M.L. Verma, J.
1. The suit, which ulminated in this appeal, was instituted by M/s Hindustan Lever Ltd., New Delhi (now the respondent and hereinafter referred to as the plaintiff) to recover Rs. 19,194.80 from the Union of India (hereinafter referred to as the appellant) or in the alternative from the New Bahadurgarh Delhi Transport Company. Bahadurgarh (now Respondent 2 and hereinafter called the. Transport Company) or both as damages for the price of Vanaspati, which had been destroyed in the accident which had occurred on the night intervening 5th and 6th June. 1962, at the Railway level crossing No. 44 (hereinafter called the level crossing) located on the highway carriage road connecting Delhi with Rohtak between the Railway Stations Sampla and Kalanaur, together with Rs. 2,006.38 as interest thereon at the rate of Rs. 9 per cent. per annum.
2. The case of the plaintiff is that it manufactures vanaspati products. M/s. Hans Raj Om Prakash, Kalanaur (Respondent 3). M/s. Kalu Ram Subh Karan Sethia, Hansi (Respondent 41 and M/s. Ruli Ram Kishan Chand. Jind Mandi (Respondent 5) are the wholesalers of its goods. In compliance with their orders, it (the plaintiff) despatched tins of Dalda and Lotus, 780 in number of various sizes and weights, against Rs. 19.194.80, through the Transport Company to be delivered in proportion to the orders placed by them at the towns of Kalanaur. Hansi and Mandi Jind. The Transport Company arranged to despatch the said consignment in truck No. PNK-6084 and the said tins of vanaspati were loaded in that truck on June 5, 1962. The said truck started from Delhi, loaded with the aforesaid tins of vanaspati, for the aforesaid places at or about the fall of night. A conductor and a coolie had accompanied its driver. At about 12.30 A. M.. the said truck approached the level-crossing. Since the sates of the level crossing were lying open on both sides, the driver continued driving the truck.When it (the truck) negotiated the level crossing, it was hit by the Down Flying Saucers goods train No. 138, and the said train carried it (the truck) to a distance of 1 kilometer. As a result of the said accident, the driver, conductor and coolie of the truck were killed, the truck was completely smashed and the tins were totally smashed and vanaspati was split and destroyed. Therefore, the plaintiff claimed the price of the vanaspati as damages and interest thereon, with the allegation that the aforesaid accident had taken place due to the negligence of the employees of the appellant, inasmuch as the gateman of the level crossing failed in his duty to shut its gates and the driver of the goods train failed to Pull out and drove it at a high speed. In the alternative, it was averred that if the driver of the truck was held guilty of negligence, the Transport Company be directed to pay the damages severally or jointly with the appellant. Interest pendente lite at the rate of 9 per cent, per annum as well as future interest at the same rate till realisation of the amount had also been claimed. The suit was instituted through Shri A.D. Moddie, who was the Principal Officer and Attorney of the plaintiff.
3. The suit was contested by the appellant (the Union of India) and the Transport Company, each raising the main defence, besides raisins other pleas, that the accident had taken place due to the negligence of the servants of the other. Hence, the suit was tried on the following issues:--
1. Whether the plaintiffs are a Public Limited Company with Shri A. D. Moddie as its principal officer (onus objected to).
2. Whether defendant No. 1, the Union of India through any of its officers or servants committed negligence on the night between 5th June. 1962 and 6th June. 1962 at the time of the accident? (Onus objected to).
3. Whether defendant No, 2 through any of its servants committed negligence on the night intervening between 5th June, 1962 and 6th June, 1962 at the time of the accident ?
4. In case of proof of issue No. 2 or issue No. 3, what amount of damages were sustained by the plaintiffs as a result of the loss suffered in the accident ?
5. Whether the plaintiffs are entitled to the interest on the amount of loss as suffered by them, if yes, at what rate ?
6. Whether the fact of the gate of the railway level crossing No. 44 remaining open at the time of the accident constituted negligence on the part of defendant No. 1 (Onus objected to).
6-A. Whether no valid notice was served on defendant No. 1 under Section 80, Civil Procedure Code ?
