J.B. Mehta, J.
1. These two appeals arise from a common judgment and involve common questions of facts and law and, therefore, they are being disposed of by me by this common judgment.
2. The plaintiff had filed two suits against the defendants for recovery of two sums of Rs. 8, 015-14-0 and Rs. 7, 544-14-0 as and by way of damages due to abnormal delay in transit and consequent fall in market in respect of the goods ordered by him. The plaintiff's case was that the plaintiff Manilal Chhaganlal Desai was the sole owner of business running in the name and style of A. M. Brothers at Jetpur. The plaintiff had booked two consignments of 55 and 50 cases of tea from Jadabpur in West Bengal which is known as Eastern Railway for conveyance and safe delivery to the plaintiff at Jetpur station which is in the Western Railway. The first consignment of 55 boxes weighed 4950 lbs. while the second consignment of 50 boxes weighed 4750 lbs. The rate as per the invoices for both those consignments was Rs. 3-8-0 per lb. The total invoice for the first consignment of 55 boxes was Rs. 17325/- as per Exs. 14 and 16 while the total invoice for the 50 boxes was of Rs. 16625/-as per Exs. 13 and 15. All those invoices were of 16th November 1954. The goods as per those invoices were despatched on 16th November 1954 from Jadabpur to Jetpur by the railway receipts at railway risk, dated 16th November 1954. It is not in dispute that the ordinary time for delivery of the said two consignments would be 15 to 20 days. As the said consignments were not delivered to the plaintiff, the plaintiff served two notices Exs. 18 and 19 to the Western Railway on 23rd February 1955 under Section 77 making a claim for non-delivery and to the Eastern Railway as per the two Exs. 21 and 22. It is also not in dispute that the said goods were not delivered as they remained lying in Sabarmati Yard from 9-12-54 to 24-4-55 because no proper labels were on the wagons The consignments ultimately reached Jetpur on 29th April 1955 and were offered for delivery to the plaintiff on 2nd May 1955 and were actually delivered on 3rd May 1955. The plaintiff made a remark at the time of delivery in the delivery book of Jetpur Station to the effect that the consignments had arrived after the period of 5 1/2 months and the quality had also deteriorated and the market value at the time had considerably fallen down, and that he was taking delivery of the consignments reserving the right to claim damages due to fall in the market and other damages. The plaintiff had also made a remark that five cases of tea had been received in tampered condition resulting in a shortage of 1 Md. 3 B. Seers. Remarks to this effect were also passed even on the back of the railway receipts. The plaintiff, therefore, gave statutory notices under Section 80 of the C. P. Code both to the Western Railway and the Eastern Railway on 8-5-55 and the replies from the Eastern and Western railway received on 18-8-55 are at Exs. 38 and 39. The Chief Commercial Superintendent had also sent after the statutory notice replies at Exs. 65 and 66 on 30th September 1955 wherein it was stated that regarding the claim for alleged fall in the market as well as for interest charges, the claim was not admissible as the railway administration could not be held liable for the day-to-day fluctuations in the market prices. Regarding the case of shortage it was stated that the refund order was being issued. It was also stated that the physical quality of the tea had not deteriorated. Thereafter the plaintiff filed the present two suits on 9th August 1955. The defendants were the Union of India owning both the Eastern and Western Railway. Both the railways denied the plaintiff's suit inter alia on the ground that the plaintiff was not the owner of the suit consignments and that the defendants were not guilty of any negligence and misconduct and were not liable to pay anything to the plaintiff, and that as the notice of claim under Section 77 of the Code was not given for loss and damages the suit must fail. The defendants denied that the market price had gone down or that the plaintiff was entitled to any damages as claimed and denied that the plaintiff had suffered any loss. Even though it was admitted that the notice was received by the railways, the same was stated to be not legal and proper.
3. The trial Court raised the following 8 issues:
(1) Whether the plaintiff is entitled to sue.
(2) Whether plaintiff is a firm and if so, whether the firm is not registered. If so, what is its legal effect.
(3) Whether plaintiff proves misconduct and/or negligence on the part of the railway administration or its servants.
(4) Whether delay caused in delivery of consignments amounts to misconduct and/or negligence.
(5) Whether the notices are valid and proper.
(6) What was the market rate on 29th April 1965? Whether plaintiff suffered loss of Rs. 1-8-0 per pound or any damages owing to fall in market?
(7) To what damages is the plaintiff entitled ?
(8) What relief can be granted ?
As the plaintiff was a registered firm, the first two issues were not pressed by the defendant and the finding of the Court on those issues were in favour of the plaintiff. The trial Court also found relying upon the evidence given by the defendant's witnesses themselves that because of the negligence of the railway staff, the wagons had remained at Sabarmati junction for a period of about 4 months and the plaintiff had proved negligence on the part of the railway administration as the goods could have been delivered much earlier than the date of the delivery. In those circumstances, the findings of issues Nos. 3 and 4 were in favour of the plaintiff. The trial Court, however, dismissed the plaintiff's suit holding:
(1) that as the notice claim under Section 77 was one of non-delivery, it was not a valid notice under Section 77 of the Indian Railways Act, and
(2) therefore, the suit must fail.
