UNION OF INDIA Vs. MADAN LAL KEJRIWAL

JUDGEMENT

(1.) The plaintiffs-opposite parties instituted a suit against the defendant-petitioner, namely, the Union of India, as owner of the Eastern Railway, Western Railway and Northern Railway Adiministrations for recovery of Rs. 552 on account of the late delivery of a consignment of 179 bags of soapstone powder booked from Dhansa railway station to Barh railway station. According to the plaintiffs case, which has been accepted by both the Courts below, the consignment was booked on 3-5-1962, and ought to nave been delivered at Barh within fifteen days from the date of despatch, that is to say, on or about 18-5-1962. But actually the consignment was delivered on 7-8-1962, that is to say, after a delay of more than two months and a half. There was fall in market price of soap-stone powder and the plaintiffs had to suffer loss on account of the fall in market rate. They valued and claimed the loss at Rs. 3 per bag. The trial Court allowed it at Rs. 2 per bag. The Lower Appellate Court has affirmed the decision of the trial Court. The Union of India has come up in revision under Section 115 of the Code of Civil Procedure.

(2.) Mr. P. K. Bose, learned Advocate for the petitioner, submitted that in view of the provisions of law contained in Clause (d) of Section 78 of the Railways Act the plaintiffs are not entitled to claim damages for late delivery of the consignment on account of loss sustained by them due to fall in market rate. I do not find any substance in the contention of learned counsel. The relevant provisions of Section 78 are:

(3.) I can venture to lend some support to the view I have expressed above from a Bench decision of this Court in the Union of India v. Baijnath Madan Lall, AIR 1951 Pat 219. where the point does not seem to have been pressed on behalf of the Union of India at all that an owner of goods is not entitled to claim damages for loss due to delay in the delivery of the consignment on account of fall in market price. What was pressed before the Bench of this High Court which decided that case was a different point with reference to the principles engrafted in Section 73 of the Contract Act as to what should be the basis of such damages, whether the basis would be the difference between the market price on the date when the goods ought to have been delivered and the price actually fetched by re-sale of the goods, or the difference would be the former price and the market price on the day when the goods were actually delivered. In spite of the provisions contained in Clause (d) of Section 78 of the Railways Act, I am definitely of the view that a claim based on loss suffered by the owner of the goods due to fall in market price on account of delay in the delivery of the consignment is plainly sustainable.