7. To what relief, if any and against whom, are the plaintiffs entitled The trial Court decided issues Nos. 1, 2 and 6 in favour of the plaintiff and issue No. 3 against it. Issue No. 6-A was decided against the Union of India. Under issue No. 4, the, trial Court assessed the damages suffered by the plaintiff at Rs. 19,194-80 and held under issue No. 5 that the plaintiff was entitled to claim Rs. 2,006.78 as interest for the period prior to the suit. As a result of the aforesaid findings, the trial Court granted the decree for the suit amount of Rs. 21.201.58 to the plaintiff against the appellant- It (the trial Court) did not give any direction with regard to payment of pendente lite interest. Aggrieved by the judgment and decree rendered by the trial Court, the Union of India has appealed.
4. The facts, that there was collision between the goods train and the truck carrying vanaspati at the level crossing on the night intervening 5th and 6th June. 1962, and at that time the gates of the level crossing were lying open, are quite plain and are admitted.
5. Assailing the findings recorded by the trial Court on issues Nos. 2, 3, 4, 5 and 6, Shri H.S. Gujral, learned counsel for the appellant, argued that the aforesaid collision of the goods train and the truck was not due to negligence of the employees of the appellant and that it was mainly due to the negligence of the driver of the truck, who had negotiated the level-crossing without caring for the approaching train, or at least the driver of the truck was guilty of contributory negligence, and as he was the agent of the plaintiff, the latter was not entitled to claim any damages. Continuing his arguments, the learned counsel maintains that since it was not proved that there had been total loss of vanaspati, the trial Court was wrong in allowing the damages at full price of the vanaspati and that no interest could be awarded on the said damages. In reply, Mr. M.J.S. Sethi, learned counsel for the plaintiff, supported the findings returned by the trial Court on these issues, and further claimed pendente lite as well as future interest Mr. Gujral thereupon pointed out, and it was not disputed, that the plaintiff did not prefer any cross-appeal or cross-objections for claiming pendente lite or future interest and, as such, he urged that it could not claim the same in this appeal which had been preferred by the unsuccessful party.
6. 'Negligence' may be defined as omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the human affairs, would do, or something which a prudent and reasonable man would not do. The said definition, therefore, assumes a duty to take care and it also assumes that the degree of the said care is to be measured by the standard of a reasonable man. So, negligence is a breach of duty to take care resulting in damage to one whether in person or property. The said duty to take care may be imposed by statute or it may arise due to relation in which one may stand to another, i. e., when the person or property of one is in such proximity to the person or property of another that if due care is not taken, damages may be caused by one to the other. When negligence is breach of duty to take care imposed by law, it may be called statutory negligence, and when it is breach of duty to take care arising out of circumstances of a particular case, it may be termed as actionable negligence. Like human errancy, actionable negligence may be manifold. It may be of various types, including contributory or composite negligence. 'Contributory negligence' is an expression which implies that the person, who has suffered damage, is also guilty of some negligence and has contributed towards the damage. In such a case, the Court has power to apportion the loss between the parties, who can be held guilty of negligence by act or omission on their part, as it deems just and equitable. On the other hand, 'composite negligence' would arise when negligent acts or omissions of two or more persons, have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and, as such, he is entitled to sue all or any one of the negligent persons for damages. It is no concern of his, whether there is any duty of contribution or indemnity as between the negligent persons. Similar view of composite negligence was taken in Maniula Devi Bhuta v. Manjusri Raha. 1968 ACJ 1 (Madh Pra) and K.V. Narasappa v. Kamalamma. 1969 ACJ 127 = (AIR 1968 Mys 345). In the case of statutory negligence, the same having arisen out of breach of statutory obligation, neither the defence of contributory negligence nor that of composite negligence, can be open or available to the wrong-doer. I am supported in this view by Bailey v. Geddes, (1938) 1 KB 156, and Caswell v. Powell Duffryn Associated Collieries Ltd., (1940) AC 152. When a railway crosses a public carriage road, the authorities owning the Railways are under obligation to erect and maintain good and sufficient gates across the road and must employ proper persons to man the same, so as to keen it open for the traffic and the vehicles to pass when no train is likely to pass and to shut the same when a train is approaching. S. R. 229/3 (b). which seems to have been made under the Railways Act and. as such, has the force of law, reads as under :--
'The gates or chains of these exempted level crossings may normally be kept open to road traffic but must be closed and securely fastened across the road for the passage of a train or trains or for other railway operations.'
