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Judgment
Thadani, C.J.—This is an appeal from the judgment and decree of the Additional Sabordinate Judge, A. V. D. dated 29th March 1946, by which he decreed the plaintiffs'' suit for a sum of Rs. 20,078-7-0 with costs against defendant 1 and 2 and awarded interest at the rate of 6 p.c. p. a from the date of the decree till realisation.
The plaintiffs Messrs. Jesraj Tilakchand Labhohard, brought a suit for the recovery of a sum of Rs.. 20,073-7-0 as compensation from defendants 1 and 2 for the loss sustained by them by reason of the non-delivery of certain goods carried by defendant 2 a State Railway, controlled by defendant 1.
On 17th June 1944, Messrs. Jaswant Ray & Bros., of Calcutta, who were impleaded as defendant 3, consigned 54 casks of cocoanut oil, weighing some 270 maunds, at the Budge Budge Railway Station to be delivered at the Amingaon Railway Station of the B. & A. Railway. The consignment was to be delivered to Messrs. Bhurmal Sohanlal of Fancy Bazar, Gauhati, Assam, who were impleaded as defendant 4. Defendant 4 assigned the railway receipt covering the goods in suit, for consideration, to Messrs. Meghraj Begwani of Fancy Bazar, Gauhati, impleaded as defendant 5. Defendant 5, in turn, assigned the Railway Receipt, for consideration, in the sum of Rs. 19,027-7-0 to the plaintiff Firm on 26th June 1944. The consignment in question did not reach its destination and the plaintiff Firm wrote a letter to the Chief Commercial Manager of the B. & A. Railway on 14th August 1944 drawing his attention to the non-delivery of the consignment, requesting him to make an enquiry into the matter. The Chief Commercial Manager of the B. & A. Railway apparently forwarded a copy of this letter to the Station Master, B. & A. Railway, Santahar, enquiring from him whether the consignment had been received at that station and whether it had been despatched to its destination. A copy of this letter was also sent to the D. I., B. & A. Railway, Lalmonirhat, asking him to. trace the consignment and let him know where it was. The plaintiff waited for 8 weeks and as he received no reply from the Chief Commercial Manager, B. & A. Railway, he sent him a reminder. On 4th October 1944, a reply was received from the Chief Commercial Manager stating that the matter was under inquiry. On 12th October 1944, the plaintiff sent a pleader''s notice to the Secretary to the Govt. of India in the Department of Railway, New Delhi, and to the General Manager, B. & A. Railway, Calcutta, u/s 77, Railways Act, and u/s 80, Code of Civil Procedure., and in due course brought the present suit on 2nd January 1945.
A joint written statement was filed by defendants 1 and 2, in which they contended that the plaintiffs had no cause of action and denied the averments made in para 1 of the plaint, and disputed the plaintiffs'' title to the consignment. They also contended that as the plaintiff firm was not registered under the Indian Partnership Act, the suit was liable to be dismissed, and disputed the validity of the notice served upon them u/s 77, Railways Act, and Section 80, Code of Civil Procedure.; in any case, they contended that the claim was highly exaggerated, and put the plaintiffs to proof.
On the pleadings the trial Court framed the following issues:
Whether legally valid notices u/s 77, I. R. A. and under S 80, Code of Civil Procedure., were served on the principal defendants?
Whether the plaintiff Firm acquired any right to the consignment in question by the alleged sale thereof to them by the consignee, and whether the alleged transfer or ownership of the consignment is binding on the contesting defendants? If not, whether the plaintiff can maintain this suit?
Whether the plaintiff''s claim is excessive, (Sic) alleged in W S.?
To what relief, if any, is the plaintiff entitled?
The only questions argued before us are (1) the liability of the Railway for the non delivery of the consignment, (2) the amount if any properly payable as compensation to the plaintiffs, (3) interest.
We think the learned Judge has omitted to frame the most important issue bearing upon the responsibility of a Railway Administration for the loss of the consignment delivered to the Administration. The responsibility of a Railway Administration, subject to the other provisions of the Indian Railways Act, is that of a bailee under Sections 151, 152 and 101, Contract Act, 1872, but it is open to the Railway Administration to limit its responsibility in the manner stated in Section 72 (1), Railways Act by an agreement in writing signed by or on behalf of the person sending or delivering to the Railway Administration the animals or goods, and otherwise in a form approval by the Fedoral Railway Authority. The failure, however, of the learned Judge to frame an issue in this behalf, does not affect the decision of the case, for the reasons which we will now proceed to give.
In para 3 of the plaint, the plaintiff firm had clearly stated that the consignment in question was carried by the Railway Administration under Risk Notes A and B, thereby admitting that the Railway Administration had limited its responsibility in terms of the two Risk Note. Risk Note B which alone is applicable to the facts before us is in these terms:
In consideration of such lower charge, the consignor agreed and undertakes to hold the Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to, the consignment from any cause whatsoever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants, provided that in the following cases: (a) non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid down in the tariff or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non-delivery is not due to accidents to trains or to fire;
(b) pilferage from a package or packages forming part of the said consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery;
the Railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but, If misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.
