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Shah Nemji Chitarmal Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 90/1970
Judge
Reported in1982WLN(UC)441
AppellantShah Nemji Chitarmal
RespondentUnion of India (Uoi) and anr.
DispositionAppeal dismissed
Cases ReferredIn Union of India v. Chaturi
Excerpt:
railways act - section 77 and civil procedure code--section 80 notice given on behalf of 'skj proprietor sncj--suit filed-by 'sncj registered firm through partner & proprietor skj--notice not given on behalf firm and identity of person not clear--held, notice was defective & suit was not maintainable.;the notice was given on behalf of 'shanti kumar proprietor of shah nemji chitarmal jain, baran' while the suit was filed by 'shah nemji chitarmal jain, a registered firm though partner and proprietor shanti kumar son of chitarmal, caste, jain baran.;reading both the notices and the plaint together, it cannot be held that there was identity of the person who issued the notice and the person who filed the suit and that the person giving the notice and the person filing the suit was the.....dwarka prasad gupta, j.1. this second appeal arises out of a suit for recovery of damages for short delivery and damages to goods in transit over railway.2. the facts which have given rise to this appeal are that m/s mohanlal hargovind sent 20 crates of bidies on february 8, 1962 from tumsar road railway station for delivery to m/s chandulal jagjiwandas at baran railway station. the railway receipt in respect of the aforesaid consignment of bidies in which chandulal jagjiwandas was shown as the consignee was endorsed by the consignee in the name of shah nemji chitarmal. when m/s shah nemji chitarmal took delivery of the goods at baran railway station, one crate of bidies was found in damaged condition. the plaintiff, m/s shah nemji chitarmal, took delivery of 19 crates of bidies and the.....
Judgment:

Dwarka Prasad Gupta, J.

1. This second appeal arises out of a suit for recovery of damages for short delivery and damages to goods in transit over railway.

2. The facts which have given rise to this appeal are that M/s Mohanlal Hargovind sent 20 crates of Bidies on February 8, 1962 from Tumsar Road Railway Station for delivery to M/s Chandulal Jagjiwandas at Baran Railway station. The Railway receipt in respect of the aforesaid consignment of Bidies in which Chandulal Jagjiwandas was shown as the consignee was endorsed by the consignee in the name of Shah Nemji Chitarmal. When M/s Shah Nemji Chitarmal took delivery of the goods at Baran Railway station, one crate of Bidies was found in damaged condition. The plaintiff, M/s Shah Nemji Chitarmal, took delivery of 19 crates of Bidies and the loss was assessed by the Station Master, Baran at the time of delivery.

3. After serving the requisite notices under Section 77 of the Railway Act and Section 80 C.P.C., the plaintiff filed a suit for the recovery of a sum of Rs. 1627.70 towards loss and damages etc. The trial court dismissed the plaintiff's suit and the first appeal filed by him met the same fact. Hence this second appeal.

4. The first ground argued by the learned Counsel for the appellant was that the first appellate court fell into error in holding that the notice issued by the plaintiff under Section 80 C.P.C. was invalid. The notice under Section 80 C.P.C. was admittedly given by Shanti Kumar as proprietor of Shah Nemji Chitarmal. The suit has filed in the name of firm Shah Nemji Chitarmal through Shanti Kumar. The argument of the learned Counsel was that the notice was given by the same person on whose behalf the suit was filed, namely, firm Shah Nemji Chitarmal The contention of the learned Counsel for the respondents, on the other hand, was that notice was given by Shanti Kumar in his personal capacity and the specification that he was the proprietor of Shah Nemji Chitarmal was merely a description, while the suit was filed on behalf of Shah Namji Chitarmal a partnership firm and, therefore, the person who filed the suit was different from the person who gave the notice. The two courts below relying upon the decision of their Lordships of the Supreme Court in S.N. Dutt v. Union of India : [1962]1SCR560 held that the notice under Section 80 C.P.C. was defective and the suit was dismissed. In the aforesaid case the notice under Section 80 C.P.C. was given by the counsel under instructions from 'M/s S.N. Dutt & Co. while in the plaint the plaintiff was described as 'Surendra Nath Dutt, sole proprietor of the business carried on in the name and style of S. N. Dim & Co.' Their Lordships of the Supreme Court observed that it was obvious that notice was given by a firm which created a prima facie impression that the notice was given on behalf of a partnership firm, while the suit was filed on behalf of an individual S.N. Dutt, who claimed to be sole proprietor or M/s S.N. Dutt & Co. It was held in the aforesaid case that where an individual carries on business in some name and style, the notice has to be given by the individual in his own name, as a suit can be filed by the individual only. Their Lordships held that comparing the notice given in the suit and the plaint and remembering that M/s S.N. Dutt was rot a partnership firm but merely a name and style in which 'in individual carried on his trade, the conclusion was inescapable that the person giving the notice was not the same as the person suing.

