A railway company's duty to its passengers is to carry them with due care and diligence and to afford them reasonable accommodation. Overcrowding may amount to actionable negligence, but the plaintiff must prove injury or damage to claim damages.

Das, J.

1. This is an application Under Sec.25, Provincial Small Cause Courts Act and is directed against the decision of the learned Munsif of Darbhanga, exercising- small cause court powers, dated 1-12-1950. The learned Small Cause Court Judge has decreed the suit of the opposite party who claimed damages to the extent of Rs. 50.00 for what he alleged to be "trouble and inconvenience", in travelling from Darbhanga to Howrah on 19-6-1949, in a second class compartment by the 46 Down train. The defendants were the Union of India and one Sri K.M. Das said to be a travelling ticket examiner on the railway in question. The allegation of the opposite party was that there was great overcrowding which resulted in trouble and inconvenience to him. The defence was a denial of overcrowding, or any consequent inconvenience or damage to the opposite party. On behalf of the Union of India, it was also pleaded that the only duty which the railway owed was the duty of giving reasonable accommodation to the opposite party in the circumstances existing at the time of the contract of carriage, and such reasonable accommodation having been provided, the defendants were not liable for any damages.

2. The learned Small Cause Court Judge negatived the defence pleas and gave a decree to the opposite party. Mr. N.C. Ghosh appearing. for the petitioners has urged the following points. He has firstly contended that the learned Small Cause Court Judge has not given the necessary findings which would justify a decree in favour of the opposite party. He has, secondly, contended that the railway as a carrier of persons owed no other duty to the opposite party except the duty to provide reasonable accommodation in the circumstances then existing, for the journey which the opposite party had to perform. It is submitted that the opposite party failed to prove that such reasonable accommodation had not been given to him; therefore, the learned Small Cause Court Judge was wrong in passing a decree in favour of the opposite" party. Thirdly, it is contended that there is no finding that the opposite party had suffered any injury or damage, and in the absence of such a finding, the decision of the Small Cause Court Judge is erroneous in law.

3. "In my opinion, all the three points urged by Mr. N.C. Ghosh are of substance and should be accepted. All that the learned Small Cause Court Judge clearly found was that the opposite party got into the train in question at a station named Darbhanga. At the next station Laheriasarai, some six or seven military men entered into the second class compartment in which the opposite party was travelling. Those were the days when there was no Intermediate Class. The opposite party complained to the travelling ticket examiner and asked the latter to check the ticket of the military men. The travelling ticket examiner, however, did not check the tickets of those six or seven military men. These are the only facts which the learned Small Cause Court Judge has clearly found, and on these facts it is manifest that no claim for damages can be founded. Learned Counsel for the parties has placed part of the evidence before us. It appears that there was conflicting evidence as to the seating capacity of the compartment in question; the plaintiff opposite party said that there were seats for about twelve people and when he got into the compartment at Darbhanga, there were already thirteen or fourteen people in it.

The travelling ticket examiner said, however, that there were fifteen seats in the compartment. He further said that six or seven men could stand in the compartment without causing any serious. discomfort to the passengers. I have already said that the learned Small Cause Court Judge has come to no clear finding about overcrowding or the extent of the overcrowding, if any.

4. We have also been addressed on the question if overcrowding by itself amounts to actionable negligence. That will depend on the duty arising out of t