Madras Railway Co. vs Govinda Rau

Subramania Ayyar, J.—The plaintiff, a tailor, with a view to make special profits during the car festival at a place called Karamadai in the

Coimbatore District entrusted to the defendants, the Madras Railway Company, on the 29th February 1896, his sewing machine and a cloth

bundle to be carried from Erode and to be delivered to him at Karamadai. The defendants were, however, not told why the articles were sent.

Through the fault of the defendants servants the articles were not carried to Karamadai until long after the date by which they should, in the usual

course, have arrived at that station. Before they reached the place the festival had come to an end. The plaintiff, who had waited at Karamadai for

a number of days expecting the arrival of the articles, having returned to Erode, the articles were transmitted back and were delivered to him there

on the 26th March 1896.

The plaintiff sued for damages said to have been sustained by him in consequence of the delay in the delivery of the articles. The District Munsif

gave him a decree for Rs. 16-4-0, being the railway fare of the plaintiff and his assistant from Erode to Karamadai and back and their expenses for

food and lodging while at Karamadai.

The first question that arises is whether the plaintiff is precluded from maintaining this suit by one of the conditions printed on the back of the

forwarding note, Exhibit I, That condition is to the effect that the defendants are not responsible for any loss of, or damage to, the goods by reason

of accidental or unavoidable delay in transit or otherwise. It no doubt appears that Exhibit I was neither read nor explained to the plaintiff. But,

assuming that he was in fact ignorant of the condition in question, that does not affect the binding character of the contract evidenced by Exhibit I,

inasmuch as in the portion thereof which bears his mark it is expressly stated that he was aware of the conditions on the back and that he agreed to

the articles being carried subject to such conditions. Per MELLISH, L.J., in Parker v. South-Eastern Railway Co. L.R. 2 C.P.D. 416. He is

therefore precluded from maintaining this suit, unless such a condition is void under 72 of the Indian Railways Act. The question then is whether the

contract between the plaintiff and the defendants in so far as it purports to exonerate the latter from responsibility for delay is, as held by the

District Munsif, void u/s 72 of the Railways Act IX of 1890. In discussing this point I shall proceed on the supposition that the condition covers a

delay which, as found here, was neither accidental nor unavoidable. The Section referred to in so far as it is material for our present purpose runs

thus:

72 (1) The responsibility of a railway administration for the loss, destruction or deterioration of . goods delivered to the administration to be carried

by railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872.

(2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void unless it.

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(b) is otherwise in a form approved by the Governor-General in Council.

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Now, in the present case, there was no loss or destruction of the articles consigned and the applicability of the Section to the case depends

upon the question whether there was, within the meaning of the enactment, a ""deterioration"" for which the contract purports to render the

defendants not responsible, since the words "" damage to ''the goods"" in the contract may be taken to comprehend deterioration. The word

deterioration "" imports the becoming reduced either in quality or in value (see the Standard Dictionary). Having regard to the nature of the articles

and to the very limited delay, it is not possible to suggest that any deterioration in quality could have taken place. As regards the value of the cloth,

however, it might well have been shown to have been otherwise with reference to what was laid down in Wilson v. Lancashire and Yorkshire

Railway Co. 30 L.J. C.P. 232. There the plaintiff, a cap manufacturer, sued the defendants for damages caused by the improper delay in delivering

some cloth. The plaintiff had bought the article with a view to make it into caps for sale during the spring season of the year, but owing to the delay

in transit the plaintiff was unable to sell or use any part of it or to manufacture any part of it into caps for sale in that season. Referring to the fall in

the value of the cloth that could be shown to have taken place in consequence of the same arriving at a time when it was less in demand and less

capable of being applied to an immediate use, WILLIAMS, WILLES and KEATING, JJ., spoke of it as "" deterioration,"" and those learned

Judges as well as BYLES, J., held that in respect of such fall, the same being the direct and natural result of the delay, the carrier was liable even in

the absence of notice of the purpose for which the article was sent. Clearly, therefore, in the case before us if the plaintiff had alleged and proved

that, owing to the loss of the special opportunity for sale of which he wished to take advantage, the cloth had fallen in value compared to what he

could have got for it had he been able to dispose of it at Karamadai as he intended, the plaintiff would have been entitled to a finding that there was

a ""deterioration"" within the meaning of Section 72, and that the condition relied on as operating to limit the responsibility of the defendants in

respect of such deterioration is void, inasmuch as the contract is not shown to have complied with the provision contained in Clause (b) of the

Section. But the plaintiff did not allege and prove that there was any deterioration as just explained. Section 72 does not therefore, apply to the

case, and it follows that the condition in question precludes the plaintiff from claiming the damages awarded to him by the District Munsif, since

they are not due to any deterioration of the articles consigned. T should add that there was another objection, which the District Munsif

overlooked, to those damages being allowed. They consist, as will he seen from what has already been stated, of the trainage for the plaintiff and

his assistant from Erode to Karamadai and back, rent paid at Karamadai for the shop engaged by the plaintiff for doing his work as a tailor and

food expenses for the plaintiff and his assistant during the time they were waiting at Karamadai for the arrival of the articles. It is scarcely necessary

to point out that none of these expenses was the proximate and direct consequence of the delay in the delivery of the articles and were therefore

not awardable as natural damages see Woodger v. Great Western Railway Company ILR 2 C.P. 318 and Gee v. Lancashire and Yorkshire Bail.