5. The principle as regards notice under Section 80 C.P.C. is well settled Section 80 lays down that no suit shall be instituted against the Central Government until expiration of two months after notice in writing has been delivered to, or left at the office of the Secretary to that Government stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint should contain a statement that such a notice has been so delivered. The notice was to be in confirmity with the aferesaid provisions contained in Section 80 C.P.C. and if it were not so, the suit would fail on the ground of non-compliance with these provisions and the sui(sic)s liable to be dismissed as not maintainable, in view of the bar of Section 80 of the Code of Civil Procedure.

6. As far back as in the year 1927, their Lordships of the Privy Council in Bhagchand v. Secy. of State AIR 1927 PC 176 laid down that Section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of action and all kinds of relief. In Vallayan Chettia(sic)i v. Govt. of the Province of Madras AIR 1947 PC 197, where a suit was filed by two plaintiffs but the notice was given by only one of them, it was observed by their Lordships of the Privy Council that

Section 80 according to its plain meaning, requires that there should be identity of the persons who issues the notice with the person who brings the audit

In Government of the Province of Bombay v. Pastonji Ardeshir AIR 1949 PC 143 the notice was given by two trustees and the suit was brought by three trustees, out of which two were newly appointed after the notice was given and one of the existing trustees had died when the suit was filed. Thus, only one trustee amongst the plaintiffs had given notice while two others had not. Their Lordships of the Privy Council again held that the provisions of Section 80 of the Code of Civil Procedure was imperative and must be strictly complied with.

7. Thereafter in Ghian Singh Sobha Singh v. U. O. I. 1958 SC 274, their Lordships of the Supreme Court explained the legal position by observing that what the Privy Council had laid down in k(sic)hag Chanda's Case (Supra) did not mean that the terms of the notice should be scrutinized in a sedentic manner or in the manner completely divorced from common sense. Their Lordships placed reliance upon the observations of Pollock C. 8 in Jones v. Nicholls (1844) 153 English Reports 149 at p. 150 to the effect that 'We must import a little common sense into notices of this kind.'

8. Beaumount, Chief Justice of the Bombay High Court also made-similar observations in Chand(sic)slal Vadilal v. Govt. of Bombay AIR 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.'

9. It may be observed that when dealing with the question of cause of action and relief claimed in the suit, it would be necessary to use common sense to find out whether Section 80 has been complied with or not, but when the question is about the identity of the name of the plaintiff with that of the persons giving the notice under Section 80 C.P.C., there is little scope for using common sense for either the name of the person suing is there in the notice or it is not; and no amount of common sense can bring the name of the person giving the notice in the name of the plaintiff, it is-not there.

10. In Raghunath Das v. Union of India : [1969]1SCR450 the notice under Section 80 CPC. purported to be given on behalf of 'M/s Raghunath Das Mulk Raj' but it was signed by Raghunathdas as the proprietor of the aforesaid concern. In the notice there was a clear indication, if the notice was read as a whole, that the plaintiff was the sole proprietor of the concern. The suit was brought by Raghunathdas as the sole proprietor of firm M/s Raghunathdas Mulk Raj. It was held in that case the that notice was valid and that the authorities who received the notice were expected to import some common sense in it. Their Lordships of the Supreme Court observed as under in the above mentioned case:

The object of the notice contemplated by that Section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that Section in our opinion is that public money and time should not be wasted on unnecessary litigation & the Government and the public officers should be gixen a reasonable opportunity to examine the claim against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice, The provisions in Section 80, Civil Procedure Code are intended to be used as body traps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else? The question has to be decided by reading the notice as a whole in a reasonable manner.

