A railway company, as a bailee, is bound to take care of the goods bailed to it as a man of ordinary prudence would take care of his own goods.

Sinha, J.

1. This is a defendants appeal against the judgment and decree of the First Additional Subordinate Judge of Patna affirming the decree for compensation for damages passed against the appellant.

2. The plaintiffs case is that they are proprietors of a general merchants shop known as S. Bashiruddin and Sons in Murdapur, Patna, and that the Imperial Tobacco Company Ltd. of Muzarfarpur booked a consignment of four cases of cigarettes weighing 5 maunds 13 seers from Muzaffarpur to Mahendru Ghat at Patna as per invoice No. 46 dated the 10th of July, 1945, at railway risk. Another consignment of cigarettes weighing 1 maund 10 seers was booked by the said company at Muzaffarpur to Mahendru Ghat as per invoice No. 73 dated 6-8-1945) at railway risk. In both the cases the railway receipts were endorsed in favour of the plaintiffs. It appears that the goods under invoice No. 46 arrived at Mahendru Ghat on 14-7-1945, and when the plaintiffs went to take delivery of it on 26-7-1945, they found the goods damaged and they wanted open delivery which was refused. On 23-8-1945, the plaintiffs wrote a letter to the Traffic Manager requesting for open delivery. On 27-9-1945, the Traffic Manager passed orders deputing the Commercial Inspector to give open delivery. Open delivery was offered on 4-10-1945, and it was found that 3 seers of cigarettes were short and one of the cases was in damaged condition.

The consignment covered by invoice No. 73 had reached Mahendru Ghat on 9-8-1945. In this case also the plaintiffs refused to take delivery on 23-8-1945, and wanted open delivery which was refused. Upon the letter of the plaintiffs requesting the Traffic Manager to give open delivery, open delivery was offered on 4-10-1945, and it was found that 760 cigarettes were short. In both the cases, the plaintiffs refused to take delivery on the ground" that the contents were rotten and unfit for human consumption. Thereafter, it appears Claims Supervisor was deputed by the defendant railway company to Mahendru Ghat and the plaintiffs took delivery of only one case of cigarettes under invoice No. 46 and refused to take delivery of 3 cases of sportsman cigarettes on the ground that they were rotten and not fit for human consumption. The entire consignment under invoice No. 73 was refused on the same ground. The plaintiffs charged the railway administration with pilferage, gross negligence and misconduct in regard to the goods.

3. The defence was that notices required under Section 77 of the Railways Act and Section 80, Civil P.C., had not been served by the plaintiffs, that the suit was barred by limitation and that the railway administration was not guilty of misconduct or pilferage of the goods.

4. The first Court held that notices under Section 77, Railways Act, and Section 80, Civil P.C., had in fact been served, that the suit was not barred by limitation, and that the railway administration was guilty of misconduct because the pilferage took place while the goods remained in the care of the railway company and during carriage from Muzaffarpur to Mahendru Ghat. It accordingly, decreed the suit.

5. The questions about the maintainability of the suit, limitation and want of notices under Section 77, Railways Act and Section 80, Civil Procedure Code, were reiterated by the defendant-appellant in the Court below. It was further contended that the railway administration was not liable for any damages to the plaintiffs. The Court below held that the suit was maintainable that the notices had been served, that the suit was within time, and further that "it was the railway company who are responsible for the damage done to the goods as they did not give open delivery till 4-10-45." It also held that the cigarette cases remained on the jetty during the entire monsoon which was open from all sides and its roofing was of corrugated iron sheets and due to rains the packages containing the cigarettes became wet and rendered wholly unfit for human co