On that finding the trial Court held that there was no necessity of giving any finding on issues Nos. 6 and 7. However, in the alternative, the trial Court recorded a finding that the plaintiff had not produced such proof as would entitle him to any damages on the ground that the plaintiff had sustained any particular loss. It was, therefore, held that the plaintiff failed to prove his loss and he was not entitled to any relief. The plaintiff's suit having thus been dismissed, the plaintiff filed the present two appeals. The defendants did not dispute the finding of the lower Court as regards the negligence of the railway administration as on their own evidence it was clearly established that the wagon had remained at Sabarmati junction from 9-12-54 to 26-4-55 for want of proper labels. Mr. Daru, therefore, rightly did not challenge the said findings.
4. Two material questions which, therefore, I have to consider are: (1) as regards the validity of the notice under Section 77 of the Railways Act and Section 80 of the Code and, (2) as to whether the plaintiff had proved the claim of damages suffered by him.
5. As regards the notice under Section 77, the position of law has now been well settled by the decision of the Supreme Court in Jetmull Bhojraj v. D.H. Railway : 2SCR832 , where the majority view of Subba Rao and Mudholkar JJ. is that the object must have been to afford only a protection to the railway administration against fraud and not to provide a means for depriving the consignors their legitimate claims for compensation for the loss of or damages caused to their consignments during the course of transit on the railways and so the notice under Section 77 should be liberally construed. In that case within 6 months of booking the consignment, the consignor brought to the notice of the railway administration by a letter that part of the consignment bad not reached the destination and requested the General Manager of the Rail way to make a search for the goods without delay. That letter, in their Lordships' opinion amounted to a sufficient notice for the purpose of Section 77. Their Lordships pointed out that it was true that a claim for compensation had not been made by the consignor in the notice. How ever, such a claim must be deemed to be implied in the notice. The reason was obvious. Where a person said that his consignment had not been delivered as it should have been delivered according to the contract between him and the railway administration, he must be regarded as making it clear that he would be holding the railway administration to its contractual engagement which necessarily involved the payment of damages for breach of that engagement. In view of this pronouncement of their Lordships of the Supreme Court Mr. Daru also conceded that that point no longer survived and the trial Court's finding that the notice under Section 77 in the present case was illegal on the ground that it was the complaint merely of non-delivery must be overruled as even in such a notice, there is implicit claim for compensation as required under Section 77 of the Railways Act.
6. Mr. Daru, however, tried to support the finding of the trial Court on another ground which was not urged before the trial Court. Mr. Daru contended that issue had been raised in para 5 whether the notices were valid and proper and so he argued that the present notice' was obviously illegal, as it did not comply with the requirements of Section 80. Even without going into the question whether the point is deemed to have been waived by not urging the same before the trial Court; in my opinion, this objection of Mr. Daru cannot be sustained. Mr. Daru in this connection strongly relied upon a decision of Gajendragadkar J. (as he then was) in Damodar Shivram & Co. v. General Manager, M. & S.M. Railway in C.R.A. No. 812/1954. The date of the decision does not appear from the certified copy. In that matter a claim for Rs. 459-8-0 by way of damages had been made against the General Manager, M. & S.M. Railway, and the same was dismissed by both the Courts on the ground that the suit as framed was only against the General Manager, M. & S.M. Railway incompetent. It is mentioned in the recital of facts that the notice under Section 77 of the Railways Act and under Section 80 of the C. P. Code as well as the suit had been directed against the General Manager of the Company, whereas the notice under Section 80 of the Code should have been given to the Union of India, though it could have been left at the office of the General Manager, and the suit should have been also filed against the Union of India. An amendment to the plaint was sought in the appellate Court which was refused and so the revision application had been filed in the matter. While rejecting this revision application the learned Judge observed as under:
While dealing with the question as to whether amendment should have been allowed or not, it is necessary to consider whether the notice given under Section 80 was a valid notice or not. If the notice under Section 80 had been valid, perhaps Mr. Walavalkar would have been in a better position on the question of amendment. Mr. Walavalkar has referred me to a decision of this Court where notice given to the Governor General was liberally construed as amounting to a valid notice given to the Union of India. But this principle, I apprehend, cannot be extended to the present notice, because the present notice has been given to the General Manager of the Railway. By no stretch of imagination can it be said that the General Manager of the Railway represents the Union of India. Therefore, since the notice itself is invalid, allowing amendment of the plaint would serve no useful purpose. The suit even after amendment would be invalid for want of notice under Section 80. That is why I do not think Mr. Walavalkar is entitled to contend that the learned District Judge acted irregularly in refusing to allow the plaintiff to amend their plaint.
7. This decision is on its special facts and it can have no application to the facts of the present case. The claim in that case was made against the General Manager, M. & S.M. Railway. Both the notices under Section 77 of the Railways Act and Section 80 of the Code as well as the suit had been directed against the General Manager of the Railway company alone. If, therefore, the contents of the notice did not reveal any intention to sue the Union of India and if the Union of India was not even in fact sued, on a plain reading of the notice itself, there could be no other conclusion than one that the claim was only against the General Manager himself. Such a notice was, therefore, construed as a notice only against the General Manager and not as a notice given to the Union of India. The decision will, therefore, have to be confined to its own facts and no general proposition could be deduced as contended by Mr. Duru that even when a notice is merely delivered to the General Manager as required by Section 80 and the claim is made not against the General Manager himself but against the Union of India itself, in its capacity as the owner of the railway, and the notice is actually given to the railway administration and it actually reaches the railway and its receipt is even admitted by the Union of India, it should be held that such a notice does not comply with Section 80 of the Code.