In the present case, as already mentioned above, the notice was given on behalf of 'Santi Kumar Jain, Proprietor of Shah Nemji Chitarmal Jain Baran' while the suit was filed by 'Shah Nemji Chtitrmal Jain, a registered firm through partner and proprietor Shanti Kumar son of Chtitrmal, caste Jain, Baran.' In para 1 of the plaint it has been mentioned that Shah Nemji Chitarmal Jain was a registered firm. In the written statement the defendant Railway Administration had taken the objection that the notice under Section 80 CPC was given by Shanti Kumar Jain proprietor of M/s Shah Nemji Chitarmal Jain while the suit has been filed by the firm Shah Nemji Chitarmal Jain, through partner and proprietor Shanti Kumar and hence the notice was invalid and the suit was liable to be dismissed.

11. How so ever, liberally we may read the notice given in the present case and may apply the utmost common sense, yet when the notice is compared with the contents of the plaint, it is obvious that the identity of the person on whose behalf the notice was given does not agree with the person who brought the suit, as in the case of S.N. Dutt, a reading of the notice in the present case gives an impression that it was given on behalf of an individual. Shanti Kumar Jain, who described himself as the 'proprietor of M/s Shah Nemji Chitarmal Jain', which prima facie creates impression that M/s Shah Nemji Chitarmal was merely the name and style under which Shanti Kumar Jain carried on his individual business, because he has been described as the 'proprietor' of the said firm. But the plaint discloses an entirely different story and not that the suit has been filed on behalf of firm Shah Nemji Chitarmal Jain, but it has also been clearly stated in para 1 of the plaint that the plaintiff firm was registered partnership concern and Shanti Kumar has been described as 'a partner and proprietor.' Moreover, the plaintiff produced on the record of the suit a certified copy of a document from the office of the Registrar of Documents, Rajasthan, Jaipur, which has been marked as Annexure 2 and which clearly proves that Shah Nemji Chitarmal Jain, Baran was a firm registered under the provisions of the Indian Partnership Act, 1932. Thus, there could be no doubt on a consideration of the entire circumstances, of the case, that the plaintiff in the suit was a registered partnership firm, of which Shanti Kumar was merely a partner. The title of the plaint clearly shows that the suit was brought by the firm and not by Shanti Kumar personally. It is apparent from a reading of the plaint that firm Shah Nemji Chitarmal Jain was the plaintiff, who filed the suit through 'partner' and 'Malik' Shanti Kumar Jain. In Mewar Industrial and Commercial Syndicate, Udaipur v. Firm Raj Bahadur Seth Moolchand, Suganchand Udaipur 1956 RLW 188 it was held that the word 'Malik' is sometimes used in place of the word 'partner' as equivalent thereto although it is not an exact legal connection, because a partner is also one of the 'Malik' of the firm, though not the sole 'Malik'. In the title of the suit Shanti Kumar Jain has not been described as the sole 'Malik' and the word 'Malik' has been used along with the word 'partner', which goes to show that it was a suit by the firm through one of its partners. The description of the plaintiff and the contents of para No. 1 of the plaint create an impression that the suit has been filed on behalf of the required partnership firm M/s Shah Nemji Chitarmal. Therefore, reading both the notice and the plaint together, it cannot be held that there was identity of the person who issued the notice and the person who filed the suit and that the person giving the notice and the suit was the same I, therefore, agree with the lower appellate court that the notice under Section 80 C.P.C. was not given on behalf of the person who filed the suit namely the partnership firm M/s Shah Nemji Chitarmal Jain and as such the notice was defective and consequently the suit was not maintainable in the absence of a proper notice under Section 80 C.P.C.