Mr. Medhi for the appellant, the Governor-General of India in-Council, has contended that, in view of the failure of the plaintiff firm to plead that the loss of the consignment arose from misconduct on the part of the Railway Administration or its servants, there was no obligation in terms of the proviso contained in the Risk Note B. It may be conceded that it would have been better if the plaintiffs had alleged misconduct on the part of the Railway Administration or its servants in the matter of the loss of the consignment, but we do not think, having regard to the facta of this case, the omission to make this particular averment in the plaint affects the decision arrived at by the trial Court. The decision of the case turns upon the correct interpretation of the observations made by their Lordships of the Privy Council in the case reported in AIR 1937 152 (Privy Council) The head note to the decision is in these terms:
In a dispute arising in a case coming under the provision to Risk Note B, procedure is the following:
On the occurrence of either of the case (a) or (b) the obligation on the part of the Railway to disclose the nature of their dealings with the consignment, while under their control, arises immediately, and is not postponed to the stage of litigation. If the consignor is not satisfied, recourse to a Court of law is contemplated, and the Railway should submit their evidence first at the trial. If the consignor be not even then satisfied with the disclosure made, he should say so and the Court will decide whether the consignor''s demands go beyond the obligation of the Railway. The Railway should then have an opportunity of meeting the demands of the consignor, so far as endorsed by the Court, before their case is closed; but if they fail to take this opportunity, they will be in breach of their contractual obligation of disclosure.
The question that next arises is whether misconduct may fairly be inferred from the evidence of the Railway; if so, the consignor is absolved from his original burden of proof. But in this case, the decision of the Court may be given after both sides have closed their evidence.
It is for the Railway to decide whether they have adduced all the evidence they consider desirable in avoidance of a fair inference of misconduct. If they withhold any material evidence, they may either be in breach of the contractual obligation of disclosure, or on the next question of a fair inference, may expose themselves to the presumption u/s 114 (g), Evidence Act. If the obligation of disclosure has been discharged and the evidence given by the Railway does not lead to a fair inference of misconduct, the proviso will cease to operate and the consignor will be relegated to his original burden of proof of misconduct.
It is to be remarked that the procedure laid down by their Lordships of the Privy Council makes no reference to pleadings, and we think, for the plain reason that the procedure stated by them is independent of the pleadings. The procedure as laid down by their Lordships of the Privy Council is to be followed because of the particular obligation imposed by the proviso contained in the Risk Note B, and has nothing to do with the question of pleadings. In this view, we are unable to accept the contention of Mr. Medhi that before any question relating to the discharge of any obligation arose, the plaintiffs were bound to state that the loss of the consignment was due to the misconduct of the Railway Administration or its servants.
Some 5 months before this litigation commenced, the plaintiffs called upon the Railway Administration to make an enquiry into the matter of the loss of the consignment, and sent a reminder to the Railway Administration 3 weeks later on 9th September 1944. It is true that in the 2 letters, there is no specific request made by the plaintiffs for a disclosure by the Railway Administration as to the manner in which it had dealt with the consignment in transit, but it is plain from the endorsement of the Chief Commercial Manager forwarding a copy of the letter to the Station Master B. & A. Railway, Santahar, and D. I., B. & A. Railway, Lalmonirhat, that he understood the implication of the request made by the plaintiffs in the matter of the enquiry into the non-delivery of the consignment and we think it was the duty of the B. & A. Railway Administration then before the litigation commenced to furnish to the plaintiffs particulars of the manner in which the consignment was dealt with in transit. Even after a pleader''s notice was served upon the Railway Administration, the Deputy Director, Railway Board, merely replied that the pleader''s notice, dated 12th October 1944, bad been forwarded for disposal to the General Manager, B. & A. Railway, Calcutta. No communication, however, was received by the plaintiffs from the General Manager, 13. & A. Railway. It is clear then that before the litigation commenced, the Railway Administration had failed to discharge its obligation under the proviso contained in Risk Note B, and when the dispute came to the stage of litigation, the Railway Administration again did not lead any evidence in discharge of its obligation under the proviso contained in Risk Note B.
Mr. Medhi for the appellants contends that when the plaintiffs found that the Railway Administration had not led any evidence in the matter of discharging its obligation under the proviso to Risk Note B, it was their duty to call upon the Railway Administration to give such evidence. We do not think there was any obligation on the plaintiffs to call upon the Railway Administration to give evidence at the trial in this behalf, the obligation of the Railway Administration was unconditional. The question then arises--what is the effect of the failure of the Railway Administration to lead evidence in the matter of discharging its obligation under the proviso contained in Risk Note B? The answer has been given by their Lordships of the Privy Council, in these words:
It is for the Railway to decide whether they have adduced all the evidence they consider desirable in avoidance of a fair inference of misconduct. If they withhold any material evidence, they may either be in broach of the contractual obligation of disclosure or on the next question of a fair inference, may expose themselves to the presumption under S 114 (g) Evidence Act.
These observations of their Lordships of the Privy Council apply with greater force in a case where the Railway Administration has elected not to lead evidence at all in the matter of discharging its obligation. We think, in this case, there is the clearest justification for raising a presumption against the Railway Administration u/s 114 (g), Evidence Act, for we cannot believe that, when the Chief Commercial Manager of the B. and A, Railway, forwarded a copy to the Station Master, B. & A. Railway,. Santahar, and the D. I., B. & A. Railway, Lalmonirhat, asking them to let him know what had happened to the consignment, the Station Master and the D. I, failed to make any report at all. It is reasonable to suppose that they did make a report, but that it has been withheld. The terms of Clause (g) of Section 114, Evidence Act, are there clearly attracted, the presumption being that if the Railway Administration had produced the reports and led evidence as to the manner in which the consignment wag dealt with in transit, the reports and the evidence would have gone against the Railway Administration, and given rise to an inference of misconduct on the part of the Administration or its servants. It is not inconceivable that the Station Master and the D. I. reported that the consignment was lost owing to theft committed by the servants of the Railway, in which case, it is plain that the Railway Administration could not claim freedom from responsibility for the loss of the consignment, whether upon the basis of its responsibility as a bailee or its responsibility as limited by the terms of Risk Note B,
Mr. Bose who argued the respondents case with considerable ability, has quite properly invited us to hold that in any view of the case, bearing in mind the provisions of Section 72, Railways Act, the respondents were entitled to a decree Taking first the responsibility of the Railway Administration as a bailee, Mr. Bose argued that even as a bailee it had to give evidence to satisfy the Court that it had discharged its obligation under the Contract Act, and that the only way in which it could have discharged its obligation as a bailee was by giving evidence as to the manner in which the consignment was dealt with in transit, quite apart from its obligation under the proviso contained in the Risk Note B, having regard to the provisions of Section 106 Evidence Act. In support of his contention Mr. Bose referred us to a decision of the Chief Court of Rind reported in National Swadeshi Stores v. Governor-General in Council A.I.R 1948 Sind 26 : ILR (1947) Kar. 144. We think the contention is well-founded.