8. In the C. P. Agencies v. State of Madras A.I.R. 1954 Nag. 242, a notice under Section 80 was addressed to the Secretary to the Commissioner of Civil Supplies, Government of Madras. The same, however was received by, the Secretary, Civil Supplies, Food Department, Madras. It was conceded that a notice addressed to the Secretary, Civil Supplies Food Department was a validly given notice as the Secretary, Food Department was the Secretary to the Commissioner. It was held at page 344 that the section did not prescribe any particular form of address. The contents of the notice left no doubt that it was a notice of suit against the State of Madras and the fact that it was received by the Secretary to that Government concerned was held sufficient compliance with the requirement of the delivery of notice of suit against the Government. There was another contention also that the notice did not disclose the cause of action. It was, however, held that the cause of action was substantially set out in the notice and that the requirements of Section 80 were substantially fulfilled. As pointed out by Pollock C. B. in Jones v. Nicholls (1844) 153 ER 150, we must import a little common sense into these notices as the object of the notices was merely to inform the Government and given sufficient warning of a case which was about to be brought against it, so that Government might if it so wished compromise the case or afford restitution if it considered that restitution was due without recourse being had to a Court of law in which Government might be mulcted in costs. This decision went in appeal and the appellate decision is reported in State of Madras v. C.P. Agencies : AIR1960SC1309 . The only controversy in the appeal was as regards the validity of the notice under Section 80. Their Lordships of the Supreme Court pointed out at page 1310 that the object of Section 80 was manifestly to give the Government or the public officer sufficient notice of the case which was proposed to be brought against it or him so that it or he might consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it was necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim was founded and the precise reliefs asked for. Their Lordships also held that Section 80 peremptorily required that no suit shall be filed against the Government or a public officer in respect of anything done in his official capacity until after the expiry of two months from the service of a notice in the manner therein prescribed stating the cause of action, the name, description and place of residence of the plaintiff and the reliefs which he claimed. The name, description and place of residence of the plaintiff and reliefs claimed had been sufficiently stated in the notice and as the cause of action was also found to have been sufficiently stated, their Lordships upheld the notice in that case as a valid notice. At page 1311 also their Lordships also approved the observations of Pollock C. B. in Jones v. Nicholls, as aforesaid, 'we must import a little common sense into notices of this kind', and the observations of Beaumont C. J. in Chandulal Vadilal v. Govt. of Bombay A.I.R. 1943 Bom. 138, 'one must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed. ' Their Lordships felt that the relief claimed in para 2 of the notice was that the Madras Government should pay up the amount and it was held that on a fair reading of the notice it could be said that all the facts were sufficiently stated as required by Section 80 so as to enable the Government to know what the plaintiff s claim was about and whether the claim should be conceded or resisted. It is true that the point which was canvassed before the Nagpur High Court in para 10 of the aforesaid judgment to which I have already referred to was not in terms canvassed before the Supreme Court. The fact, however, remains that the validity of this notice has been upheld by reading the notice by importing common sense consistent with the object underlying Section 80. Mr. Nanavati in this connection relied upon Nannah v. Union of India A.I.R. 1964 Raj. 41, where it was first held that both the notices under Section 77 of the Railways Act and under Section 80 of the Code might be combined under one notice. It was further held that even if a notice under Section 80 failed to mention the defendants whom the plaintiff wished to sue correctly or did not mention him at all except in a general manner, then his suit could not be rejected oft the ground that he had not complied with the requirements of Section 80 so long as he stated the cause of action which was the foundation of his suit and gave his own name, description and address and stated the relief which he claimed and so long as the party whom he subsequently sued was the party from whom he was entitled to that relief. The notice which the plaintiff gave in that case was held to be a valid notice and it was held that the notice was not bad merely because it stated that the plaintiff in the event of failure of payment of compensation to him would take legal steps against the railway administration and did not in so many words name the defendant against whom the suit was to be brought. Anybody receiving such notice could not but have under-Stood that this was a notice with respect to a suit which was contemplated to be brought against the owner of the railway, namely, the Dominion of India, who was the owner of the railway because anybody reading such a notice in the position of a manager of the railway concerned would have at once known that a suit would be filed not against him personally but against the Government. Their Lordships had relied upon certain other decisions of the Madras High Court in Governor General in Council v. Krishnaswamy A.I.R. 1946 Mad. 366, and Rambrahama v. Dominion of India A.I.R. 1959 Cal. 183. Mr. Nanavati also pointed out a decision in the State of Bombay v. Dr. N.T. Advani : (1963)IILLJ563Bom , at page 16. In that case it was contended that the notice given by the plaintiff was invalid since it was not addressed to the Government but was addressed to the Secretary to the Government. A reference to Section 80 of the Code of Civil Procedure shows that the notice was not required to be addressed to the Government. Section 80 required that the notice should contain the cause of action, the name, description, and the place of residence of the plaintiff and the relief which he claimed and that it must be left to the Secretary to the Government. It was, therefore, held that all the requirements were complied with on reading the notice in a rational and sensible manner. It is not the function of the Court to prick holes in the notice to invalidate it. It was also held