12. The other contention which was advanced by the learned Counsel for the appellant was that the first appellate court erred in holding that the appellant was not entitled to bring the suit because he was a mere endorsee. Learned Counsel contended that the plaintiff was also the owner of the goods and was not in the position of a mere endorsee. According to him, the endorsement of the railway receipt was made in favour of the plaintiffs, because they had placed an order for the goods with M/s Chandulal Jagjiwandas through M/s Mohanlal Hargovind. In para 2 of the plaint, it was stated that M/s Mohanlal Hargovind handed over 20 crates of Bidies to the defendant, Western Railway, at Tumsar Road Railway Station for delivery at Baran and the railway receipt was made in the name of M/S Chandulal Jagjiwandas and Co., Bhawani Mandi and the latter firm endorsed the railway receipt in favour of the plaintiff. In his statement as P. W. 2, Shanti Kumar explained that M/s Mohanlal Hargovind were the manufacturers of Bidies and they sent 20 crates of Bidies to the plaintiff. M/s Mohanlal Hargovind sold their goods at Bhawani Mandi through their agent M/S Chandulal Jagjiwandas, The railway receipt was transferred for value by M/S Mohanlal Hargovind in favour of Chandulal Jagjiwandas who in turn transferred the same to the plaintiff. The first appellate court held that the plaintiff was merely an endorsee of the railway receipt and as such he was not entitled to maintain the suit and it was held that they were not the owners of the goods covered by the railway receipt. According to the first appellate court, the evidence led by the plaintiff regarding the ownership of the goods was beyond the pleadings and could not be taken into consideration. In Morvi Mercantile Bank Ltd. v. Union of India AIR 1965 SC 1951 their Lordships of the Supreme Court held that endorsement of railway receipt for consideration would entitle the endorsee to file a suit for damages against the carrier.

13. In the Union of India v. The West Punjab Factories Ltd. : [1965]57ITR331(SC) it was held that the mere fact that the railway receipt was a document of title to the goods covered by it did not necessarily make the consignee the owner of the goods, where the consignor and the donsignee were different. The question whether the title to the goods passed to the consignee has to be decided on the basis of evidence. Their Lordships observed that a consignor cansue if there was damage to the consignee, because the contract of carnage was between the consignor and the railway administration. But where the property in the goods carried had passed from the consignor to the consignee, the latter would be able to file a suit for recovery of damages from the railway. Thus, the question whether the title had passed from the consignor to the consignee or the endorsee of the railway receipt depends upon the facts of each case.

14. In the present case, the statement of P.W 2 Shanti Kumar, which has not been rebutted, is quite clear and unambiguous. He has clearly stated that the goods in dispute were covered by the railway receipt in question and that he had placed an order for 20 crates of Bidies with M/s Mohanlal Hargovind Das who sold their goods through their agent Chandulal Jagjiwan Das. He has also explained that the consignee shown in the railway receipt was Chandulal Jagjiwandas, because they were the local agents, through whom the goods were sold by the manufacturers at Bhawanimandi. He has further stated that the railway receipt was endorsed for value by Mohanlal Hargovind-das in favour of Chandulal Jagjiwandas and the latter had endorsed the railway receipt in favour of the plaintiff. Thus, there is no doubt that the plaintiff has proved that the property in the goods was transferred to him for value But the plaintiff's statement has not been relied upon by the first appellate court merely on the ground that it was beyond pleadings. No doubt the plaintiff has not clearly stated in the plaint that the plaintiff was the owner of the goods yet it was understood by the defendant as such and it was pleaded in para No. 2 of the written-statement that the plaintiff should be put to strict proof that 'he is the endorsed consignee of the original railway receipt for valuable consideration. As it was proved by the plaintiff without any rebuttal that he was an endorsee of the railway receipt for consideration there can be no doubt that he could maintain the suit.

15. Learned Counsel for the respondents relied in support of his argument up in the decision of this court in Jatanlal v. Union of India 1971 RLW 424, in which it was held that in case the consignee endorsed the railway receipt in the name of the commission agent, the latter was not entitled to file a suit, as the title to the goods did not pass to the commission agents merely by endorsement of the railway receipt in his favour. In that case, the plaintiff had clearly stated in his statement that he did not purchase the goods at all and the same had been sent to be sold in their 'adat'. It was, therefore, clear from the plaintiff's own statement in that case that he was neither the consignor nor the consignee, nor he acquired ownership or title to the goods, but he was merely an endorsee of the railway receipt. The statement of law in this respect is contained in the decision of the Supreme Court in Union of India v. West Punjab Factories Ltd. 1971 RLW 424 where Wanchoo, J. speaking for the Court observed as under:

Ordinarily, it is the consignor who can sue if there is damage to the Consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has parsed from the consignor to some one else, that the other person may be able to sue.... It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and the consignee are different that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of other person...as we have said already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case.