Viewed in either light--whether in the light of the observations made by their Lordships of the Privy Council with reference to the proviso contained in the Risk Note B, or in the light of the provisions of Section 72, Railways Act, laying down that the responsibility of the Railway Administration is that of a bailee--the result is the same, where the Railway Administration elects not to give any evidence at all in the course of the litigation.
Ray J. in a case reported in Governor -General in Governor-General in Council Vs. Visheshwar Lal, had occasion to deal with the dual aspect of the responsibility of the Railway Administration as a bailee and as limited by the execution of Risk Notes A and B. In para. 7 of the report, he observed:
A long series of decisions have clustered round the various problems that arise out of cases of loss or nondelivery where the cases are covered by Risk Notes A and B. The result of those Judicial decisions makes, however, one thing certain beyond any possibility of doubt that where the Railway Administration fails to make a full disclosure of how the consignment was dealt with during the time it was in its possession or control, the consignor is entitled to an inference in his favour and adverse to the Administration that if the materials withheld would have been produced, they would have supported the case of misconduct. This principle is based upon Section 114 (g), Evidence Act.
With respect, we agree with this principle which applies in all its implications to the facts of the case before us.
In a case reported in Governor-General in Governor-General in Council Vs. Ramglal Nandlal, , a cape covered by Risk Note Z, Agarwalla Ag. C. J. and Meredith J. observed:
Here too the defendant (Railway Administration), In order to avoid an Inference adverse to him, for non-examination of the Watch and Ward staff at Karamnase, and for the non-production of the reports, should have examined the men who were on duty. The mere fact that the plaintiff did not call upon the defendant to produce this evidence, was no reason why the Court below should not have drawn an adverse inference against the defendant on the ground of the non-production of this evidence.
We think these observations apply equally to a case where the responsibility of the Railway Administration is that of a bailee, or where it is limited by the execution of Risk Note B.
Mr. Bose next referred us to two cases reported in Manchester Sheffield and Lincolnshire Rly. Co. v. H. W. Brown (1883) 8 A.C. 703 : (53 L. J. Q. B. 124) and Duckham Brothers v. G. W. Rly. Co. (1899) 80 L. T. 774 : (15 T. L. R. 328) but we do not think it is necessary to consider them in the view we have taken of the responsibility of the Railway Administration in the matter of discharging its obligation as a bailee and its obligation under the proviso to Risk Note B.
Mr. Medhi for the appellant, on the other hand, has relied on Ganesh Dass-Bisheshwar Lal Vs. East Indian Railway Company, in which it is stated that the Railway Administration must first admit loss in its pleadings and the onus will then be on the plaintiff to prove that the loss was due to wilful neglect of the Company or its servants. Mr. Medhi has argued that as the Railway Administration did not admit the loss in its pleadings, it could be held responsible only upon proof of misconduct of the Railway Administration or its servants, and as no such proof was given by the plaintiff, the Railway Administration was free from all responsibility in the matter of the loss of the consignment. We do not think Ganesh Dass-Bisheshwar Lal Vs. East Indian Railway Company, goes as far as that, but if it does, it goes counter to the observations of their Lordships of the Privy Council, to which we have referred. Two other cases reported in Ralliaram Dingra v. Governor-General in Council AIR. 1916 Cal. 249 : (I. L R. (1944) 2 Cal. 487) and Governor General in Council v. Kishengopal Bhartia AIR 1948 Cal 300, upon which Mr. Medhi relied, have no application to the facts before us.
Our conclusion then is that the Railway Administration, in electing not to give any evidence at all, failed to discharge its obligation not only as a bailee but also its obligation under he proviso to Risk Note B, and its failure in this behalf makes it responsible for the loss of the consignment, by reason of the presumption as to misconduct which can fairly be drawn under the provisions of Section 114 (g) Evidence Act.
It was next argued by Mr. Medhi that assuming that the Railway Administration was responsible for the loss, the amount claimed by the plaintiff is in excess of the amount to which they are entitled. Mr. Medhi''s argument is that the plaintiffs cannot claim the price paid by them, namely a sum of Rs. 19,000 odd, in view of the fact that the price of cocoanut oil was controlled under the provisions of the Prevention of Hoarding and Profiteering Ordinance No. XXXV [36] of 1943. Whether, however, the price of cocoanut oil was controlled in Assam, was a question of fact, and the Railway Administration should have pleaded it in its written statement. In spite of the fact that this defence was not specifically taken in the written statement the learned trial Judge thought fit to deal with it in his judgment. It appears that 2 witnesses--one Mr. Baker and another Mr. Osman--were examined by the Railway Administration on the question of the price of cocoanut oil having been controlled. But Mr. Baker was unable to say that cocoanut oil was controlled in Assam, Mr. Osman was more definite on the punt. He stated:
So far as my information goes, there is no control on the price of cocounut oil in Assam.