that even though the notice was addressed to the Secretary to the Government it had reached proper quarter and, therefore, requirements of Section 80 had been complied with. While appreciating this contention, it must be kept in mind that under Section 79 in case of a suit against the Central Government the defendant has to be the Union of India. There is no dispute about the requirements of Section 79 being not complied with. Section 80 then merely provides that no suit shall be instituted against the Government until the expiration of two months next after notice in writing has been delivered to or left at the office... (b) in the case of a suit against the Central Government where it related to a railway, the General Manager of that railway...stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claimed and the plaint shall contain a statement that such notice has been so delivered or left. Thus, in the case of a suit relating to railway against the Union of India what Section 80 requires is that the notice must be delivered or left at the office of the General Manager of that railway with the necessary particulars specified therein and the plaint must contain a statement that such notice had been so delivered or left. Mr. Nanavati rightly contended that for delivering a notice to the General Manager or leaving it at his office, the General Manager would ordinarily be the addressee. What is, therefore, material for the purpose of Section 80 is that the notice must be given of the proposed suit against the Central Government so that the Central Government would have a warning and would be in a position to consider whether to settle the plaintiff's claim or to contest the same. Even Mr. Daru argued that the General Manager is a mere channel. What he contends, however is that every notice under Section 80 in a case of a suit relating to a railway must be addressed 'to the Union of India through the General Manager'. Section 80 no where specifies such a relinquishment. The argument advanced by Mr. Daru is solely based on the aforesaid passage of Gajendragadkar J. (as he than was) which I have already referred to and which no where lays down this proposition. No doubt a distinction has to be made when the claim is against the General Manager personally, and he is intended to be sued as such because Section 80 requires a notice not only in the case when the suit is instituted against the Government but also in the case of a public officer in respect of any act purporting to be done by that officer in his official capacity. Therefore, where a notice is given to the General Manager in his capacity as a public officer for a suit proposed to be filed against him, such a notice could not be treated as one given to the Union of India. On the other hand, if the General Manager is merely a channel for delivery of the statutory notice under Section 80 which is proposed to be given for the suit to be filed against the Central Government, I would have to construe the relevant averments in the notice itself. If the notice would leave no doubt in the mind of the General Manager that he was not meeting a personal claim but it was a notice of a claim against railway administration of an intended suit against the Union of India, such a notice could by no stretch of imagination be said to be a notice against the General Manager, but would always be a notice given to the Central Government, even though it might be delivered to the General Manager or left at his office as required by Section 80 by being addressed to him.
9. In the present case the plaintiff in the statutory notices at Exs. 31 and 32 to both the railways has no where advanced any personal claim against the General Manager. The plaintiff in this particular case has even further stated that the defendants in the suit will be the Union of India, owning both the Eastern and the Western Railways. After the two notices had been received by the General Manager he had passed on the same to the railway administration and replies have been given at Exs. 65 and 66 by the Chief Commercial Superintendent denying the responsibility of the railway administration for the plaintiff's claim on 30th September 1955. In the plaint also the plaintiff has not sued the General Manager at all but the defendants are the Union of India owning the Eastern Railway and the Union of India owning the Western Railway. In para 5 the plaintiff has further stated that the notices under Section 77 of the Indian Railways Act were, therefore, served upon the General Manager of both the defendants on 23-2-1955, and the notices of the suit were also served upon the defendants on 23-2-55. The plaintiff in the said notice had claimed the price of the suit consignment as the same was not delivered. Defendant No. 2, the Union of India owning Western Railway, had acknowledged the same by the letter, dated 5-3-55 intimating that a copy of the railway receipt was sent to defendant No. 2. In para 11 also it is mentioned that due notice as required under Sections 77 and 140 had been given to the defendants on 23-2-55 and that notices under Section 80 of the Code of a suit were also given and were delivered to the General Manager of the defendants on 27-2-55 and subsequently on the fresh cause of action having accrued on 3-5-55, the same had been delivered to both the General Managers on 16-5-55. In the written statement which was filed by both the defendants in para 11 it had been specifically stated that the notices under Sections 77 and 80 have been received by the railway, but they are not according to law and as the notice under Section 77 has not been given, the suit fails for want of proper notice. It is, therefore, in terms admitted that the notice under Section 80 of the Code had been received by the railway. That is why before the trial Court a point about want of statutory notice under Section 80 of the Code was not pressed. There is, therefore, no substance in the contention that the notice was only to the General Manager as if it was a notice of a personal claim. It is patently clear even from the admissions of the railway itself that the notice had been actually received by the railway and had been acted upon by the railway administration itself and the Union of India in the written statement also accepts in terms the fact that the notice under Section 80 had been received by the railway. There is, therefore, no room for the application of the decision of Gajendragadkar J. in the aforesaid application which has no bearing to the facts of the present case as the same was on its own facts. I, therefore, hold that both the notices under Sections 77 and 80 by the plaintiff in the present suits were legal and proper.
