Bombay High Court
Chief Commercial Superintendent Of ... vs Anand Kumar on 19 September, 1996
Equivalent citations: AIR1997BOM378, AIR 1997 BOMBAY 378, (1996) 2 GOALT 267
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER Tipnis, J.
1. The respondent, Original, Plaintiff filed Civil Suit No. 6/82 in the Court of District Judge, South Goa, Margao, against the Chief Commercial Superintendent of Railways Secunderabad and Union of India for damages. The plaintiff claimed that he delivered a bicycle value at Rs. 250/- at Varanasi Railway Station on 17 May, 1981 for transporting the same to Margao Railway Station. He also paid freight charges of Rs. 44/-. The consignment, namely the bicycle never arrived at Margao. Plaintiff wrote, several letters as also two registered letters and claimed damages. However, the Railway Authority did not care to respond to the same. Thereafter, the plaintiff was constrained to issue notice to both the Defendants under Section 80 of the Civil Procedure Code as also under Section 78-B r/w Section 73 of Indian Railways Act. In the suit, the plaintiff claimed damages as under :-
1. Rs. 250.00 towards value of the bicycle.
2. Rs. 44.00 towards freight charges.
3. Rs. 6.00 towards expenses of cor-
respondence.
4. Rs. 864.00 towards travelling expenses for 288 days incurred by the plaintiff at the rate of Rs. 3/-
per day to go to Colva and to come back to Margao daily in connection with his business.
5. Rs. 50.00 towards the expenses of legal notice Total Rs. 1214.00 The plaintiff also claimed interest on the principal amount and costs of the suit as also payment of Rs. 3/- per day from the date of the suit till the entire amount is paid.
2. The Defendants resisted a suit on several grounds. 'The main contention of the defendants was that in view of provisions of Sections 76 and 78, the plaintiff is not entitled to indirect or consequential damages and as such, the amount of Rs. 3/- per day claimed by the plaintiff till the filing of the suit for 288 days and thereafter till payment cannot be claimed or granted.
3. The learned District Judge decreed the suit with costs and directed that the defendants should pay to the plaintiff an amount of Rs. 1214 towards damages and a further sum Rs. 3/- per day since the time of the filing of the suit till complete payment. The Learned Judge further directed on amount of Rs. 1214/- interest at 12% per annum. In addition, he directed the defendants to pay the costs to the plaintiff at Rs. 1000/-.
4. Being aggrieved by the Judgment and Decree passed by the trial Court, the Railway Administration and the Union of India filed First Civil Appeal No. 67/87 and the learned single Judge by Judgement and Order dated 8th Sept. 1989 was pleased to dismiss the Appeal with costs.
5. Being aggrieved by the said Judgment and Decree of dismissal of the Appeal, the Railway Administration and the Union of India have preferred this Letters Patent Appeal.
6. With the assistance of the Learned Counsel on both sides, we have gone through both the Judgments and the relevant records.
7. Shri Bharne, the learned Government Advocate on behalf of the Appellants mainly challenged grant of Decree for alleged damages suffered by the plaintiff at Rs. 3/- per day for 288 days and thereafter from the date of the suit till payment. Shri Bharne in that behalf took us through the provisions of Sections 76 and 78 of the Indian Railways Act, 1890, as also the Judgment of the Apex Court and the Judgment of the Division Bench . Shri Bharne contended that a part of the Decree is absolutely illegal. Shri Cardozo, learned Counsel appearing for the Original Plaintiff supported the Judgment of the single Judge and contended that despite the provisions pointed out, the Judgment and Decree passed by both the Courts below should be maintained.
8. The provisions of Section 76 of the Indian Railways Act, 1890 clearly show that the Railway Administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railways administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or any of its servants. Provisions of Section 78 of the Act so far as relevant are as under :-
"Exoneration from responsibility in certain cases. Not withstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible
a).....
b).....
c).....
d) for any indirect or consequential damages or for loss of particular market.
Thus, it is clear that under the provisions of the Indian Railways Act, the Railway Administration shall not be responsible for any loss or damage which is indirect or consequential. The position is made absolutely clear by the Apex Court in the aforesaid decision in . In paragraph 10 of the Judgment, the Apex Court has observed as under :-
"The history and the object with which the radical provisions of the new Act were introduced bear testimony to change of the nature of the liability of the railway administration. But in order to avoid the payment of double damages. Section 76 and 78 have been inserted. In other words, where due to delay on the part of the Railway there is physical deterioration or diminishing of the value of the goods, the plaintiff cannot claim damages by way of loss of profits or loss of market plus damages sustained by the actual loss or deterioration of the goods. In such a case the plaintiff can claim only the actual loss in the value of the goods caused by destruction, damages of deterioration and not loss of profit. Section 78(d) which flows out of Section 76 clearly provides that the railway administration shall not be responsible for any indirect or consequential damages or for loss of particular market. The Solicitor General, therefore, rightly contended that in cases falling squarely within the four corners of Section 76 of the new Act. Section 78(d) will apply. In fact Section 78(d) merely incorporates the measure of damages as contemplated by Section 73 itself. It is well settled that the liability of an ordinary carrier even in the English common law does not extend to a damage which is indirect or remote. Loss of profit for loss of particular market has been held by a number of decisions to be a remote damage and can be awarded only if it is proved that the party which is guilty of committing the breach was aware or had knowledge that such a loss would be caused. Section 78(d), however, seeks to bar the remedy of this kind of damage. In the instant case, however as the plaintiff itself has not claimed loss of market or remote damages, the question of application of Section 78(d) does not arise. Moreover, in the instant case, it is conceded that there was no physical deterioration of the goods at all which were delivered to the consignee at Poona in the same condition as they were booked from Bhilai by the plaintiff. In these circumstances, the case of the plaintiff does not fall within the four corners of Section 76, nor does it fulfil any of the categories mentioned therein. If Section 76 does not apply to the facts of the present case, then Section 78 will also have no application, because Section 78 starts with a non obstante clause "Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible". We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a common carrier."
9. In our opinion, the position of Law is absolutely clears indicated in the aforesaid ruling of the Apex Court and thus, the award of damages of Rs. 864/- towards the travelling expenses for 288 days for going to Colva and returning to Margao and also the amount of damages at the rate of Rs. 3/- from the date of the suit till payment is clearly illegal. However, on the basis of material on record, the plaintiff is clearly entitled to all the other amounts claimed in the suit.
10. In the result, this Appeal is partly allowed. The Judgment and Decreed passed by the Learned District Judge, South Goa, on 27th Feb. 1987 as also the Judgment and Decree passed by the Learned Single Judge of this Court on 8th Sept. 1989 in First Appeal No. 66/87 is set aside and instead, it is directed that the plaintiff will be entitled to an amount of Rs. 350/-, which amount shall be paid by the Original Defendants to the plaintiff towards damages. The plaintiff shall also be entitled to interest at the rate of 10% per annum over the said amount from the date of the suit till payment. The plaintiff will be entitled to an amount of Rs. 1000/- towards the costs of the suit and an amount of Rs. 500/- towards the costs of the Appeal.
11. This Appeal is accordingly partly allowed. However, as far as the Letters Patent Appeal is concerned, the parties shall bear their own costs.
12. Appeal partly allowed.