Assuming now that Section 6 of the Ordinance can be invoked, there is no evidence on the record bearing on the question of the landed cost of cocoanut oil or the cost of its production. The only evidence we have before us is that the wholesale price of this oil in Calcutta and its suburbs was Rs. 42 a maund, and retail price Rs. 1-1-0 per seer. Mr. Medhi''s contention is that the plaintiff would be entitled at the most to a sum calculated by the addition of 20 per cent to the wholesale price of Rs. 42 a maund prevailing in Calcutta and its suburbs. But admittedly Dum Dum is not a suburb of Calcutta, Moreover, Section 6 of the Ordinance does not refer only to landed cost, it also refers to cost of production. It is a common experience in India that cost of production in some cases exceeds the landed cost of the same article. It is impossible then to fix with any degree of certainty the price of cocoanut oil prevailing on the due date in this case by the addition of 20 per cent to the wholesale price prevailing in Calcutta and its suburbs. In my opinion an addition of 33 per cent to a sum of Rs. 8572 8 0 being the price of cocoanut oil calculated at the rate of Rs. 42 the control rate prevailing in Calcutta. (sic)
On the question of interest also we think the decision of the learned Judge cannot be sustained. Payment of interest is governed by the provisions of the Interest Act, and we can see nothing in the facts of this which warrants the awarding of interest. To this extent, we propose to modify the decree of the trial Court by disallowing a sum of Rs. 1000 odd, claimed by the plaintiffs as interest.
The result is that there will be a decree for the plaintiffs for Rs. 16,936 1-0 and costs thereon, and interest at 6 per cent p.a. from the date of the decree till realisation. The plaintiffs have not claimed interest from the date of the suit till the date of the decree.
Ram Labhaya, J.
I have had the advantage of reading the judgment of my Lord the Chief Justice. I entirely agree with him in the conclusions reached by him. I am adding a few words in view of the Importance of the main question involved in the case. (His Lordship stated the facts and proceeded);
The plaintiffs claimed to be a registered firm. In Para. 3 of the plaint, they, when alleging that the consignment was booked at Budge-Budge, admitted that the consignment was booked under Risk notes forms A and B. They further described the transactions as a result of which they became entitled to the consignment. In para. 5 of the plaint they averred in clear terms that the consignment never reached its destination, was lost in transit and defendants 1 and 2 (the Governor-Ganeral in Council and B. A. Railway) were liable to compensate them for the loss. In the heading of the plaint also, the claim was described as one for compensation for damage caused by non-delivery and loss of goods, The copy of the plaint sent with the notices to the defendants contained identical statements both in the heading and Para. 5. It is clear that the claim was for loss and non-delivery of the consignment and in spite of the admission that the consignment was booked under Risk Notes A and B, the plaint does not contain any allegation of mis-conduct on the part of the Administration or its servants,
The written statement is a brief document couched in language which is clear and unambiguous: The pleas raised were as follows : 1. That plaintiffs had no cause of action against the defendants and they had no right to sue. The statements in Paras. 1 and 3 of the plaint regarding plaintiffs'' title to the consignment in question were not admitted. Plaintiffs were put on proof of (1) that they were a registered firm and (2) that they had acquired a valid title to the consignment before suit. 2, That the suit was not maintainable in its present form. 3. That the suit was bad as notices sent were not sufficient and valid in law. 4. That the '' claim had been highly exaggerated. The plaintiffs were put to strict proof of the allegations made in this respect. The price at which it was alleged that the plaintiffs had purchased the consignment, was not admitted, 5. Liability to pay interest was denied.
The first three paras of the written statement embody the first three defences reproduced above. In para. 4, the defendants gave their answer to the claim for compensation. This para does not refer in express terms to Para. 6 of the plaint but from its contents it is clear that it embodied an answer to Para. 5 of the plaint. In Para. 5 compensation for loss and non-delivery of the consignment was claimed. The whole answer to the claim as put in Para. 5 of the plaint was that the claim had been highly exaggerated Paragraph 4 of the written statement is follows:
That without prejudice to any of the foregote pleas, the defendant submits that the claim has been highly exaggerated and unduly inflated and puts the plaintiffs to the strictest proof of the same. The defendant does not admit the price of the consignment given in the plaint and denies that the plaintiffs are entitled to interest at 12 per cent, from 26th April 1944 or any interest at all.
It is important to note that the Administration was conscious that the plea that the claim was inflated, involved by necessary implication the admission of liability to compensate the true owner of the consignment. It was for this reason that it was stated expressly that the plea was not to prejudice defences raised in the foregoing paras of the written statement. The allegations of loss and non-delivery of the consignment wore not denied. They shall be deemed to be admitted under Order 8, Rule 6, Code of Civil Procedure., The liability to pay compensation was also admitted, if not expressly at least by necessary implication. The amount of compensation alone was disputed. In these circumstances, the learned Additional Sub-Judge framed the following issues:
Whether legally valid notices u/s 77, Railways Act and u/s 80, Code of Civil Procedure. were served on the principal defendants ?
Whether the plaintiff firm acquired any right to the consignment in question by the alleged sale thereof to thorn by the consignee and whether the alleged transfer of ownership of the consignment is binding on the contesting defendants ? If not, whether the plaintiffs can maintain this suit ?