(emphasis added)

16. Thus, it is amply clear that although ordinarily it is the consignor who can sue for damages in transit to goods entrusted to railway because the contract of carriage is entered into between him and the carrier, but if the persons suing is neither the nor consignor the owner of the goods but is a consignee, he would have to show that he had interest in the goods, by virtue of purchase or otherwise; a right to receive the goods from the railway must be coupled, with the interest in the goods so as to enable the plaintiff to claim compensation. If property in the goods is passed to the consignee or the endorsee during the tansit of the goods, then the consignee or the endorsee can file a suit, in order to establish a claim for compensation for loss or damages to the goods in transit. The same view was also taken by Delhi High Court in M/s Bhai Mehar Singh Kishan Singh Fruit Merchants v. Union of India and Ors. : AIR1979Delhi158 , in which it was held that a consignee can file a suit for compensation when it was shown that he was consignee for consideration or has an interest in the goods despatched. In this view of the legal position, I am of the view that the suit could be maintained by the plaintiffs, who were the transferees of the railway receipt for value and they cannot be non-suited merely on the ground that the plaintiffs were endorsees of the railway receipt. The finding of the first appellate court on this question is, therefore, set aside.

17. It was lastly urged by the learned Counsel for the appellant that the lower courts fell into error in holding that the plaintiff was unable to prove the quantum of damages. According to the learned Counsel for the appellant document Ex.3 produced by the plaintiff was an admission on behalf of the defendants by the Station Master, Baran to the effect that out of 20 crates of Bidies, one crate was not delivered at all as it was not received at Baran Railway Station, while 19 crates of Bidies Wire delivered to the plaintiff, in respect of which assessment of damages was made by the railway authorities as under:

1. One crate (Unfit for

consumption or use) ..........100%

2. 10 crates 20% of the bijak cost.

3. 4 crates 30% of the bijak cost

4. 4 crates 37 1/2% of the bijak cost.

18. It was also urged that the crate of Bidies was valued at Rs. 20(sic)/-according to bijak value and as such the amount of damages should have been calculated on the basis of the assessment of damages made by the railway authorities themselves. The plaintiff has also produced and proved Bijak Ex.1, which was given by Chandumal Jagjiwandas & Co. to the plaintiff in which the cost of 20 crates of Bidies has been shown as 4020/- @ Rs. 201/ per crate. On the other hand, learned Counsel for the defendant-respondent argued that the plaintiff should have proved actual damages for the loss suffered by him and in the absence of proof thereof, no amount of damages can be awarded in favour of the plaintiff It was urged by the learned Counsel for the respondents that letter Ex.3 was written to the plaintiff by the Station Master specifically stating that it was 'without prejudice' and that the same should not be considered as an admission of the loss or damages suffered by the plaintiff. According to the learned Counsel for the respondents, the plaintiff should have proved, by producing his account-books, the amount for which the crates of Bidies were sold, so that the actual loss suffered by the plaintiff could be calculated, because the loss would be represented by the difference between the purchase price and the actual sale price received by the plaintiff for the damaged Bidi crates.

19. The quantum of damages in such cases has to be determined in accordance with the provisions of Section 73 of the Contract Act, which runs as under:

73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him there by, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

20. In M/S Murlidhar Chiranjilal v. Harish Chandra Dwarka Das and Anr. : [1962]1SCR653 , their Lordships of the Supreme Court summarised the principles governing award of damage for breach of contract for supply of goods as under:

The two principles on which damages in such cases are calculated are well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what hi contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed, but this principle is qualified by a second, which imposes on a plaintiff the duly of taking all reasonable steps to mitigate the less consequent on the breach and debars him from claiming any part of the damages which is due to his neglect to take such step; (British Westinghouse Electric and Manufacturing Company Limited v. Underground Electrify Rly. Co. of London (1912) AC 673 at P. 689. These two principles also follow the law as laid down in Section 73 read with the explanation there-of.... But the respondent did not make any attempt to prove the rate for similar canv(sic)s prevelent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course of things.

