LOTUS LINE PRIVATE LIMITED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs. 24,979-2-4. The facts which led to the filing of the suit are not now in dispute as they have been concurrently found by the two Courts below and may be briefly narrated. On April 27, 1948, at about mid-day, the vessel Padam belonging to the appellant arrived in the Dharamtar creek carrying a cargo of 3,500 bags of manure weighing about 250 tons and laid anchor alongside Dharamtar jetty lying on the Pen side of the creek on the Pen-Khopoli road. The Dharamtar jetty is meant for small vessels bringing passengers and luggage crossing the creek and so the peon on duty there requested the master of the ship to remove the vessel into the creek and to unload the cargo with the help of small boats. The master of the ship agreed to do so. But when he tried to move the vessel away from the jetty, she actually came on top of it due to the force of the ebb tide and got stuck there. The incident was reported by the peon to his superior officer who directed the peon to inform the master to refloat the vessel at night when there was high tide. The master did so at about 3 a.m. The consequence of the vessel getting on the jetty and the attempt to take it off was serious damage to the jetty, which was broken. This damage was found on the next day, i.e., April 28, 1948. An estimate for special repairs of the damage done was prepared soon after and was submitted on May 12, 1948 to the Executive Engineer. The appellant was asked by telegram on May 5, 1948 to send a representative in order that an estimate of the cost of special repairs for the damage done might be prepared. The appellant replied by telegram that a representative would be sent but no one appealed on behalf of the appellant when the estimate was prepared. This estimate was for Rs. 16,400. It appears that sometime thereafter, emergent repairs costing Rs. 2,783 were undertaken to make the jetty workable. Later, some minor repairs posting about Rs. 1,223 were further carried out. In the meantion the appellant was asked again and again to pay for the damage done. The appellant refused to do so and, therefore, the State of Bombay filed the suit claiming the three sums mentioned above for special repairs, emergent repairs and minor repairs and also 6 per centum per annum interest thereon.

(2.) The trial Court found that the above facts had been established by the evidence led before it and that the appellant was liable to make good the loss as it arose on account of the negligence of the master of the ship. It then came to consider the quantum of damages. It came to the conclusion that the claim for Rs. 16,400 was really for reconstruction of the whole damaged area and this showed that the respondent-State wanted restitution and not compensation for the damage done. It, however, refused to give restitution on the ground that it had not been proved that special repairs to the extent of Rs. 16,400 were absolutely necessary for the damaged portion or the jetty. The trial Court also inspected the jetty and was of the opinion that the emergent and minor repairs that had been made had put the jetty in order and traffic was going on as usual. Further it took into account the statement of a witness that a bridge was being constructed over the Dharamtar creek and was likely to be completed within two years. It, therefore, finally gave a decree for Rs. 3,671-12-6 which had been actually spent by the State in making the repairs. The rest of the claim was dismissed.

(3.) This led to an appeal by the State before the High Court, and the only question which the High Court had to decide was the quantum of damages. In that connection the High Court relied on The Mayor, Wednesbury Corporation v. Lodge Holes Colliery Co. Ltd., (1907) 1 KB 78, and held that that case laid down that the general rule was to require the party in the wrong to make compensation and not restitution, but there was an exception to this rule and that exception was where the party complaining of a wrong to property was a corporation or a trustee charged with the maintenance of a highway or other public work. In such a case the wrongdoer was bound to make restitution because a corporation or a trustee who was charged with the maintenance of public works was bound to restore the property in its or his possession to its original condition. On this view, the High Court allowed the appeal and modified the decree of the trial Court by awarding Rs. 19,038-8-0 and interest at 8 per centum from the date of suit till realisation. The present appeal on a certificate granted by the High Court challenges the principle laid down by the High Court, and it is urged that no such principle has been laid down in Wednesbury Corporation's case, (1907) 1 KB 78, and that that case was overruled in Lodge Halls Colliery Co. Ltd. v. Mayor of Wednesbury, 1908 AC 323.