Bombay High Court
Madeshwara Cargo Movers vs Hindustan Cocoa Products Ltd. And Anr. on 5 November, 1992
Equivalent citations: 1993(2)BOMCR154, (1993)95BOMLR391
JUDGMENT
S.M. Daud, J
1. The present appeal by a common carrier is limited to questioning the quantum of damages allowed to the subrogee of the consignee that consignee then doing business in the name of Cadbury India Ltd.
2. The Cadbury India Ltd., now known as Hindustan Cocoa Products Ltd., were the manufacturers of a well-known beverage marketed in the name of 'Bournvita' and chocolates known as 'Five Star' and 'Double Decker'. They handed over to the appellant on 19-8-1981 a consignment of 553 cases containing Bournvita and chocolates of the make mentioned above. These were made over to the appellant at Thane and the consignment was to be delivered to the office of the Cadbury India Ltd. at Madras. Before delivery the cases were safely and soundly packed. While in transit by a goods-truck, the consignment got damaged. The goods had been insured with the subrogee, hereinafter referred to as 'the insurer'. The nature and extent of damage was got surveyed through a concern doing business in the name and style of Standard Surveyors Pvt. Ltd. at Madras. On the basis of the survey carried out by that concern, the insurer reimbursed Cadbury India Ltd., to the extent of Rs. 59,105.50 ps. Thereafter, the insurer joining with the Hindustan Cocoa Products Ltd., sued for recovery of the amount paid by it to the consigner. This was because the appellant though it had issued a damage certificate marked Exh. 17, refused to honour the claim made through a notice served upon it. The stand taken by the appellant need not be set out in full as the learned Counsel has very properly restricted it. He appear to the only point that could have been argued viz., the quantum of damages recoverable from his client by the insurer. On this subject Mr. Parmar submits that the survey report at Exh. 27 had not been duly proved. This Court by taking recourse to its powers under Order 41, Rule 27 of the Code of Civil Procedure, 1908 (the Code), should direct an examination of the surveyor. In the alternative, the insurer should be held disentitled to the amount in excess of Rs. 1137/-. Counsel for the insurer disputes this submission. His reply is that there is no deficiency in the record compelling recourse to Rule 27 of Order 41 of the Code. Next, the quantum of damages payable as ordered by the trial Court cannot be said to be erroneous. After all, the survey report was based upon the damage certificate issued by the Carrier and the assessment made on the basis thereof by the surveyor is just and proper.
3. Taking up for consideration the first point raised by Mr. Parmar, the insurer did not examine the surveyor and in fact made it clear that it had no intention to do so. In a sense Exh. 27 is not admissible except for the limited purposes of knowing the basis on which the insurer compensated the consignor. It would have of course been better if the person carrying out the survey had been examined, for that would have given us better material to proceed upon. The provision upon which Mr. Parmar relies, to the extent relevant, reads as under :
"Order XLI, Rule 27.
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in Appellate Court. But if --
(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined."
This rule has come up for consideration before the Apex Court on certain occasions and in one of them K. Venkataramiah v. A. Seetharama Reddy, , the Court cited with approval the decision of the Judicial Committee of Privy Council, Parsotim Thakur v. Lal Mohan Thakur . The citation from the Judicial Committee's decision reads as follows :
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent. "................................ It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
In K. Venkataramiah's case the Court phrased the ratio in the following words:
"Apart from this, it is well to remember that the Appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filed up so that it can pronounce its judgment in a more satisfactory manner. Such case will be one for allowing additional evidence 'for any other substantial cause' under Rule 27(1)(b) of the Code."
We need not refer to the passage from Sayed Abdul Khader v. Rami Reddy, , for it says the same thing as has been set out above. The question is whether we find ourselves disabled from pronouncing judgment without the deposition of the surveyor or for any other substantial cause. That the surveyor's deposition would have been of assistance is undoubtedly true. But then it is not as if that we are incapacitated because of the omission to examine him. As we shall show later the material available read together with the nature of the goods, which figure in this case, is more than adequate to affirm the assessment of damages made by the trial Court.
4. Exh. 17 is a damage certificate issued by the appellant on 26-10-1981. It is an enumeration to the physical damage suffered by a part of the consignment, as a result of the truck in which the consignment was carried overturning. The details of the damage are as set out below :
1. Double Decker - - 684 Boxes - outer bitumanised wrappers damp. The card board boxes and chocolates chocolates unaffected.