21. In Chao v. British Traders and Shippers Ltd. (1954) (sic)1 All. ER. 797 at 799 it was held as under:

It is true hat the defendants knew that the plaintiffs were merchants and therefore had bought fur re-sale, but every one who sells to a merchant knows that he has bought for resale and it does not, as I understand it, make any difference to the credinary measure of damages. Where there is a market, what is contemplated is that the merchant buys for re-sale, but, if the goods are not delivered to him, he will go out into the maket and buy similar goods and honour his contract in that way If the market has fallen (sic)e has not suffered any damage, if the market has risen the measure of damages is the difference in the market price.

22. Thus, it is absolutely clear that even in the case of surcharge of goods for re-sale measures of damages has to be calculated on the basis of the loss which naturally arose in the usual course of business from such breach.

23. The learned Counsel for the appellant relied upon the decision of their Lordships of the Supreme Court in Union of India and Ors. v. Sugauli Sugar Works (P) Ltd (16), in which the contract price was held as the correct basis for award of compensation. In the aforesaid case, their Lordships held that the intention in awarding damages for breach of contract is that the party complaining should be compensated by placing him in tae same position as he would have been if the contract would have been performed. The market value is taken as the measure of damages in the case of non-delivery because it is proper to pay the true value of the goods to the purchaser at the relevant time. The principle is that as far as possible the person whose goods were lest in carriage should be placed, as far as money can do i(sic), in the same situation as if the contract has been performed. Thus, the plaintiff has to be compensated for the loss which naturally flows from the breach of contract. In that case, the finding of the High Court was, as observed by their Lordships of the Supreme Court, that the market price would also be the same as the contract price and in such a situation the contract price was adorned as the basis for compensation.

24. In New Swadeshi Sugar Mills Ltd v. Union of India : AIR1981All268 it was held by a learned Judge of the Allahabad High Court that the test for determination of the amount of damage is the prevailing market price of the commodity at the place of destination, in a case of loss of goods entrusted to the railway for carriage on account of the negligence of its employees. In that case there was no evidence of the prevailing market price at the destination in respect of goods lost in transit as it was held, having regard to the liability of the railway administration as a bailee, of making goods available at the destination.

25. In Union of India v. Chaturi lal 1970 RLW 497 in similar circumstances, a learned Judge of this Court held that mere production of damage memo prepared without prejudice at the time of the delivery of goods cannot form the basis for awarding damages, because the plaintiff ought to prove actual loss or damages caused to him. In that case also goods were delivered to the consignee in a damaged condition and after considerable delay and the damages were claimed only on the basis of assessment memo prepared at the time of giving open delivery, in which the damage was assessed at a certain percentage without prejudice. It was held that no decree could be passed awarding damages to the plaintiff merely on the basis of assessment memo, prepared without prejudice, on percentage basis at the time of the open delivery and there must be enough evidence led by the plaintiff to prove the actual loss caused to him.

26. In the present case also the plaintiff has not proved the prevailing rate of Bidies at Baran at the time the goods were delivered to him in a damaged condition nor the plaintiff has proved the actual sale price for which the damaged goods were sold by him. According to the settled principles of law, the plaintiff was entitled to claim damages in respect of goods, which were damaged in transit, as the amount representing the difference between the purchase price given in the bijak and the price for which the goods were actually sold by the plaintiff. For ought one know even after the goods were particularly damaged during transit, they might have been sold by the plaintiff for the same price for which they were purchased by him, although damage was assessed at 20% or 30% at the time open delivery was given. Thus, so far as the 19 crates of Bidies, which were duly delivered by the railway administration to the plaintiff are concerned the plaintiff duly acknowledged the receipt thereof, though in a damaged condition. As the plaintiff failed to produce his account books and to prove the price for which such damaged goods were disposed of by him, no amount of damages can be awarded to the plaintiff, of course, in respect of one crate of Bidies which were not delivered at all, the purchase price can be taken to be the market price at the relevant time as held by their Lordships of the Supreme Court in Suga-uli Sugar Works' case (Supra) and the damages can be awarded to the plaintiff at the rate of Rs. 201/ for one crate However, in view of the finding that there was no proper notice under Section 80 C.P.C. the suit of the plaintiff was not maintainable and the same was liable to be dismissed on that ground alone.

27. In the result, the appeal fails and the judgment passed by the Additional District Judge, Baran is confirmed and the dismissal of the plaintiff's suit by the two courts below is upheld. However, in the facts and circumstances of the case, the parties are left to bear their own costs of this appeal.


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