7. Shri M.N. Budhwar (P. W. 4). who was Permanent Way Inspector at the relevant time, admitted that the level crossing was manned and three gatemen had been detailed there to work it, with eight hours shift. He further stated that the level crossing was provided with sates with road indicators in such a wav that when the same (gates) were closed, there was red light on both sides of the road. indicating that the level crossing was closed for traffic. He added that when the gates were open, there was green (and according to Shri S.H. Iyer. D. W. 2. yellow) light towards both sides of the road, indicating that the gates were open and it provided signal for the traffic to pass through the level crossing. Shri V.P. Soni. (D. W- 1) also admitted that when any train came, the gates were bound to be closed. There is evidence on the record, and it is not disputed, that Kewal was the gateman. who was on duty at the time of the accident. Ganga Ram (D. W. 4), who was engine driver of the goods train. B.S. Bhatia (D. W. 6). who was the guard, and Hari Dass (D. W) 12). who was fireman of the goods train, admitted that the gates of the level crossing were lying open at the time of accident and no gateman was present there. Shri V. P. Soni (D. W. 1). who was the President of the Committee, which was constituted by the Railways to make enquiry into the cause of accident, admitted during cross-examination that the accident had occurred due to the negligence of the gateman in keeping the gates of the level crossing open. It is therefore, proved unmistakably that Kewal. the gateman on duty, was guilty of gross negligence in not closing the gates of the level crossing, and since the gates were lying open there were green or yellow lights on both sides of the road, inviting the traffic, including the trucks, to pass through the level crossing. The driver of the truck was. therefore, justified in deciding to pass through the level crossing on seeing its gates lying open and the green or yellow light towards the road. The omission on the part of Kewal to close the gates of the level crossing constituted breach of duty imposed upon him by S. R. 229/3 (b). reproduced above. As such, he was clearly guilty of statutory negligence. The principle that a master is liable for the negligence of his servants, if committed in the course of his employment, is well recognised. If a servant is doing negligently something which he was employed to do carefully, the negligent act would be taken as having been committed in the course of his employment and the master is liable for its consequences. The statutory negligence, referred to above, arising out of the omission on the part of Kewal gateman to close the gates of the level crossing was admittedly committed by him during the course of his employment and, as such the appellant (Union of India), being his employer or master, was undoubtedly liable for the consequences, i.e., for the damages resulting to the plaintiff due to the aforesaid negligence. Since it was statutory negligence, which had been committed by Kewal, it was not open to the appellant to advance the plea of contributory or composite negligence in defence. Otherwise too, as remarked above, when the gates of the level crossing were King open and showed green or yellow lights on both sides of the road, indicating signal to the driver of the truck to pass through the level crossing, he cannot be said to be guilty of any negligence. Since there is no evidence on the record to show that the plaintiff had any power of control over the driver of the truck, the latter cannot be said to be his servant or agent. In that view of the matter, it would be idle to contend that the plaintiff was guilty of any contributory negligence. Even if it is assumed for the sake of argument --though not conceding -- that the driver of the truck was guilty of any negligence, it would then be a case of composite negligence and not that of contributory negligence. The proved fact that the goods train had carried the truck to a distance of one kilometer after the collision, from the level crossing does indicate that the goods train was being driven at a high speed. That would too show some negligence on the part of the driver of the goods train. But apart from this, as found above, the accident was mainly due to the negligence shown by Kewal gateman in not closing the gates of the level crossing.
It, thus, follows that the accident was due to the negligence of the servants of the appellant and the findings of the trial Court on issues No. 2 and 6 are correct and the same are affirmed.
