JUDGMENT : Panigrahi, C.J. - This is a Defendant's appeal against the decree directing recovery from him of a sum of Rs. 6,875/- as damages for short delivery in respect of a consignment of 700 tins of cocoanut oil. The Plaintiff's case is that 700 tins of cocoanut oil were handed over to the South Indian Railway at the Cochin Out-Agency Station for being transported to Khariar Road Station on he Bengal Nagpur Railway, by Invoice No. 1 of 11th December 1943. The tins were loaded in Wagon No. G.I.P. 14608 and the consignment travelled over several stations on the South Indian Railway, the Madras & Southern Maharastra Railway and the Bengal Nagpur Railway, before it reached its destination. In the usual course the consignment should have reached its destination by the 22nd December, 1943, but it is said that due to the misconduct of he railway administrations the tins were actually delivered on 11th January 1944 in a badly damaged condition. It was found that there was a shortage of 152 mounds and 10 seers of oil at the time of delivery. Some of the tins had been out, a large number of them were badly dented and were found in a leaking condition with holes and cut works. The Plaintiff claimed Rs. 7,612/- at the rate of Rs. 50/- per mound for shortage of oil; and including other sums for damage and interest, a total of Rs. 8,700/- was claimed. 2. The trial court disallowed the claim in respect of 20 mounds of oil as he found that leakage of oil to the extent of 20 mounds might have been due to natural causes. He also disallowed the claim for interest. In the result he awarded a decree for Rs. 670/- together with proportionate costs. 3. The Defendants raised a number of pleas in the lower court which were all over-ruled. In this appeal the only points that have been urged, on their behalf, are: firstly, that misconduct on the part of the railway administration has not been made out and that therefore the Plaintiff is not entitled to any compensation; secondly, that since no notice u/s 80, CPC was served on the Bengal-Nagpur Railway administration the suit, as against that railway, should be dismissed. 4. In order to appreciate the first contention it is necessary to state a few facts which have either been admitted or proved. 4. In order to appreciate the first contention it is necessary to state a few facts which have either been admitted or proved. The Plaintiff examined five witnesses to prove how the consignment was packed and loaded at the Cochin Harbour Terminus Station on the South Indian Railway, namely, P.W. 1 the Manager of the despatching firm, P.W. 2 the loading clerk, P.W. 8, the cashier, P.W. 4, the accountant of the firm, and P.W. 5 the local employee of the Plaintiff at Cochin Harbour Terminus Station. Their evidence discloses that the tins were selected and purchased from the market, filled up with cocoanut oil and soldered under their supervision. These tins were kept in the godown of the consignor for two days to test whether any of them were liable to leakage. Thereafter they were despatched in barges to the Cochin Harbour Terminus Station and loaded in Wagon No. G.I.P. 14608 on the South Indian Railway. The manner in which the tins were loaded under the direct supervision of P.W. 5 has been spoken to by him in great detail. He says that straw was spread on the floor of the wagon and on it a layer of tins was placed; a second layer of straw was thrown on the tins before the second layer of tins was placed; and a third layer of straw was again placed before another layer of tins was loaded. The sides of the wagon were packed with straw and the topmost and the lowermost layers of bins were bound with rope passing through the sides. The packing was done in such a way that there was no possibility of the tins being displaced by shunting or movement of the wagon. It was further stated that each one of the tins was tied with rope. This fact is borne out by Risk Note B (Ext. 3) which describes the packing as "filled in second-hand tins, and soldered and tied with ropes". The wagon was therefore sealed and riveted and it reached Jalarpet railway station on the 15th December 1943. D.W. 11, Venkatapathy, the Assistant Transhipment Clerk at Jalarpet, broke the seals of the wagon, unloaded some of the tins and re-adjusted them. 3) which describes the packing as "filled in second-hand tins, and soldered and tied with ropes". The wagon was therefore sealed and riveted and it reached Jalarpet railway station on the 15th December 1943. D.W. 11, Venkatapathy, the Assistant Transhipment Clerk at Jalarpet, broke the seals of the wagon, unloaded some of the tins and re-adjusted them. His explanation is that he found a shortage of 5 mounds and 24 seers at that station and that he adjusted the tins in such a way that there would be no scope for further leakage and according to him the leaking had stopped This witness says that the "tins were tied with ropes" though he reluctantly admits that there was "some straw on the sides of the wagon". He says that, after adjustment, the wagon was left in the Transhipment Shed, to the care of the Watch & Ward staff and pretends that he does not knew when the wagon actually left Jalarpet