Whether the plaintiffs claim is excessive as alleged in the written statement ?
To what relief, if any, is the plaintiff entitled ?
These issues embrace questions regarding the lotus standi of the plaintiffs, their right to sue as a firm, the validity of notices and the reasonable character of the amount claimed. No issue was framed as to whether the suit was maintainable in the form it was laid and the appellants are not making any grievance of it. It appears that this particular defence was abandoned at that very stage. All other points arising from the pleadings were put in issue. The defendants never claimed in the trial Court that they disputed their liability to compensate the original owner by reason of Risk Notes A and B, and at no stage asked for any issue or adjudication on that point.
The trial Judge found all the issues in favour of the plaintiffs. He also allowed interest at 12 per cent. and granted them a decree for the sum claimed, viz., Rs. 20,079-7-0 with full costs. The amount decreed was to carry interest at 6 per cent, per annum from the date of the decree till realisation.
The appeal is on behalf of the Governor-Ganeral in Council, The first contention raised was that as the consignment was admittedly booked under risk Notes A and B, the plaintiffs could not claim compensation without alleging and proving misconduct on the part of the Administration or its servants. This plea, whatever its nature, cannot be allowed to be raised at this stage for the first time. The plea involves a total denial of liability to pay compensation to the true owner of the consignment. It could be raised in the trial Court. Not only was there an omission to raise this plea, the liability to pay compensation was admitted though the extent of this liability in terms of money was in question. It has been shown above that without alleging misconduct of any kind, plaintiffs in Para, 6 of the plaint claimed compensation for the loss and non-delivery of the consignment. The defendants had the risk notes in their possession. They did not even remotely suggest that the agreement embodied in the risk notes restricted the liability of the Administration. The risk notes were not produced at any stage of the litigation, They are not on the record. There is no suggestion that the Administration and its legal advisers were not aware of their rights under the risk notes. In these circumstances and particularly in view of the language used in para. 4 of the written statement, the omission to dispute the liability to compensate the true owner of the consignment cannot oven be attributed to inadvertence. It appears to be a conscious act and there ought to be some good reasons for the adoption of this course. The admission of liability necessarily implied in the written statement was subject to defences expressly raised in the first three paras of the written statement.
If the plea is allowed to be raised now, it would amount to permitting withdrawal of an important admission made in plaintiffs'' favour. It will also involve allowing the defendant to put forward a case different from and diametrically opposed to the case they set up in the Court below. This, in my view, is not permissible. The defendants cannot be allowed to convert their admission into a denial of liability for the first time in appeal. They admitted a material fact in no mistake or misapprehension in their written statement. They cannot be allowed at a later stage to change their front and make out'' a new case by denying that fact.
Ground NO. 9 of the memo of appeal is to the effect that the learned Additional Sub-Judge ought to have held on a proper interpretation of the Risk Notes executed in the present case that plaintiffs were not entitled to compensation or at any rate as claimed.'' It is urged that the allegation and proof of misconduct on the part of the Administration or its servants must be there, before any liability for compensation can be fastened on the Administration. Assuming for a moment that this is the correct interpretation of the risk notes, which are not on the record, and assuming that the proof of misconduct is a necessary pre-requisite to a decree for compensation for loss and non-delivery of consignment booked under Risk Notes A and B, can the defendants who admitted liability consciously and thus restricted the scope of controversy to the quantum of compensation, be permitted to resile from this position without any valid reason? The statement of the plaintiffs in para 3 of the plaint was that the consignment was booked under Risk Notes. What was conceded was that the Risk Notes were executed. If, therefore, the Administration wanted to rely on the terms and the conditions of the Risk Notes it had to say so. The plea of denial of liability found on the risk notes should have been raised. Risk notes should have been produced. Instead of doing all these, the existence of liability as distinguished from its extent was conceded. Even if, therefore, the interpretation which Mr. Medhi, advocate for the appellants, seeks to put on the risk notes is accepted as correct for purposes of argument, the plea in my humble opinion cannot be permitted to be raised at this stage in the circumstances of this case. It was not pressed at any stage of the litigation in the trial Court. The judgment of the trial Court assumes the existence of liability on the part of the Administration to compensate the true owner, without any objection from the defendants. It has dealt with the disputed question of the quantum of liability after disposing of the questions covered by the first two issues.
In this view of the matter, it is not necessary to consider whether in view of the fact that Risk Notes A and B were duly executed, the failure on the part of the plaintiffs to plead misconduct in the plaint was fatal to the suit. But as the question was discussed at great length and the learned Chief Justice has based his judgment on the interpretation of Risk Note B, I propose to deal with the question briefly.
