K.S. Venkataraman, J.
1. This revision petition under Section 115 of the Code of Civil Procedure arises out of a suit O.S. No. 290 of 1963 filed in the Court of the District Munsif of Madurai Taluk for recovery of a sum of Rs. 755.67 P. 230 bags of sugar were consigned to the plaintiff from Bijnar in northern India to the railway station at Dindigul where the plaintiff resides. On arrival at Dindigul 46 bags were damaged and there was also some shortage. The damage was assessed by the railway authorities at 10 per cent in the case of 34 bags and at 5 per cent in the case of 12 bags. The plaintiff filed the suit for damages representing (1) shortage and (2) damage. The defence of the railway was that they were not negligent. The learned District Munsif who tried the suit however, found that the railway had been negligent, but he gave a decree only respect of the shortage. He declined to pass a decree in respect of the damages on the ground that the plaintiff had not let in any evidence to prove that he actually sustained any loss in respect of the damaged bags. The plaintiff preferred an appeal which was heard by the learned Subordinate Judge. He allowed the appeal to a small extent in respect of shortage by adding the proportionate freight which the plaintiff had paid. But he confirmed the decree in respect of the damage on the same ground as the learned District Munsif had done.
2. In this revision petition, Sri K.S. Naidu, the learned Counsel for the petitioner-plaintiff agrees that the plaintiff has not let in any evidence about the price at which he was able to sell the damaged sugar. In particular he has not proved that the price which he was able to secure was less than the cost price of the quantity of sugar involved. But the learned Counsel contends that in spite of this lack of evidence on the plaintiff's part, the plaintiff is entitled as a matter of right to recover from the railway damage on the basis of their own estimate, namely, 10 per cent of the cost price of 34 bags and 5 per cent of the cost price of 12 bags.
3. I have very little doubt that the contention is untenable and that the Courts below are right in their view that the plaintiff can claim damage only if he has proved that he sustained any actual damage. For instance let us assume for the sake of argument that in this case itself the petitioner has been able to realise by the sale of the damaged sugar more than what it cost him. I do not see any reason in principle or justice as to why he should be permitted to recover anything from the railway. If he had consumed the sugar himself it might have been a different matter, but there is no such suggestion.
4. The learned Counsel has cited some passages from Kameswara Rao's Law of Damages and Compensation, fourth edition, Volume II, note 138 at page 1038 and Lahiri's Law of Carriers, page 129 and also a decision of the Madhya Pradesh High Court in Union of India v. Haji Latif Abdulla : AIR1961MP190 . There is nothing in the passages from the text books covering the point under discussion, and the decision cited indeed contains some observations which coincide with my view. The passage in Kameswara Rao's book is this:
Where goods are delivered by a carrier in a damaged condition for which the carrier is not protected, the measure of damages is the difference between the original value and the value when damaged, and Where the goods are completely useless, the consignee may reject the goods, and claim as for a complete loss.
5. Some decision is cited which is not traceable. The passage in Lahiri's Law of Carriers also is the same. It is implicit in the above passage that the plaintiff has not been able to recover anything more than the value when damages. Turning to the decision cited, namely, Union of India v. Haji Latif Abdulla : AIR1961MP190 it was a case where some cloth was delivered by the railway in a damaged condition. The plaintiff appropriated the cloth to his own use. Damages were awarded to him by the Small Cause Court on the basis of the assessment of the damage by the railways. The railway filed the revision petition. A plea of limitation was raised and the revision petition was allowed on the point of limitation. But the learned Judge, Tare, J., endorsed the basis of the assessment of damage by the trial Court with the following observation:
The hessian cloth and the sutli were appropriated by the plaintiff to its own use. Therefore, the plaintiff could claim damages on the basis of the percentage of the damage to the goods. Had the plaintiff sold the cloth and sutli to some third person, in that case alone, the plaintiff Would be required to prove as to what price Was fetched. But the plaintiff in the present case, not having sold the cloth was not required to prove what price was fetched. Therefore, the basis adopted by the learned Small Cause Judge cannot be said to be erroneous, or illegal.
6. In this case admittedly the sugar was sold and hence even according to the observations in the above decision it was incumbent on the plaintiff to prove that he actually sustained some loss.
7. In the result, there is no reason for interference, and the petition is dismissed.