10. The only material question which now remains to be decided is as to the quantum of damages. The plaintiff had right from the time of taking delivery made a remark in the delivery book and on the back of the railway receipt that the consignment had arrived after about more than 5 1/2 months and that the quality had deteriorated as well as the market value had considerably fallen. He had also made a note of the shortage of 1 Md. 3 Bengali Seers. In the reply of the railway to the statutory notice under Section 80 at Exs. 65 and 66 the railway itself had stated that for the cost of shortage the cash order for Rs. 308/- was being issued in case of the consignment where the loss was of 88 lbs. while in the second consignment where the loss was of 22 lbs. the order of Rs. 78-12 was stated as being issued for the cost of shortage. The railway, however, disowned the liability only in respect of the other claim of damages on the ground that they were not liable for variations in the market price and that the physical quality of the tea had not deteriorated and that no assessment of damages had been given at the time of delivery. In the plaint in para 7A after referring to the aforesaid remarks in the delivery books in para 6, the plaintiff has stated that the market value prevailing on or about 15-12-1959 when the said consignment ought to have been delivered was Rs. 3/- and the same had fallen down to Rs. 1-8-0 per lb. on 2-5-55 and 3-5-55 when the said consignment had arrived and was delivered. Thus, there had been a fall of Rs. 1-8-0 per lb. in the market rate and the plaintiff had suffered damages to the extent of Rs. 1-8-0 per lb. The plaintiff further stated that 88 lbs. of tea had been pilfered in one consignment and 22 lbs. in the other. The plaintiff, therefore, stated that he had suffered damages to the extent of Rs 1-8-0 per lb. and on that basis claimed damages in para 7 due to foil in market rate due to abnormal delay in transit and for the aforesaid shortages of 88 lbs. and 22 lbs. In para 10 the entire claim of the plaintiff was mentioned as one of damages due to fall in the market rate as stated in para 7 above and for the value of the shortage and for interest. In the written statement in para 13 defendants denied that the market value of the consignment on 29-4-55 had considerably sunk down as alleged in para 6 of the plaint. In para 14 the defendants denied that the plaintiff was entitled to any amount in the fall of the market at the time when the consignment was delivered. In para 15 it was stated that it was denied that the market rate on 15-12-59 was Rs. 3/-, and that it had sunk down to Rs. 1-8-0 per lb. as alleged in para 7 as the price had not gone down to such an extent and the claim was false and highly exaggerated, and in paras 17 and 19 the shortage was denied but it was stated that the plaintiff was offered the cost of the shortage which had been refused. On these pleadings, two relevant issues Nos. 6 and 7 are as to what was the market rate on 29-4-55 and whether the plaintiff suffered loss of Rs. 1-8-0 per lb. or any damages owing to fall in the market and as to what damages he was entitled. Mr. Daru vehemently argued on these pleadings that the plaintiff's claim of damages must be confined to one on the ground of fall in the market price. The measure of damages, according to Mr. Daru, would, therefore, be the market rate prevailing at the date when the consignment would have normally reached. Mr. Daru further contended that, in any event, the plaintiff could not claim more than the market rate prevailing at the date of the delivery of the consignment on 3-5-55. Mr. Daru further contended that, in any case, so far as the claim for deterioration of the quality of the goods was concerned, that was totally a new case sought to be made out only at the hearing and Mr. Nanavati should not be allowed to raise that new plea in this appeal about the damage suffered due to deterioration of goods. In any event, Mr. Daru argued that if this is considered to be a relevant factor for assessing damages, in view of the vagueness of the pleadings and the issues the matter should be remanded so as to give opportunity to the defendant to lead necessary evidence, as on this point the defendants had not focussed their attention for want of proper issues and there had not been sufficient cross-examination of the plaintiff and his witnesses. Looking to the case of the plaintiff right from the time when the remark was made in the delivery book, it is obvious that the plaintiff had reserved the right of claiming damages not only due to fall in the market price but because the consignment had arrived after about 5 1/2 months and, therefore, the quality of the goods had deteriorated. Even the defendant in the reply in Exs. 66, 67 through the Chief Commercial Superintendent sought to deny this part of the plaintiff's claim of damages by stating in terms that the quality of the goods had not deteriorated. It is in this background that we must interpret the allegations in para 7 of the plaint where the plaintiff states that the suit consignment, which would have fetched price of Rs. 3/- per lb. on or about 15-12-54 when it would have been normally delivered, had fetched the price as low as Rs. 1-8-0 per lb.. Thus the price of the suit consignment having fallen by Rs. 1-8-0 per lb. the plaintiff had suffered damages claimed in the plaint in para 10 at the rate of Rs. 1-8-0 per lb. The first averment in para 7A related to the claim of the damages in respect of the suit consignment which had arrived late and which had to be sold at such a law price as Rs. 1-8-0. The claim in para 7(b) however is one of shortage in weight. It is this entire claim which was repudiated by the defendant. The relevant issues would therefore embrace not only the claim of loss due to fall in the market price but a claim of damages suffered by the plaintiff because of the neglect or misconduct of the railway administration in carrying its goods and the consequent delay. The claim is not merely ex-controtu but also on the ground that the bailee had by neglect or misconduct caused loss to the goods of the plaintiff so that when they were resold they fetched as low price as Rs. 1-8-0 per lb. The measure of damages in such a case is well settled. In Muthukrishna v. Madhavji Devchand & Co. A.I.R. 8 1953 Mad. 817 at page 820, the Division Bench consisting of Rajamannar C. J. and Venkatrama Ayer J. in terms approved the well known decision in Loder v. Kekule (1857) 3 CB (NS) 128, which is always considered as of considerable assistance. There the contract was for the delivery of Russian tallow which was to be shipped from the port of Danzig. The price was paid. The goods arrived on 12-1-1856 and were cleared by 25-1-1856. The plaintiff then inspected the goods and on 28-1-1856 he complained to the defendant that the quality was inferior. Then there was correspondence between the parties and ultimately the plaintiff had the goods resold on 12-3-1856. The action was to recover the difference between the price paid and the amount realised on resale on 12-3-1856. After holding that the action was in substance one to recover damages for defect in quality and not to recover the return of the price paid, the Court observed as follows:
Looking to the case in this aspect we think that the pre-payment cannot be taken into consideration in apportioning the damages, and that the true measure of damages would have been, if there had been nothing else in the cases, the difference between the value of the tallow of the quality contracted for, at the time of the delivery and the value of the tallow actually delivered. This, however, is on the assumption that the tallow delivered could be immediately resold in the market. But as in the present case it appears clearly from the correspondence that the defendant by his conduct delayed the resale, and as the jury have found, we think, correctly that the resale on 12th March was in a reasonable time, we are of opinion that the proper measure of damages is the difference between the value in the market of tallow of the quality contracted for on 25th January, and the amount made by the resale of the tallow actually delivered.