At the outset, it may be stated that in this case, the loss of consignment and its nondelivery are admitted. Risk Note A has no application to the cage and Mr. Medhi has not relied on it. The rights and obligations of the parties have to be determined in relation to Risk Note B alone. u/s 72 (1), Railways Act, the responsibility of a Railway Administration for the lose, destruction or deterioration of animals or goods delivered to the Administration to be carried by railway is subject to the other provisions of the Act, that of a bailee under Sections 151, 152, 161, Contract Act 1872. Under Clause (2) of Section 72, a Railway Administration may limit its responsibility by an agreement in a form approved by the Central Government and signed by or on behalf of the person sending or delivering to the Railway Adminstration the animals or goods. Risk note B is in a form approved by the Government. It is utilised when in consideration of a lower charge the consignor is prepared to allow the Administration to restrict its ordinary responsibility of a bailee to the extent the use of this Risk notes makes possible. When Risk note B is executed, a consignor agrees in consideration of the lower charge to hold the Administration harmless and free from all responsibility for any loss, destruction or damage to the consignment from any cause whatsover except on proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway Administration or its servants. The agreement is further qualified by a proviso which in certain cases mentioned below casts on the Administration a duty to disclose to the consignor as to how the consignment was dealt with through out the time that it was in its possession or control and if necessary to give evidence thereof before the consignor is called upon to prove misconduct. It is only when misconduct on the part of the Railway Administration or its servants cannot be properly inferred from the evidence given by the Administration that the burden of proving this misconduct lies on the consignor. The cases in which the duty of disclosure and proof, if necessary, as to how the consignment was dealt with whilst in the control of the Administration is cast on the Administration are:
(a) Non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment packed in accordance with the instructions laid down in the tariff or, where there are no Such instructions, protected otherwise than by paper or other pairing readily removable by hand and fully addressed, where such non-delivery is not due to accidents to trains or to fire;
(b) Pilferage from a package or packages forming part of the said consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery.
In this case the entire consignment was lost, It consisted of 54 casks. There is no suggestion that the consignment was not properly addressed; nor was there any allegation of accident. to the train or fire. The case was admittedly covered by Clause (a) of the proviso. The Administration was, therefore, bound to disclose and if necessary to prove to the consignor how the consignment was dealt with throughout the time it was in its possession or control before the consignor could be called upon to prove misconduct. When an entire consignment or package is lost during transit even though properly addressed, the circumstances attending the (sic) would be within the knowledge of the Administration. It is only when all facta bearing on the manner in which the consignment was dealt with are disclosed that it will be possible for the consignor to say that an inference of misconduct can be drawn on to allege and prove misconduct on the part of the Administration. Any allegation of misconduct on the part of the consignor without knowing the circumstances as would happen when he is not taken into confidence as to the way in which the consignment was dealt with by the Administration before loss, would be a reckless conjecture bordering on falsehood. The risk note therefore, provides that in cases falling under cls. (a) and (b) of the proviso, the burden of proving misconduct should lie on the consignor after the Administration has disclosed and given evidence, if necessary, of the maner in which the consignment was dealt with so long as it remained in its possession or control and if misconduct on the part of the Administration or its servants could not be fairly inferred from such evidence.
The Administration has admittedly not discharged its obligations of disclosure either before suit or during its pendency. On 14th August, plaintiff informed the Chief Commercial Manager that the consignment has not reached its destination. They requested him to make an enquiry into the matter and also requested other officers of the Administration for information about its whereabouts. They got no reply. A reminder had to be sent. In answer to it, a reply was received intimating that the matter was being enquired into. They waited for some time more. No further information was at all received as to what had happened to the consignment. They sent notices u/s 77, Railways Act and u/s 80, Code of Civil Procedure., alleging both loss and non-delivery. Their allegations were allowed to go unchallenged during the period of notice. In the plaint both loss and non-delivery were specifically pleaded. They were not denied either expressly or by necessary implication near or remote. The loss was for all purposes admitted before suit and even in the written statement. If, in spite of loss and non-delivery the Administration wanted to take advantage of their restricted responsibility under the risk notes, it bad to show either that the case was not covered by cls. (a) and (b) of the proviso or to disclose and if necessary, to prove how it dealt with the consignment before it was lost. When no information of any kind was vouch-safed to the plaintiffs about the handling of the consignment by the Administration, they were not in a position to allege misconduct and it seems to me that in the circumstances of this case it was not necessary in law for thorn to do so far obvious reasons. The contention that a plaintiff, where consignment has been booked under Risk Note B, cannot under any conceivable circumstances succeed without expressly alleging misconduct does not seem to be justified by the language of Risk Note B, and Mr. Media has not been able to cite any authority in support of so sweeping a proposition. An authoritative interpretation of the Risk note form B from their Lordships of the Privy Council is to be found in AIR 1937 152 (Privy Council) This decision was followed in Governor-General in Council Vs. Visheshwar Lal, Lord Thankerton in delivering the judgment of their Lordships of the Privy Council observed as follows:
The first portion of the proviso provides that the railway administration shall be bound to disclose to the consignor ''how the consignment was dealt with throughout the time it was in the possession or control, and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct.'' In their Lordships'' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b), and is not confined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand the closing words of the obligation clearly apply to the litigious stage. As to the extent of the disclosure, it is confined to the period during which the consignment was within the possession or control of the railway administration; it does not relate, for instance, to the period after the goods have been theftuously removed from the premises. On the other hand, it does not envisage a precise statement of how the consignment was dealt with by the administration or its servants. The character of what is requisite may vary according to the circumstances of different cases, but if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially decided. As to the accuracy or truth of the information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that, us was properly done in the present suit, the railway administration should submit their evidence first at the trial.
At the close of the evidence for the administration two questions may be said to arise, which it is important to keep distinct. The first question is not a mere question of procedure, but is whether they have discharged their obligation of disclosure, and in regard to this, their Lordships are of opinion that the terms of the risk note require a step in procedure, which may be said to be unfamiliar in the practice of the Court; if the consignor is not satisfied with the disclosure made, their Lordships are clearly of opinion that it is for him to say so, and to call on the administration to fulfil their obligation under the contract and that the administration should then have the opportunity to meet the demands of the consignor before their case is closed; any question as to whether the consignor''s demands go beyond the obligation should be then determined by the Court. If the administration fails to make the opportunity to satisfy the demands of the conisgnor so far as endorsed by the Court, they will be in broach of their contractual obligation of disclosure.