8. Ganga Ram (D. W. 4), the driver of the goods train, stated that he could not see the truck because it was dark night and there was a cluster of trees, which were obstructing the view. Shri M.N. Budhwar (P. W. 4) too admitted that trees were standing on either side of the railway track near the level crossing and the said trees had been cut some time after the accident. Now, when the driver of the goods train could not see the truck approaching the level crossing due to a cluster of the trees, the driver of the truck could also not have an uninterrupted view of the approaching train. The evidence present on the record points out that besides there being a cluster of trees, referred to above, there was a curve in the road near the level crossing. In these circumstances it cannot be maintained that the driver of the truck could possibly conceive that the goods train had approached so near the level crossing that when he would negotiate it, there would be collision between the train and the truck. Further, as remarked in the preceding para., the gates of the level crossing were open and indicated a signal to pass by showing green or yellow light to the driver of the truck and the latter was justified in conceiving that the goods train was still far away and he would have sufficient time to pass through the level crossing safely. Therefore, in no case the driver of the truck can be said to be guilty of any negligence in driving the truck through the level crossing at the time of accident, and the trial Court was right in finding issue No. 3 in the negative.
9. The statements of Gian Chand Bansai (P. W. 2). R.N. Bansal (P. W. 3) and P.A. Gai (P. W. 6), when read together, point out unmistakably that the tins of vanaspati, 780 in number, of various sizes and weights, had been despatched on the, evening of June 5. 1962, through the truck involved in the accident, to be delivered at Hansi, Kalanaur and Jind Mandi, and that the price of the vanaspati contained in the said tins was Rs. 19,194.80. Their aforesaid statements receive ample support from the invoices (Exhibits P-14, P-15 and P-16). The evidence given by them further shows that the said vanaspati had been lost in whole in the accident and the same had to be sent again by the plaintiff to the aforesaid wholesalers on June 7. 1962. They are supported in that respect by Ext. P-8. Shri R. Bahadur (P. W. 8), who reached the scene of accident at about 11 A. M. on June 6, 1962. has sworn that all the tins of vanaspati had been broken and vanaspati had leaked out of the same and there was a total loss. His aforesaid statement was allowed to go unchallenged during cross-examination and there is no rebuttal of the same. The statements of Sarvshri S.H. Iyer (D. W. 2). B.S. Bhatia (D. W. 6), Mohan Singh (D. W. 7). Hardam Singh (D. W. 101 and Chander Bhan (D. W. 11), which are to the effect that all the tins of vanaspati had been crushed and the vanaspati had been split out on account of summer season, read consistent with the deposition of R. Bahadur (P. W. 8). So. on the said state of evidence, it is difficult to resist the conclusion that there had been total loss of vanaspati and, as such, the trial Court was justified in assessing the damages, suffered by the plaintiff, at Rs. 19,194.80, the same being the price of vanaspati which was completely destroyed. So the finding of the trial Court on issue No. 4 is again correct and the same is affirmed.
10. The proposition of law that in a Pure case of damages, interest cannot be awarded on the same for the period prior to the date of the suit, has been clearly laid down in Ratanlal Khushalrai V. Brijmohan Pralhadka, AIR 1931 Bom 386; Union of India v. Panipat Woollen and General Mills Co. Ltd., AIR 1967 Puni 497 and Bengal Nagpur Railway Company Ltd. v. Ruttanji Ranji. AIR 1938 PC 67. Therefore, in view of the said judgments, I feel no reluctance in agreeing with the learned counsel for the appellant that the amount of Rs. 2,006.78 could not be granted to the plaintiff by the trial Court as interest on the amount of damages of Rs. 19,194.80 for the period between the date of accident and the date of suit. As such. I find that issue No. 5 was wrongly decided by the trial Court in favour of the plaintiff and I unhesitatingly reverse the finding of the trial Court on that issue.