11. Their Lordships of the Madras High Court, therefore, held on the basis of the aforesaid decision that when there was no unreasonable delay in resale, the price realised at the resale might be taken as true value of the damaged goods. In Trojan & Co. v. Nagappa : 4SCR789 , their Lordships have held that the rule is well settled that damage due either for breach of contract or for tort or (sic) damages which, so far as money could compensate, would give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. In the absence of any special circumstances the measure of damages could not be the amount of loss ultimately sustained by the representee. It could only be the difference between the price which he paid and the price which he would have received if he had resold them in the market forthwith after the purchases, provided of-course that there was a fair market then. The question to be decided is such a case was what could the plaintiff have obtained if he had resold forthwith what he was induced to purchase by fraud of the defendants. In other words, the mode of dealing with damages in such a suit was to see what it would have cost him to get out of the situation. i. e. how much worse off was his estate owing to the bargain in which he entered into. Their Lordships followed the apposite observations of Lord Collins in Maconnel v. Wright (1903) 1 Ch. D. 546 to the effect that where the action was not for a breach of contract, and, therefore, no damages in respect of prospective gains which the person contracting was entitled by his contract to expect to come in, but it was an action of tort for a wrong done, the highest limit of his damages was the whole extent of loss. But in so far as he got an equivalent for his money, that loss was diminished, and in assessing damages prima facie the assets as represented are taken to be an equivalent and no more for the money which was paid. So far as the assets were an equivalent, he was not damaged, so far as they fell short of being an equivalent, in that proportion he was damaged. Their Lordships held at page 238 that though ordinarily the market rate on the earliest date when the real facts as to fraud became known might be taken as the real value of the shares, nevertheless if there was no market or there was no satisfactory evidence of a market rate for some time which might safely be taken as the real value, then if the representee sold the shares; although not bound to do so, and if the resale had taken place within a reasonable time and on reasonable terms and had not been unnecessarily delayed, then the price fetched at the resale might well be taken into consideration. Proceeding on this basis in such cases where by the default of the bailee the goods have not been delivered for such a long time by the carrier, there would be liability in damages for this negligence to make good the entire loss suffered by the plaintiff in respect of the suit consignments not merely by reason of the fall in the market price but also by reason of the fact that the said consignments fetched as low a value as Rs. 1-8-0 per lb. because of the goods losing their flavour. This is not the question of any special damages as urged by Mr. Daru but one of damages which are natural and direct consequences of the wrongful act. It is, therefore, clear that as the bailee had by neglect caused loss to the plaintiff by delaying the delivery, all the damage which occurred to the goods as a consequence of the delayed delivery must be taken into account as a relevant factor affecting damages and fall in market price. We have, therefore, to appreciate the evidence of the plaintiff as to the extent of the loss which he had actually suffered in respect of the suit consignments by reason of the delay made by the bailee on account of its neglect. As I have already stated it is undisputed that the goods would have normally arrived within about 15 to 20 days. The plaintiff has stated in para 13 that ordinarily the consignment from Jadadpur takes 15 to 20 days to come. The evidence is uncontroverted. The consignments were thereafter actually delivered on 3-5-55. The plaintiff has also stated the price prevailing between 25-11-54 and 31-12-54 from pages 21 to 34 of his day book, Ex. 42, which ranged from Rs. 2-14-0 to Rs. 3-4-0 per lb. The plaintiff's evidence that the rate at the time when the normal delivery was expected would be somewhere about Rs. 3/- has not been controverted. The plaintiff has further stated in para 28 that out of the two suit consignments of 50 and 55 boxes, 7 boxes were sold at the rate of Rs. 1-12-0 per lb, one at the rate of Rs. 2/-and the rest had been sold at the rate of Rs. 1-8-0 per 1b. The plaintiff has produced his account books in support of his evidence by relevant entries at Ex. 57 as to the rate at which he had sold the goods of the said consignment in various lots. The plaintiff also stated in para 29 that all these goods were of inferior flavour and on that ground he had received notice to take back the goods from Harshad & Co, of Jetpur as per Exs. 58 and 59. He had received complaints from other merchants as per Ex. 60 to 64 dated 17-5-55, 6-7-55, 18-8-55 and 30-5-55 about the inferior flavour of tea. The plaintiff had stated in para 31 that in view of this he had claimed difference in the price of the rate of Rs. 1-8-0 only and also for the aforesaid shortage of 88 lbs. in the consignment of 55 boxes and of 22 lbs. in the consignment of 50 boxes. The plaintiff has not been cross-examined at all as to the goods being of low flavour when they were delivered. Some rates had been taken out in the cross-examination from the plaintiff that the tea has been sold on 3-5-55 at Rs. 3/- per lb; on 4-5-55 at Rs. 2-13-3 on 5th at the same rate and in retail at the rate of Rs. 3-0-0 and Rs. 2-14-0. On 6th tea was sold at the rate of Rs. 3-0-0. On 9th it was sold at the rate of Rs. 2-14-0 and on 15th and 25th