The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration; if so, the consignor is absolved from his original burden of proof. But, in this case, the decision of the Court may be given when the evidence of both sides has been completed. It is clearly for the Administration to decide for themselves whether they have adduced all the evidence which they consider desirable in avoidance of such fair inference of misconduct. They will daubtless keep in mind the provisions of Section 11, Evidence Act.
According to this decision as soon as a case falls under cls. (a) and (b) of the proviso, the obligation on the part of the Administration to disclose the nature of their dealings with the consignment arises. It is not postponed to the stage of the litigation. The necessary disclosure ought to be made before a claimant decides to go to law. The Administration was requested to make enquiries about the consignment as it did not reach the destination when expected. Information as to its whereaboats was asked for Ultimately its loss was alleged in the notices sent to the Administration, Tae Administration had ample opportunities of discharging its initial obligation under the risk note. The language of the risk note as interpreted by their Lord-ships of the Privy Council does not require the owner of the consignment to make an express demand for disclosures at this stage. If the consignment is lost in circumstances which bring it under Clause (a) or (b), the Administration has to make the disclosure In this particular case it cannot be said that no demand was made (by) plaintiffs when asking for enquiry as to what had happened to be communicated to them. If any demand was necessary, it was made in effect though not formally. The Administration had ample opportunity to discharge their obligation under the risk note. It preferred not to do so. Plaintiffs when instituting their suit had no knowledge how the consignment had been dealt with. They could not allege misconduct.
After the institution of the suit, the Administration had another opportunity. It could make the necessary disclosure and put the plaintiffs on proof of misconduct. According to the view of their Lordships if the disclosure is made before suit but it does not satisfy the claimant, the Administration has first to submit its evidence. In this case no disclosure at all had been made before suit. The initial obligation, therefore, continued. The Administration could discharge it if it so desired. The need of course, for it would have been (sic) only if the Administration had believed that its dealings with the consignment did not disclose any misconduct on its part or on the part of its servants. After proving the nature of the dealings it could require the plaintiff to prove misconduct if it could not be inferred from their own disclosures. It may not make any disclosure at all and may not put the plaintiff to proof of misconduct by accepting liability for the loss, This is what the Administration has done in this case. If without making any disclosure, the Administration had contested its liability to compensate the true owner, it would obviously have been in breach of its contractual obligation and thus could not relegate the plaintiffs to the position in which they could have been called upon to prove misconduct. The plaintiffs were not in a position to plead misconduct at any stage of the case It was not possible for them to do so in point of fact. The legal obligation to prove misconduct also did not arise in the absence of disclosures or proof as to manner in which the consignment had been dealt with. This would be the situation according to the rule enunciated by their Lordships of the Privy Council. My conclusion, therefore, is that it was not necessary for the plaintiffs in this case to allege and prove misconduct. Apart from admitting liability the Administration has been clearly in breach of the contractual obligation and cannot claim in enforcement of the contract that the plaintiffs should have alleged and proved misconduct. No issue in these circumstances covering the question of misconduct really arose the. case.
If, however, proof of misconduct is regarded as a condition precedent to a valid claim for compensation, the Administration has by its conduct exposed itself to a presumption that the loss of the consignment was due to the misconduct of the Administration or its servants.
This presumption would arise u/s 114 (g), Evidence Act.
The plaintiff''s by claiming compensation for loss of the consignment without pleading misconduct on the part of the Administration or its servants can at the most be regarded as having treated the Administration as a bailee notwithstanding that Risk note B had been executed. In the absence of any information from the Administration as to how the consignment was dealt with, they did not concede to the Administration the benefit it could claim after discharging its contractual obligation. They were driven to this course and they could legitimately adopt it notwithstanding the admission that the Risk note had been executed. The breach of the contractual obligation under Risk note B disentitles the Administration to claim any benefit under the Risk note. Their responsibility in the case of such a breach would be that of a bailee u/s 72 (a), Railways Act. The Administration could resist the claim by merely showing that they had taken such care of the consignment as a man of ordinary prudence would have done under similar circumstances as required by Section 151, Contract Act. The initial onus of proving that the Administration had, as a bailee, discharged its legal obligation by taking such care as the law required was also on the Administration. In the words of Lord Halsbury:
Where a ballment is made to a particular person, a ballment for hire and reward, the bailee is bound to show that be took reasonble and proper care for the due security and proper delivery of that bailment; the proof of that rests upon him," vide Morison, Pollexfen & Blair v. Walton, (Unreported, 10th May 1909) cited by Buckley, L. J., ia Traver & Sons, Ltd., v. Cooper, (1915) I. K. B. 73 at p. 89: (83 L. J. K. B. 1787).
No effort has been made to discharge this onus either and it was evidently for the reason that the Administration never wanted to dispute their liability to compensate the rightful owner of the consignment, The Administration, in those circumstances, cannot on any conceivable basis evade responsibility to pay compensation for the loss and non-delivery of the consignment to the rightful claimant.