11. There can be three periods for which in the case of a decree for payment of money, interest may be allowed. The first period is the one which is prior to the date of the suit. The payment of interest for that period is a matter of substantive law and contractual liability, and is outside the scope of Section 34. Civil Procedure Code. According to Ruttanji Ranji's case, AIR 1938 PC 67 (supra) and Vithal Dass v. Rup Chand AIR 1967 SC 188, interest can be awarded for that period (1) when there is an agreement for payment of the same, or (2) when it is payable by the usage of trade having the force of law, or (3) when the payment of the same is contemplated by the provision of any substantive law. or (41 under the Interest Act. It may also sometimes be awarded under the rule of equity. The second period is the one which intervenes the date of suit and the date of decree. The Court granting the money decree has discretion to allow interest pendente lite i. e. for the second period UP to the limit of contractual rate. The third period is from the date of decree to the date of payment. For the said period, the Court granting the decree has discretion to allow interest, commonly known as future interest, on the amount adjudged, subject to the limit of 6 per cent. per annum, as it deems reasonable. Section 34. Civil Procedure Code, provides that the Court may. while awarding decree for payment of money, direct the payment of interest at such rate, as it deems reasonable, to be paid on the principal amount for any period prior to the institution of the suit, with future interest on such principal sum at a rate not exceeding 6 per cent. per annum. It is. therefore, clear that some direction with regard to payment of interest pendente lite or future interest has to be given in the decree. So, it would form part of the decree and, as such, it (the direction granting or not granting such interest) is appealable vide Section 96. Civil Procedure Code. The trial Court did remark in its judgment that it was not a fit case in which future interest could be allowed. Therefore, the plaintiff could file the cross-appeal or cross-objection from that part of the decree, refusing the future interest. It however, did not file any such cross-appeal or cross-objection and, as such. I am in agreement with the learned counsel for the appellant that the plaintiff has lost the legal right to claim such interest in this appeal, which was preferred by one of the defendants. The learned counsel for the plaintiff has, relying on Panipat Woollen and General Mills Co. Ltd.'s case AIR 1967 Punj 497 (supra), maintained that interest Pendente lite and future could be allowed, though the plaintiff did not file any cross-appeal or cross-objection. In that case too, there was no cross-appeal or cross-objection, claiming the pendente lite or future interest on behalf of the Panipat Woollen and General Mills Co. Ltd., but still, the Division Bench of this Court allowed pendente lite and future interest on the amount which was also assessed as damages. It, therefore, appears to me that pendente lite as well as future interest was allowed in Panipat Woollen and General Mills Co. Ltd's. case AIR 1967 Puni 497 (supra) under the provisions contained in Rule 33 of Order XLI, Civil Procedure Code. The said provisions empower the Appellate Court to pass any order, which ought to have been passed, irrespective of the fact whether the party, in whose favour that order is being passed, has filed any appeal or cross-objections. It has been observed in Giani Ram v. Ramji Lal, AIR 1969 SC 1144, that the expression 'which ought to have been passed', occurring in Rule 33 of Order XLI. Civil Procedure Code, means 'which ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.
12. As indicated in para. 7 above, it is in evidence from Shri V.P. Soni (D. W. 1) that the result of the enquiry held into the accident was that it had occurred primarily due to the negligence of the gateman in keeping the gate open. Thereafter the plaintiff had served notice under Section 80, Civil Procedure Code, on the appellant, but still the appellant did not care to pay the amount of damages or to settle the dispute with the plaintiff despite the fact that the result of enquiry, held by its employees into the accident, was against it Therefore, it appears to me that the sum of Rs. 19,194.80, the price of the Vanaspati which was assessed as damages, had been wrongly withheld by the appellant and the plaintiff was deprived of that amount and was further forced to resort to litigation. Therefore, especially in view of the judgment of the Division Bench in Panipat Woollen and General Mills Co. Ltd's, case AIR 1967 Puni 497 (supra). I feel that there were equitable and good grounds for awarding the pendente lite and future interest under the provisions of Rule 33, Order XLI, Civil Procedure Code. Since the trial Court did not record any reason for disallowing the said interest, I do not think that it had exercised the discretion, vested in it in the matter of grant of such interest, in a judicial manner. In the circumstances of the case, I feel that it would be justified and reasonable to grant pendente lite and future interest on Rs. 19,194.80 at the rate of 5 per cent. per annum.
13. It, thus, follows from the discussion above that except the attack against the finding recorded on issue No. 5, there is no force in the other contentions raised by the learned counsel for the appellant and the same are repelled and the appeal fails except to the extent that the amount of Rs. 2,006.78 could not be awarded as interest.
14. Consequently, I pertly allow this appeal to the extent of Rs. 2,006.78, and in substitution of the decree of the trial Court, pass a decree for Rs. 19,194.80 with interest at the rate of Rs. 5 per cent. per annum from the date of the suit till the date of payment with proportionate costs in favour of Messrs Hindustan Lever Ltd., plaintiff against the Union of India defendant. The appellant shall also pay the costs of the appeal to the plaintiff respondent. Lawyer's fee to be assessed at Rs. 19,194.80, of course subject to the filing of the necessary certificate.