December 1954 at the rate of Rs. 2-12-0. In re-examination, however, the plaintiff stated that the rate as per the accounts stated by him in the examination-in-chief pertained to the sale of the articles relevant in the suit, that is, for goods of the suit consignment, while the rate which he had given in the cross-examination were for packed goods according to the quality and sample which were different than the present suit consignments. The plaintiff's next witness is one Dalpatram Parekh, Ex. 72, who is the Chief godownkeeper working in the Lipton Company, Central Godown, at Jetalsar for the last nine years. In para 5 he has in terms stated that the tea sale in Calcutta began in June when tea was received from gardens. In para 6 he had stated that the flavour would be affected in about five to six months, but if tea was packed in packets or tins the effect would be less. He also stated that the tea would be affected earlier in chests. The flavour would be gradually affected if kept intact in about five months, but if other things were kept with it in wagon during transit, the effect would be still earlier. In para 7 he further stated that if the quality became six months old in the godown, the sale would have to be made in loose quantities rather than in chests or packets and the price would be reduced than in chests or packets and the price would be reduced to 40 to 45%. He also stated that in the month of May the price of tea had been reduced by about 12 annas. In cross-examination he was only asked as to the. details of the sale rates of tea and he had stated that they were not available with him as he had not brought the books. This evidence, however, makes one thing clear that the quality of tea which-was packed in chests would be affected even earlier than five months and would be affected still earlier if other things had been kept in the same wagon in transit within six months. The deterioration would be so much as about 40 to 45%. This evidence has not been challenged at all in the cross-examination. The plaintiff has also examined various merchants who entered into contracts with the plaintiff in respect of the suit consignment, the goods of which were sold at the reduced rate of Rs. 1-8-0 or Rs. 1-12-0 per lb. and some of whom were not even prepared to buy at this rate. Witness Bhupatilal Manilal, Ex. 73, is running businees in the name Of Harshad & Co. and he had purchased five boxes of tea at the rate of Rs. 1-8-0. He stated that the quality was not as per the sample and was giving bad flavour and so he had sent a notice Ex. 59 on 19-8-55 to the plaintiff asking him to take back the goods. The witness says that the plaintiff took back the goods after the service of notice. The evidence of this witness corroborates the entry of the plaintiff in his account at Ex. 57 where this firm was debited with Rs. 732-10-0. A suggestion was made in the cross-examination but the witness denied that the plaintiff was his relation, only they were mutual customers of tea. It is true that the witness stated that he had not brought his account books. The witness, however, is corroborated by his notice Ex. 59 itself. Next witness Popat Hardas, Ex. 74, who had business in the name of Vrajlal Mohanlal had by the order dated 27-11-54 agreed to purchase three chests from the plaintiff at Rs. 3/- per lb. The witness, however, stated that on receipt of the consignment which was highly delayed he did not accept delivery as there was change in the flavour of the goods and the quality differed from that of the sample and as the market price was also falling. He then purchased the goods at the rate of Rs. 1-12-0 per lb. It is true that this witness had not brought account books but he had brought the bill which corroborated his evidence. The order book also was on record at Ex. 45, the relevant entry in the plaintiff's account of the purchase by Vrajlal Mohanlal at the rate of Rs. 1-12-0 for these goods at lot No. 36, in Ex. 57 Rs. 856-30 P. is also corroborated by this evidence. The next witness Jaga Kala, Ex. 75, had also agreed to purchase 3 chests of tea lot No. 34 at the rate of Rs. 3-0-6 as per the order at Ex. 76. He also refused to accept the delivery which was highly delayed because the market was falling and the flavour had changed. This witness also states that he was offered tea even at the rate of Rs. 1-12-0 but on account of bad flavour he did not purchase the same. It is true that this witness had not brought any books of account but as he had not purchased even at the rate Of Rs. 1-12-0 per lb., there would be no question of any account books at least from this witness. The witness is corroborated by his order at Ex. 76. Witness Devanmal Basumal, Ex. 77, had booked the order as per Ex. 44 and the original is at Ex. 78. He had also refused to purchase the goods even at the rate of Rs. 1-12-0 per lb. on account of bad flavour and because the goods had deteriorated in quality. Witness Thakarshi Raghav, Ex. 79, also produced his order, Ex. 80 dated 4-6-55. He also found that the goods received had bad flavour and he had written a letter complaining about the same at Ex. 61 to the plaintiff. He had purchased those goods at the price of Rs. 1-8-0 per lb. as per bill Ex. 81 and as seen from accounts in Ex. 57. According to this witness even thereafter there was some talk for giving further rebate. The evidence of these independent witnesses who are merchants completely corroborate the evidence of the plaintiff that the goods of the suit consignment which he had contracted to sell to certain merchants could not be sold because they were delayed and has deteriorated in their flavour. The plaintiff offered to sell the goods even at the rate of Rs. 1-12-0 and Rs. 1-8-0. In some cases the merchants refused to buy even at this reduced rate and in other cases the plaintiff could get rate of Rs. 1-8-0 in the suit consignment. The plaintiff had examined two