Sarjoo Prosad, C.J.
1. This is an appeal arising out of a suit instituted by the plaintiff for recovery of damages on account of delay in delivery of certain goods consigned, and also for compensation of loss of a certain quantity of the goods during transit. The plaintiff happened to be the endorsee of a consignment of 100 bags of sugar weighing 178 maunds and 15 seers, covered by Invoice No. 1, dated 4-11-48, booked at Padrawana Railway Station to be delivered at Nowgong Station, over the then Assam Railway, now the North-Eastern Railway.
In the ordinary course, it was expected, as the plaintiff suggests, that the consignment should have reached its place of destination within a fortnight, but due to some irregularities in transport or booking, the consignment did not reach the Nowgong Railway Station until 12-3-49. When the consignment reached its place of destination, the plaintiff produced the Railway Receipt and asked the Station Master to deliver the consignment to him, but the latter refused delivery without the permission of the proper authorities as the consignment arrived under a memorandum of free service delivery. For that reason, there was delay in making over the consignment, which was ultimately delivered to the plaintiff on 28-4-49,
On taking open delivery, it was noticed that there was shortage of 33 maunds and some seers of sugar, The Station Master, Nowgong, then granted a certificate of shortage showing a sum of Rs. 1338/8/- as the price of 33 maunds, 13 1/2 seers of sugar at the rate of Rs. 40/- per maund, payable to the plaintiff on account of that shortage. The plaintiff alleged that after obtaining delivery, the plaintiff sold the sugar, which it purchased at Rs. 37/- per maund. for Rs. 34/- per maund only, though the market price at the time when the consignment reached the Nowgong Railway Station was Rs. 40/- per maund.
On account of this deferred delivery, the plaintiff claimed to have sustained a loss of Rs. 1468/12/-. as it was due to the wilful negligence of the Railway that the plaintiff could not obtain delivery in time soon alter the arrival of the consignment. The claim of the plaintiff thus consisted of a sum of Rs. 1338/8/-, for which a shortage certificate Had been granted, and another sum of Rs. 1468/12/-on account of loss due to deferred delivery. He also claimed Rs. 300/- as business loss, and some amount as refund of- proportionate freight paid for the quantity of sugar found short. The latter two items are not relevant for consideration at present.
2. The Union of India, the principal defendant representing the Railway, entered appearance and fined a written statement contesting the claim. In the written statement in question, it agreed to pay a sum of Rs. 1102/4/- as the price of 27 maunds and 22 1/2 seers of sugar admitted to have been found short at Rs. 40/- per maund, but it repudiated the other claims of the plaintiff. There was, however, no contest at the time of the hearing of the suit and no evidence was led by the defendant.
3. The learned Additional Subordinate Judge decreed the plaintiff's suit on the basis of the short delivery certificate, as claimed by the plaintiff, for a sum of Rs. 1333/8/- only. That decree has now become final, there being no appeal against the decree in question at the instance of the Railway. The claim of the plaintiff was, however, dismissed in other respects.
The learned Subordinate Judge found that although the consignment arrived on 12-3-49, the delay in making over the consignment to the plaintiff was occasioned by the fact that it came under a free service memorandum; and the then Station Master who was examined as a witness on behalf of the plaintiff, could not connect the consignment with the Railway Receipt produced by the plaintiff. In such circumstances, the witness explained that, without the permission of the higher authorities, he could not give delivery of the goods on his own responsibility.
He therefore, made a reference to the District Traffic Superintendent, at Luming, and it was only when permission was obtained that the delivery of the goods could be made to the plaintiff. On those facts, the learned Subordinate Judge held that there was negligence and carelessness on the part of the Railway authorities in sending the consignment under a free service memorandum which occasioned the delay in making delivery of the goods; but he was of the view that the plaintiff was not entitled to recover any damages on account of any loss which it suffered owing to the fall in the price of the goods, as, in his opinion, it was some kind of special damage claimed by the plaintiff, and the Railway authorities did not guarantee delivery within any definite time or period.
He was also of opinion that the plaintiff actually did not suffer any loss, but made a profit of annas -/12/- per maund on account of the sale of the sugar. There is no clear finding in his judgment as to what actually the price of the sugar was on the date the consignment arrived. But, on the evidence of Durga Datta Agarwalla (P. W. 1), he was of opinion that from November, 1948, to April, 1949, the price varied from Rs. 34/- to Rs. 40/- per maund, and that on 28-4-49, sugar was sold at Nowgong at Rs. 34/12/- per maund.
4. Against the decree of the learned Subordinate Judge refusing the other claims of the plaintiff, there was an appeal. The appeal was Heard by Sri R. Hazarika, Additional District Judge. Nowgong. At the appellate stage also, the defendant did not appear to contest, nor has it contested the
present appeal before this Court. So, in both the Courts, the appeals have been heard ex parte.
5. As already pointed out, the decree for a sum of Rs. 1333/8/- granted by the learned Subordinate Judge remained unchallenged. The only question before the lower appellate Court was whether the plaintiff should get a decree for loss on account of delay in delivery of the goods due to the carelessness and negligence of the Railway. The appellate court affirmed the decree of the learned Subordinate Judge on the point. It apparently did so for two reasons.