Co. 30 L.J. Exch. 11 as the difference between the price which could have been obtained at the festival and that on the date when the cloth was

returned to the plaintiff would have been Wilson.v. Lancashire and Yorkshire Railway Company 30 L.J. C.P. 232 already cited. No doubt had the

plaintiff caused intimation to be given to the defendants when the articles were entrusted to them that he wanted them for sale or use at the festival,

it may be that the items allowed by the District Munsif would be awardable as damages within the contemplation of the parties. But, as already

stated, the defendants were not informed when they undertook to carry the goods that these were required by the plaintiff at the specific time at

which and for the specific purpose for which he wanted them at Karamadai. The items allowed by the District Munsif were therefore too remote

and ought not to have been decreed.

For all the reasons stated above I would set aside the decree of the District Munsif and dismiss the suit, but in the circumstances without costs.

Benson, J.

The question for our decision is how far the Railway Company is liable for damages said to have been caused to the plaintiff by the Company''s

failure to deliver certain goods to the plaintiff within a reasonable time after they were entrusted to the Company to be carried from Erode to

Karamadai. It is admitted that the Railway Company had no notice that the goods were required to be delivered within a fixed time for any special

reason. Apart from any special contract, the responsibility of a Railway Company for the loss, destruction or deterioration of goods is declared by

Section 72 of the Railways Act (IX of 1890) to be that of a bailee as defined in Sections 151, 152 and 161 of the Indian Contract Act, and the

last Section enacts that "" if, by the fault of the bailee, the goods are not returned, delivered, or tendered at the proper time, he is responsible to the

bailor for any loss, destruction or deterioration of the goods from that time."" In the present case there was no loss or destruction of the goods--nor

was there any change in the absolute condition of the goods, but the word "" deterioration "" is wide enough to cover a falling off in the value of the

goods due to their not having been delivered in time to enable the plaintiff'' to take advantage of the special market which would have been

available during the festival at Karamadai if they had been delivered in due time. In other words, the plaintiff might have claimed as damages the

difference between the ordinary value of the goods at Karamadai and the special value which they would have had, if they had been delivered to

him at the time contemplated so as to be available for the special market then existing at Karamadai Wilson v. Lancashire and Yorkshire Railway

Company 30 L.J. C.P. 232 and illustration (q) to Section 73 of the Indian Contract Act, which illustration appears to be based on the English

case)]. The plaintiff, however, did not allege or prove any such "" deterioration, "" though there was a vague claim and vague evidence as to "" loss of

profit"" owing to delay in delivery. It was, however, distinctly held in the above case, and illustration (q) to Section 73 of the Contract Act distinctly

shows that the plaintiff could not in such a case recover any damages for loss of profit. If "" deterioration "" in the sense above stated had been

proved, the Railway Company would not have been protected by the special contract on the back of the forwarding note to the effect that the

Company is not liable "" for any loss of, or damage to, any goods whatever by reason of accidental or unavoidable delays in transit or otherwise,

since the contract does not exclude "" deterioration "" in the above sense, but only loss of, or damage to, the goods unless indeed the words

damage to the goods"" can be held to include ''deterioration"" due to extrinsic causes. Even if they could be so held (and I think it would be a strain

on the language to do so), there is still the objection that it is not shown that the contract was in a form approved by the Governor-General in

Council as required by Section 72 of the Railways Act, and it may well be doubted whether sanction would have been given for so unreasonable a

contract. For all these reasons the District Munsif was, I think, right in disallowing the plaintiff''s claim for loss of profits, but I think he was wrong in

allowing the plaintiff the rail fare of himself and his assistant from Erode to Karamadai and back, and the cost of their food and lodging at

Karamadai. Such damages could not have been in the contemplation of the parties when they made the contract, nor can they be said to have

naturally arisen in the usual course of things from the breach, since the Railway Company had no notice of the reason why the things were being

sent to Karamadai, or of the arrangements which the plaintiff was making to utilise them there. In other words, these damages are too remote and

do not fall within the purview of Section 73 of the Contract Act. I agree, therefore, in holding that the decree must be set aside and the suit

dismissed, but in all the circumstances without costs.