the railway servants which led to this loss. Prior to 1924 the words in this risk note were 'wilful negligence'. In some English decisions the words used and construed in such risk notes were 'wilful misconduct'. The meaning of the word 'misconduct' has been elaborately considered by Venkataramana Rao J. in Roshan Umar Karim & Co v. M. & S. M. Ry. Co. Ltd., 59 Mad, 789: A. I. R. 1936 Mad. 508. In B. N. Ry. Co. v. Moolji Sikka & Co. : AIR1930Cal815 , Suhrawardy J. took the view that the present risk note was wider and more comprehensive in enlarging the liability of the railway. The distinction between misconduct and 'wilful misconduct' was considered in Norris v. Great Central Ry. Co., (1915) 114 L. T. 183 : 85 L. J. K. B. 285 where Lush J. held that mere carelessness on the part of the railway servants was not sufficient and did not constitute intentional wrong conduct amounting to wilful misconduct. Venkataramana Rao J, after a comprehensive review of all the available authority defined misconduct' as follows : 'A mere omisision to do what is expected of a person to do constitutes misconduct' whereas if such failure is directed to intentionally cause mischief or loss to any person then it is called wilful misconduct. With great respect I am in complete agreement with this definition. There is really no difference in substance in the liability of the railway company as a bailee under Section 151, Contract Act, who is expected to take as much care of the goods bailed to them as a man of ordinary prudence would under similar circumstances take and in their liability as restricted in the risk note to cases of misconduct by their servants.
11. The facts of this case present no difficulty or nice distinction, in any event between misconduct and what is not misconduct on the part of the railway servants. In the first place, there was this defect in the railway gate which had not been rectified since 1945. In the second place there was the apathy of the goods shed station master and staff in taking no immediate action to stop a recurrence of the astonishing thefts of these large hales. It may be that they laboured under the delusion that as the goods had not been technically booked the railway administration were in no way liable for their loss. The least the Station Master should have done was to have put special watchmen on duty at this gate or to have telephoned immediately to the police at any rate after the disappearance of the second bale. A railway watchman has been examined as D. W. 6 who as may be expected, swore to his being in a constant state of vigilance all through the night. In Brabant & Co. v. King, 1895 A. C. 632 : 64 L. J. P. C. 161, the House of Lords expressed the view that the obligation of a bailee included not only the duty of taking all reasonable precautions to obviate risks but the duty of taking all proper measures for the protection of the goods when such risk were imminent or had actually occurred. Finally there is the irrestible inference from the facts that the removal of the contents of these bales each weighing 41/2 maunds in astonishing succession could not have been achieved without the active connivance of some of the railway servants. In Khairati Lal v. B. B. & C. I. Rail-way, A. I. R. 1938 ALL. 230 : 113 I. C. 743, Banerji (Walsh?) J. held that such an inference was a legitimate one in rather similar circumstances. The concentration of the culprits on this lot of unbooked bales to the exclusion of other booked articles is prima, facie very suspicious and permits a reasonable inference that this concentration rose from a delusion, since the railway servants were under, that unbooked articles in the goods shed were not the subject matter of responsibility of the railway administration but were fair game to be preyed upon with impunity. I find misconduct on the part of the railway servants clearly proved as regards the second and third bales lost.
12. In the result plaintiff will have ft decree for two-third of the plaint claim less Rs. 280 the value of some other saris returned to him by the police subsequent to the plaint with proportionate costs against the railway administration.