other witnesses Parshottam Jeram, Ex. 91, and Madhavji Jivram, Ex. 95, two hotelkeepers who had produced their orders in May 1955 to show that they had purchased tea even at Rs. 3-8-0. These witnesses would not be helpful except to show that the suit consignment had to be sold at very low rate due to deterioration of the quality of the goods. On this evidence the plaintiff, therefore, establishes that the quality of the goods had deteriorated and he was forced to sell almost all the goods at Rs. 1-8-0 except for some of them rate which he had mentioned in his evidence. The only criticism which Mr. Daru makes is that the witnesses did not produce their accounts. That however would not enable me to draw an adverse inference specially, when they were independent merchants who were corroborated either by the order or by their complaints and also by the entries in the account books of the plaintiff. The plaintiff's accounts showed that he had sold the entire consignment in the various lots at the prices mentioned in Ex. 57 which, almost came to Rs. 1-8-0 per lb. has not at all been challenged. In this connection Mr. Daru further argued that the plaintiff ought to have insisted on an open delivery or he should have made a panchnama and should have given an opportunity to the railway administration to remain present at the time of the resale. The plaintiff had drawn the attention of the railway administration when he took delivery by making a remark in the delivery book as well as on the reverse of the railway receipts. Inspite of the plaintiff's notice, the railway administration never cared to accept this liability or to go into this question and came out with a bold denial that there was no deterioration in the quality of the goods and that they were not liable for any damages and therefore they could not make any grievance. Mr. Daru once again repeated his request that the matter ought to be remanded. I cannot entertain the request of Mr. Daru in view of the fact that the railway administration was fully aware of the plaintiff's case right from the very beginning of damages having been suffered by him by deterioration of quality, shortage and by fall in market price in respect of the suit consignments. Most of the witnesses of the plaintiff had given categorical evidence in respect of the goods having been affected on account of change in the flavour. The defendant did not cross-examine any of the plaintiff's witnesses or the plaintiff in this connection. It would not, therefore, be in the interest of justice to give defendant a further opportunity to fill up the lacuna by ordering a remand. The defendants had by their neglect caused loss to the plaintiff and still if they disowned their liability, they ought to have controverted the material evidence which had been led by the plaintiff in this connection. Mr. Dam also strongly relied upon the judgment of the trial Court. The learned Judge has, however, merely quoted various instances given by the plaintiff himself of the rates of tea, ignoring the most material part of the plaintiff's evidence where he explained that the rates which he had given in examination in chief were in respect of the goods tea as per the samples given. The same is the version of the last two witnesses who were hotel owners who never referred to those good which had lost their flavour. What We are concerned with was the price of the suit consignment which had been delayed for so many months and as a result of which the goods had become of such low flavour that the merchants were unwilling or hesitating to purchased the goods even at this low rate of Rs. 1-8-0 per lb. The trial Judge also made much of the fact that there were various qualities in the suit consignment ignoring the material fact that in the suit invoices all these goods were valued at Rs. 3-8-0 per lb. The whole object of the lower Court, therefore, proceeds on an entirely erroneously basis by failing to make this material distinction between sale in the suit goods and the other goods with normal flavour in which there would be the normal market. In the result, I accept the evidence of the plaintiff and his witnesses that the market price of the said goods at the time when their delivery could have been reasonably accepted was Rs. 3/-, while the price which they actually fetched was only Rs. 1-8-0 per lb. The plaintiff has also established that there was shortage to the tune of 22 lbs. in the consignment of 50 boxes and to the tune of 88 lbs. in the consignment of 55 boxes. This evidence of the plaintiff has remained unchallenged and in fact the defendant offered refund for this shortage. The plaintiff would therefore be entitled to the damages in respect of this shortage at the rate of Rs. 3-0-0 only per 1b.
On the aforesaid basis so far as the first suit No. 24/55 is concerned of the consignment of 55 boxes, the total amount of loss suffered by the plaintiff would be Rs. 7318/-at the rate of Rs. 1-8-0 per lb. giving credit for those goods which had been sold for slightly higher price as deposed to by the plaintiff in para 28 of his evidence and the amount for shortage of 88 lbs. would come to Rs. 264/-. The total amount due to the plaintiff in respect of this consignment would therefore come to Rs. 7582/-. In respect of the other consignment of 50 boxes in civil suit No. 25/55, the damages would come to Rs. 7092/- and adding Rs. 66/-for the shortage of 22 lbs. the total amount of damages suffered by the plaintiff would come to Rs. 7358/-.
12. In the result, I reverse the decree of the trial Court and pass a decree in favour of the plaintiff in civil suit No. 24/55 for a total amount of Rs. 7582/-; and in civil suit No. 25/55 for a total amount of Rs. 7158. The decretal amount in both the cases shall carry running interest at 4% from the date of the suit till realisation. The defendants do pay costs of the plaintiff in both the suits and in both these appeals.