M.S. PUGALAGIRI NADAR AND SONS, THROUGH ITS MANAGING PARTNER SRI S.P. MUTHU Vs. THE UNION OF INDIA (UOI), THROUGH THE GENERAL MANAGER SOUTHERN RAILWAY

JUDGEMENT

(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.) 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: