The Railway Administration is not liable for the loss of goods entrusted to it as a bailee if it can prove that the loss was caused by an accidental fire over which it had no control and that it took all reasonable steps to extinguish the fire.

( 1 ) THIS appeal arises out of a suit filed by the Raigarh Jute Mills, Ltd. , a company incorporated under the Indian Companies Act, having its registered office at Raigarh for recovering from the Union of India owning the Bengal Nagpur Railway (now included in the Eastern Railway), Rs. 5,949/-for loss of a consignment of Jute which caught fire in transit. The original Court passed a decree in favour of the plaintiff-company for Rs. 5868/8/-with corresponding costs. Hence, this appeal.

( 2 ) BRIEFLY stated, the facts of the case are that on 11-2-1950 the plaintiff-company consigned from Katabanji, Railway Station, 320 bales of jute booked in two wagons as per contract evidenced by Invoice No. 33 and the relative Railway Receipt of 11-2-1950 to the plaintiff at Raigarh. The said bales were booked in two wagons in one, 162. bales were booked and these bales have been safely delivered to the plaintiff, and in the other (Wagon, No. 23127-GIP), 158 bales of jute were booked.

( 3 ) WHEN the goods train in which both these wagons were attached came at the platform of Bhimkhoj railway-station, on 12-2-1950 at about 12-30 in the noon, some smoke was seen coming out of the wagon (No. 23127-GIP ). The railway authorities immediately found that the contents of the wagon had caught fire. They got the wagon separated from the train. Attempts were made at Bhimkhoj station to extinguish the fire. It is stated that water from a well and water from the engine was used and sand was also utilised to extinguish the fire for about two hours but all in vain. Ultimately, this wagon was sent to Mahasa- round, a way-side station which is at a distance of 12 miles, because water was in plenty there. These 158 bales weighed 222 maunds and 7-1/2 seers, Delivery of the contents was given to the plaintiff. in the middle of the month of June 1950 in loose condition and at that time, the weighment was only 150 maunds and 38 seers. The goods were badly burnt and damaged. The claims officer of the railway assessed the damages at 50 per cent The assessment certificate is Ex. P-4 on record.

( 4 ) AFTER taking delivery, the plaintiff submitted his bill for Rs. 5,949/- in respect of loss and damage suffered, to the Railway Authorities and alleged that it was due to misconduct and wilful negligence on the part of the agents or servants of the said Bengal Nagpur Railway. It was alleged that the said wagon caught fire due to the misconduct and wilful negligence of the railway servants at Bhimkhoj station because they had failed to taka proper care of the said 158 bales of jute.

( 5 ) NOTICES under Section 77 of the Indian, Railways Act, 1890, and Section 80 of the Code of Civil Procedure were duly served but as no satisfactory result was obtained the plaintiff filed the suit for the recovery of the aforesaid amount on 22-1-1953.

( 6 ) A suit on the very same cause of action was also brought on the original side of the Calcutta High Court first, because the notice was given to the Railway at Calcutta but subsequently as it was found that the cause of action did not arise within the limits of the Calcutta jurisdiction, the suit was withdrawn from the High Court with permission to file a fresh suit at Raigarh and seeking condonation of the period between 18-1-1951 to 22-l-1953, that being the time which the plaintiff had spent in prosecuting the suit with due diligence and in good faith at Calcutta. The original Court gave the benefit of Section 14 of the Limitation Act so far as this period was concerned to the plaintiff and no grievance was made before us challenging the said finding of the lower Court.

( 7 ) IT is admitted that the consignment was booked under Risk Note 'a' which is Ex. P-8 on record. This Risk Note applies to goods which are either in bad condition or liable to damage, leakage or wastage, due to bad condition of packing. The Clause (a) in Risk Note 'a' provides that the Railway Administration is free from all responsibility for the cond