In the first place, it said that the Railway could not be liable for such a loss of profit, because it was a 'remote expectation', as he puts it, when the Railways did not guarantee the despatch of goods within a certain time or to effect delivery on a certain date. The second reasoning on which the judgment of that court is based is that the plaintiff's evidence on the point of the price of goods on the date when the consignment arrived was meagre, and it could not be said with precision and detiniteness that the prevailing market price of sugar in Now-gong was Rs. 40/- per maund on 12-3-49 when the consignment reathed the destination Station. Both these reasons of the Court of Appeal below have been seriously questioned before us in this appeal.
6. On the first point, the Court below seems to be clearly wrong. It it is a fact that the consignment reathed the destination Railway Station on 12-8-49, as it appears to have been found, and which finding is not disputed, then there is no reason why the goods should not have been delivered to the plaintiff within a reasonable time, and the Railway authorities should have failed to deliver the goods until 28-4-49.
The reason which has been assigned by the then Station Master, Nowgong, who has been examined for the plaintiff is that the goods came under a free service delivery memo; and he, therefore, did not find it possible to connect the goods with the Railway Receipt produced by the plaintiff. It was clearly the fault and negligence of the Railway Company to have sent the goods in that form. The learned Subordinate Judge was thus right in holding that there was negligence in not making over the goods to the plaintiff in due time owing to the fault of the Railway. That being so, if any loss was occasioned to the plaintiff on account of this deliberate failure to deliver the goods in due course, as the Railway should have done, the Railway would be certainly liable for this loss.
It is not a case of any remote expectation or remote damages whatsoever. It is the duty of the Railway to deliver the goods in due course to the consignee and within a reasonable time of the arrival of the goods. If, on account of the fault of the Railway and the negligence of its employees, it delays the delivery of goods to the consignee or the person entitled to receive delivery of them, and thereby causes loss to the person concerned, then the Railway must be held responsible for that loss.
On the facts of this case, it is quite clear that the Railway had no valid justification for delivering the goods on 28-4-49 when the goods had arrived on 12-3-49, and the delay occasioned, even if attributable to the free service memo, was entirely on account of its own negligence. The free service memo had nothing to do with consignments of this nature, as such memos relate to the goods of the Railways carried for their own purposes. The Courts below were, therefore, in error in holding that the plaintiff was not entitled to recover any damages on account of the loss sustained oh that account.
7. The question then is about the quantum of the damages. The plaintiff has claimed damages at the rate of Rs. 40/- per maund as it is asserted that that was the prevailing market price of sugar on the date the consignment arrived, and if delivery had been given in due time, the plaintiff would have been able to sell the sugar at that rate. It was because of the unreasonable detention that it could not obtain the goods until 28-4-49 by which date the price of sugar had gone down to Rs. 34/12/-per maund only, as found by the trial Court.
It is true that the burden of proving the prevailing market price was upon the plaintiff; but the learned Additional District Judge, in dealing with the matter, has not discussed the evidence on the point at all, and is content with the observation that the evidence is meagre. It is contended by the learned counsel for the plaintiff that the Court has ignored the admission of the market price of sugar on the date of arrival of the consignment by the defendant itself as given in the certificate of shortage, which shows Rs. 40/- per maund.
It also appears from the written statement that this claim of the plaintiff about the prevailing price of sugar on the date in question was not specifically challenged. On the contrary paragraphs 5, 6 and 7 of the written statement go to show that the defendant accepted the price of Rs. 40/- per maund to be correct. These factors also corroborate the evidence of the witness Durgadatta Agarwalla (P. W. 1) who stated that the price was Rs. 40/- per maund on 13-3-49, but thereafter the price started declining. It is also important to remember in this connection, that the claim on account of the shortage was not contested by the defendant, and the decree remained unchallenged.
That being so, the observation made by the Court of appeal below on that point is incorrect. It has ignored altogether the considerations which I have discussed above. Such an observation, therefore, cannot be regarded as any finding of the Court of appeal below on that point, as it completely ignores the relevant factors which it had to take into account in arriving at an appropriate finding. The finding, therefore, is a mere pretence of a finding and cannot bind us in this appeal.
We hold that, in the circumstances, the plaintiff's claim that the prevailing market price of sugar was Rs. 40/- per maund on 13-3-49 has to be accepted, and indeed has been impliedly admitted by the defendant itself. We find, however, that the plaintiff actually sold the sugar at Rs. 34/12/- per maund. Accordingly the plaintiff would be entitled to a decree for the difference in the price at Rs. 5/4/-per maund, and the claim will have to be modified accordingly.
8. In regard to the claim as to business loss or refund of proportionate freight, the decree of the Court below stands.
9. The appeal is accordingly allowed, and the decree of the Court of appeal below shall be modified. As the respondent has not appeared to contest this appeal, there will be no order as to costs of this appeal. The amount decreed shall be paid within three months of the date of preparation of the decree.
Ram Labhaya, J.
10. I agree.