324 Boxes - outer wrappers and boxes wet and chocolates damp.
2. 5 star chocolate - - 360 Boxes - out bitumanised wrappers and card board wet and chocolates damp.
3. Bournvita- - - 27 Tins - diaphragm torn.
500 grams tins. 84 Tins - slightly dented.
1039 Tins - badly dented.
4. Bournvita- 4 Tins-diaphragm torn.
200 grams tins. 111 Tins-slightly dented.
344 Tins-badly dented.
Mr. Parmar does not dispute the carrier's liability vis-a-vis 324 boxes of Double Decker Chocolates and 360 boxes of 5 Star Chocolates. What he taken exception to, is the granting of damages for the remaining consignment shown as damaged. In considering this submission raised by the learned Counsel, we must not forget the nature of the goods figuring in this appeal. The beverage and the chocolates are manufactured by a world renowned manufacturer and the same have a world-wide reputation. The class which purchases the beverage and the chocolates comes from the fairly affluent sections of the society. These sections have a sensitivity and taste which has been catered to and cultivated by the manufacturers with some care and considerable expense. The normal reaction of a customer on offered a Bournvita or one of the brands of the chocolates mentioned above would be to recoil in horror from accepting it - what be the concession offered by the seller. Learned Counsel argues that what has to be taken into consideration when there is no damage is not the extra sensitivity betrayed by an advertisement-conditioned the spoiled section of the society, but the normal way of measuring damages in such cases. And that takes us to the law on the subject. Section 12 of the Indian Evidence Act, 1872, says that in suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant. Applying this section to the facts of the present case, it will not only be the market price, which will have bearing, but also the taste and prejudices of the class which consumes the Bournvita and the brands of chocolates manufactured by the consignee. That would be so because every fact having a bearing would have to be taken into consideration for determining the amount of damages. The Supreme Court in the Union of India v. The West Punjab Factories Ltd., affirmed the long standing rule embodied in section 73 of the Indian Contract Act, 1872. In so doing it said --
"It is well settled that it is the market price at the time of damage occurred which is the measure of damages to be awarded."
But that was in a case of textile goods and textile goods even though figuring in a carriage mishap, have a salvage value of some consequence. Counsel then turns on Union of India v. B. Prahlad and Co., . Avadh Behari, J., has set out the principle felicitiously at para 47 in these words :
"In damage to the goods, the measure of the plaintiff's loss will be the amount by which the value of the goods has diminished, e.g. the market value of the goods minus their value in their damaged state. The plaintiff must do all that he reasonably can to mitigate his loss, and if, for example, the damaged goods are still saleable, though at a lower price, the measure of damages will be the market price of the goods minus what they would have fetched in their damaged state if the plaintiff had sold them."
We are in respectful agreement with this exposition. The emphasis we would like to place is upon the words "the damaged goods are still saleable, though at a lower price." As said earlier, having regard to the class of customers for the beverage and the confectionary figuring in the present case, it is difficult to conceive of dented bournvita tins and chocolates figuring in the carriage mishap attracting buyers whatever be the rebate in the price offered by the seller. Counsel refers us to Savani Transport Pvt. Ltd. v. Gangadhar Ghosh, , to stress that the salvage value cannot be ignored and that whatever the disability, the Court cannot shrink from ascertaining the salvage value. In Savani Transport (supra) the Division Bench of the Calcutta High Court disallowed a part of the consignor's claim observing--
"We have not been able to trace any evidence on the record as to the nature, extent or condition of the damage of the goods received by the plaintiff............ But as we find no reliable evidence to show the nature, condition or extent of the damages of the remaining portion of the goods received, we do not think that the claim of the plaintiff for any further amount can be sustained."
From the above discussion it would appear that the goods figuring in the case before the Division Bench had a salvage value. This brings us to Exh. 27. The surveyor's non-examination is of course a factor militating against the acceptance of the contents of his report. But the subrogee is part of the nationalised insurance undertaking. It is entitled to a presumption of having acted reasonably and honestly. This, coupled with the class of customers-feature to which we have drawn attention, leads us to view the quantum found payable by trial Court to be just and reasonable. Affirming the decision of the trial Court, we dismiss the appeal. Having regard to the somewhat difficult nature of the issue that arose for decision, we leave the parties to bear their own costs in this Court.