Panchapakesa Ayyar, J.-This is an appeal by the Dominion of India, owners of the Madras and Southern Mahratta Railway Administration, now the Southern Railway, represented by the General Manager, Madras, against the judgment and decree of Basheer Ahmed Sayeed, J., confirming the judgment and decree of the City Civil Judge, Madras, granting the respondents, the Madras Handloom Weavers’ Provincial Co-operative Society, Ltd., damages of Rs. 464 regarding five kegs of hydro sulphate of soda solidified by the water used by the appellant’s servants (the fire extinguishing squad) for putting out an accidental fire in a wagon containing 300 kegs of hydro sulphate of soda got by the respondents from Imperial Chemical Industry, Ltd., Bombay, to Salt-Cottars, Madras, for their use.

The facts are briefly these: The respondents had ordered for 600 kegs of hydro sulphate of soda from the Imperial Chemical Industry, Limited, Bombay. They were sent to Salt Cottars, Madras, in two waggons of 300 kegs each. When the respondents went to take delivery of the 600 kegs they found that one waggon of 300 kegs had not been affected by fire or water, but that in the other waggon 22 kegs were completely burnt out by the accidental fire, and the contents of five more kegs had become solidified on account of the water used by the appellant’s servants to extinguish the fire. The respondents therefore filed the suit, O.S. No. 45 of 1949, in the City Civil Court, Madras, for recovery of Rs. 2,605-12-0 from the appellants towards the value of 27 kegs, viz., the 22 kegs completely burnt out by the fire and five kegs whose contents were solidified by the water used for extinguishing the fire. The City Civil Court considered that there was not even negligence, let alone misconduct, on the part of the Railway Administration regarding the fire or the accidental destruction of the 22 kegs which were burnt out by the fire but that the use of water by the fire extinguishing squad, the servants of the appellants, for putting out the fire, instead using gas or sand, was a negligent act amounting to misconduct and that but for the use of such water the contents of the five kegs would not have got solidified and become useless, and that, since the five kegs and the contents were rendered completely worthless by such misconduct, the appellants would be liable for the value of the contents, viz., Rs. 464 so damaged. It granted a decree for that amount alone with subsequent interest and proportionate costs.

The appellant filed an appeal, C.C.C. A. No. 107 of 1951. Basheer Ahmed Sayeed, J., who disposed of the appeal confirmed the finding of the trial Court and held that though the appellants had not been responsible for the fire by any negligence of theirs, let alone misconduct, and had used water to extinguish the fire in all good faith, they had, by error of judgment amounting to misconduct, not used gas or sand, but water. So he held that while they were not responsible, therefore, for the loss of the 22 kegs by fire, they must be held responsible for the spoiling of the contents of the five kegs by solidification by water, as use of water amounted to misconduct. So he confirmed the judgment and decree of the trial Court and directed both parties to bear own costs. Hence this appeal.

We have perused the records and heard learned counsel on both sides. S.S. Ramachandra Ayyar, counsel for the Railway Administration, urged that a mere error of judgment or an act of negligence on the part of the appellants’ servants in using water would not do for proving misconduct on the part of the Railway Administration under section 72 of the Indian Railways Act, and entitle the plaintiffs to damages. He relied on the ruling of the Privy Council in Dwarka Math v. R. S. M. Co., Ltd1, where it has been held that in a moment of extreme peril and difficulty we cannot expect perfect presence of mind, accurate judgment, and promptitude on the part of persons facing an extremely difficult situati

Click Here to Read the rest of this document