Station after he had readjusted the tins on the 16th December 1943. The reason for his not attending to the wagon immediately is given by him and he says that the leakage in the wagon was not serious and he therefore dealt with the matter leisurely. He admits that the seal of the wagon was opened by him in the presence of the Ravildar of the Watch & Ward Department, and not in the presence of any responsible officer of the railway administration or of the Police. He says that the tins were packed with straw only at the sides of the wagon and that they were not tied with ropes. When pressed in cross-examination as to whether the tins had been individually tied with ropes all that he could say was: "I cannot definitely say whether the tins in the wagon were tied with rope individually". He admits that he did not send any message I/o the consignor regarding the leaking condition of the wagon. The only readjustment he made was to adjust the leaky tins in such a way that there would be no further leakage. He did not report to the Assistant Station Master as to how he adjusted the tins though he admits that his duty is to report to the Chief Station Master and take his advice as to what should be done. He did not report to the Assistant Station Master as to how he adjusted the tins though he admits that his duty is to report to the Chief Station Master and take his advice as to what should be done. He admits that he was the only person who dealt with wagon No. GIP. 14608, and it is clear from his evidence that he did so on his own responsibility without the knowledge of the Chief Station Master. 5. The next station where the consignment was handled was Katpadi on the South Indian Railway. D.W. 3 the Assistant Transhipment Clerk at that Station dealt with the wagon on 20-12-43, that is one day after it actually reached the station. He removed the tins from the wagon in which they were being carried to another wagon namely, E.I.R. 34096-apparently without any authority. He says that he found the oil leaking through the soldering and found 25 tins completely empty and ten tins half empty. The Chief Transhipment Clerk who is alleged to have authorised him to tranship the time from one wagon to another was not examined, nor is any authority from him proved. D.W. 3 says that no tin was damaged or smashed. He further says that they were not tied with ropes-a statement which it is very hard to believe. This witness also broke the seal of the wagon only in the presence of the Spicy of the Watch and Ward Department. According to his statement the quantity of straw that he found in the wagon was only sufficient for one layer and all that straw was placed at the bottom of the wagon, but this version conflicts with the version given by the previous witness that he had found enough straw to provide for more than one layer. 6. Tondiarpet Station is 100 miles away from Katpadi and D.W. 6 the weigh-bridge clerk again removed the tins from the wagon and re-adjusted them for the third time. He also admits that he did not send any message to the consignor or consignee inspite of the fact that he noticed heavy leakage. The note made by him shows that all the tins had been damaged and 109 were quite empty and 98 were half empty. He also admits that he did not send any message to the consignor or consignee inspite of the fact that he noticed heavy leakage. The note made by him shows that all the tins had been damaged and 109 were quite empty and 98 were half empty. He says that the tins were very old and used and had weak solderings He gives a graphic description of how he found the consignment when he broke the seals of the wagon. He says that in the middle of wagon No. F.I.R. 34096 the tins had fallen one above the other and their arrangement had been dislocated. If the tins, had been secured with ropes, as they had been alleged a the Station of origin, this would not have been possible. He says "the tins in the wagon were arranged on straw. I am quite sure about it" thus contradicting the Katpadi and Jalarpet witnesses. 7. It appears therefore that the railway employees at the intermediate stations took liberties with the wagon each according to his own way, broke the seals, removed the tins and re-adjusted them, each according to his fancy. Although there is a definite admission on the side of the Defendants that the consignment had been secured with straw packing and tied with ropes, each one of the witnesses gives his own version with regard to the nature of the packing. The trial court was therefore perfectly justified in characterising the conduct of the railway employees as "creating a havoc in between the stations Katpadi and Tondiarpet". Having regard to the nature of the evidence given by these witnesses and their status the learned Subordinate Judge was justified in refusing to place any reliance on their testimony. 8. The next witness who dealt with the consignment was D. W. 8 the Station Master of Venkatachellum Station. After detaching the wagon from the through train he detained it at his station. He says "With tin tumblers I collected the oil from the floor of the wagon and poured it into the empty tins". It is difficult to imagine how he could find holes large enough, through which he could pour oil into the empty tins if the leakage was caused by had soldering. Who opened the &ins, and where they were opened -have all been left unexplained. It is difficult to imagine how he could find holes large enough, through which he could pour oil into the empty tins if the leakage was caused by had soldering. Who opened the &ins, and where they were opened -have all been left unexplained. This witnesses said that there was no packing between the rows or between one layer and another even, and that be collected some waste straw from the goods shed and used it for packing purposes. He has made the further admission that he went for food at about 3 P.M. without either sealing the wagon or taking any precaution against pilferage. He attempts to throw the responsibility for the leakage on the officials at Katpadi. The wagon was detained for about 17 hours ab Venkatachellum station, and it is surprising that the entire consignment was not lost having regard to the fact that the wagon was left unguarded, with the seal broken. 9. The next station to be reached was Bazwada where Durvasalu, the Road Goods Clerk, dealt with the consignment. According to him he put sand on the door ways of the wagon to arrest the oil from flowing out; and collected the stagnant oil and put it into the empty tins. This again would show that the bins had been out and opened in such a way is to permit oil being poured back into them. 10. There appears to have been no further tampering with the wagon until it reached its destination, namely Khariar Road. 11. The condition of the consignment at the time of taking delivery is described in Ext. 12, the certificate of damage given by the Station Master, Khariar Road. The condition of the consignment at the time of survey is described as "All tins tied with rope individually". 295 tins were found partly empty, 19 tins were partly out and 20 burst. The shortage was found to be 152 maunds and 10 seers. The evidence leaves no room for doubt that the tins had been out and the content pilfered at the intermediate stations where the railway administration employees who dealt with the wagon had each his own way and that the loss was not due to natural leakage or to any accident. 12. The Defendants rely upon the protection given to the railway administration under Risk Notes A and B which had been signed by the consignor. 12. The Defendants rely upon the protection given to the railway administration under Risk Notes A and B which had been signed by the consignor. But the evidence adduced by the Railway administration itself shows that the loss or damage arose from the misconduct on the part of the railway servants. From the evidence given on the side of the Plaintiff it appears to us that at the time delivery of the tins to the railway administration at Cochin Harbour Terminus they had bean securely packed and tied with rope so as to reduce loss by leakage to the minimum. If the consignment had been left intact without any interference from the railway servants at the intermediate stations, the Plaintiff would have had no cause to complain of leakage. But having regard to the evidence as to how the consignment was dealt with by the railway servants at the different stations mentioned above, while the consignment was on transit any argument based on protection afforded by the risk notes A and B must be ruled out. 13. We are satisfied that the South Indian and the Madras & South Mahratta Railway administrations have been guilty of gross misconduct in dealing with the Plaintiff's goods and it was due to their employees that the loss was caused. In agreement with the learned Subordinate Judge, therefore, we would hold them responsible for the loss caused to the Plaintiff. 14. As the wagon travelled from Bezwada (on the M. & S.M. Railway) to Khariar Road Station on the B.N. Rly. without any interference from any railway employees enroute it is not possible to fix any part of liability on the Bengal-Nagpur Railway administration. We would, therefore, absolve the Bengal Nagpur Railway of any responsibility for the loss or damage sustained by the Plaintiff. In view of this finding it is unnecessary to discuss whether the non-service of notice u/s 80 CPC on the Bengal Nagpur Railway administration would be fatal to the Plaintiff's suit. 15. In the result we would decree the Plaintiff's suit as directed by the Court below, as against the Dominion of India representing the South Indian and the Madras and Southern Mahratta Railway administrations. 15. In the result we would decree the Plaintiff's suit as directed by the Court below, as against the Dominion of India representing the South Indian and the Madras and Southern Mahratta Railway administrations. While absolving the Bengal Nagpur Railway of any liability we would not make any order as to the costs of that administration as the Plaintiff had taken care to serve a notice u/s 77 of the Indian Railways Act before the Bengal Nagpur Railway was taken over by Government. 16. The appeal therefore fails and is dismissed with costs, subject to the modification as above. Mohapatra, J. 17. I agree. Final Result : Dismissed