The authorities relied on by Mr. Medhi are distinguishable and are not of any assistance to us in the decision of the case. In the first two cases, AIR 1949 246 (Nagpur) and Governor-General in Council v. Kishengopal AIR 1918 cal. 300, relied on by him, damages were claimed for short deliveries. The consignments were booked under Risk Notes A and B. In both the cases Risk Note A was applicable. Under Risk Note A, the responsibilities of the Administration are not the same as under Risk Note B. The decisions in these cases were based on the combined effect of both the Risk notes. In Ralliaram Dingra v. Governor-General in Council AIR 1946 Cal. 249: (I. L. B. (1944) 2 Cal. 487 ), it was conceded in the circumstances of the case that the burden of proving misconduct was on the plaintiff. In Badridas Firm of Badridas Firm of Purulia Vs. Governor-General for India in Council, the claim for damage was also on account of short delivery. The defendant pleaded that there was no misconduct on the part of the Railway or its servants. The counsel for the petitioners when arguing that all material facts relating to the details of the carriage of the goods from stage to stage had not been disclosed conceded that plaintiff had not called upon the Administration to furnish all the information. As plaintiff had not done so in the trial Court, they were not allowed to make a grievance of it in revision. The observation made in Ganesh Dass-Bisheshwar Lal Vs. East Indian Railway Company, to the effect that the Administration must admit loss in its pleadings also do not help the appellant. The loss was alleged in the plaint and not denied in the written statement. This must be taken as admitted.
The second contention relates to the amount of compensation which has been decreed. Mr. Medhi contends that the amount decreed is excessive. His contention is based on the pro-visions of the Hoarding and Profiteering Prevention Ordinance, 1943 (Ordinance NO. XXXV (35) of 1943) as amended.
The consignee firm Messrs. Bhuramall Sohanlall were entitled to be reimbursed for loss caused to them by non delivery. In para 10 of the plaint it was averred that the consignment was expected to be delivered on 17th July 1944. This allegation was not denied by contesting defendants. The loss to the consignees and also to the plaintiffs, their ultimate representatives, would, it is contended by the learned Counsel for the defendant appellant, be represented by the price at which the consignment could be sold in open market in the middle of July. Plaintiffs have proved that the consignee firm (defendant 4) sold their rights in the consignment to Messrs. Meghraj Begwani (defendants). They in their turn, sold the consignment to the plaintiffs Jitmall Oswal (P. W. 3), a gomasta of Messrs, Meghraj Begwani (defendant 5) was examined on plaintiffs'' behalf. He deposed that the railway receipt, EX. 8, was purchased by his firm for Rs. 17,548 12-3 and was sold to the plaintiffs for Rs. 19,027. According to him, the two transactions, viz., purchase by his firm and the sale to the plaintiffs took place on 26th June 1944. They were entered in the books of his firm on the same day. His statement was that as soon as his firm got the railway receipt they sold it to the plaintiffs. He also stated that the agreement for the purchase of the railway receipt from the consignees (defendant 4) had been made about 16 to 20 days before the actual purchase. This alleged agreement, however, is admittedly oral and there was no entry with respect to it in the books of account of the defendant firm. The actual sale to defendant 5 came on 26th June 1944. The consignment was booked on 17th June 1944. Jitmall''s statement that there was an oral agreement to purchase the railway receipt some 16 to 20 days before the actual transaction is not credible. The consignment had not even been booked from Budge-Budge at that time, the books of account show that the two transactions took place on the same day, The price said to have been paid by Messrs. Meghraj Begwani was Rs. 17,548-12-3 and the plaintiffs are alleged to have paid the sum of Rs. 19,027-7-0. P. W. 4 has deposed that on 29th Asar (14th July) his firm purchased a mnds. 19 ars. of oil (net) at the rate of Rs. 80 per maund. This is the only evidence about the alleged market price of cocoanut oil at Gauhati in the middle of July.
No representative of the consignors or the consignees was examined by the plaintiffs and there is no evidence on the record to show at what price the consignment was sold to Messrs. Bhuramall Sohanlall (defendant 4). Contesting defendants at a somewhat late stage of the in the trial Court asked for leave to examine the consignors by interrogatories. This application was resisted by the plaintiffs and the permission to examine the consignors was refused. Assuming, however, that the consignment was sold by the consignees to Messrs. Meghraj Begwani for Rs. 17.500, it is not unfair to presume in the circumstances of this case that the consignees themselves got it at a lower price. They must have sold it at some profit. The fact, however, remains that the consignee parted with their rights in the consignment on 26th June 1944 for a sum of Rs.17,500 if the statement of P. W. 3 is relied on. The consignees (defendant 4), according to the contention of the learned Counsel for the appellant, could claim this sum or even a higher figure by showing that the market price in the middle of July was higher and the sum claimed was not in excess of the controlled price of cocoanut oil. Plaintiffs have claimed that they paid Rs. 19,027-7-0 for the consignment and they have claimed this sum on this basis. It seems to me that they cannot claim this sum even if it is assumed that the sum of Rs. 19,027-7-0 was actually paid by them as held by the learned Additional Subordinate Judge. The consignees (defendant 4) sold their rights in the consignment to Messrs. Meghraj Begwani (defendant 5). They sold it in their turn to plaintiffs. The measure of compensation ought to be the loss to the consignees even if the transactions of 26th June are to form the basis for the determination of the amount of compensation. The consignees on plaintiffs'' own showing would not have lost more than Rs. 17,600 if the consignment had not been received. The subsequent sale of the consignment to the plaintiffs cannot be the basis for determining the amount of compensation without any reference to the market price in the middle of July. If that could have been made the basis, the amount of compensation could be increased to any extent by a series of transactions. The Administration is responsible only to the consignees. The subsequent or the ultimate transferee stands in the shoes of the consignee so far as the loss is concerned. The price that he pays cannot afford any criterion for assessing compensation, for it is the loss to the consignee which the Administration has to make good. Besides, the sum of Rs. 19,027-7-0 could not be regarded as the market price even on 26th June as the seller of the plaintiffs had purchased it that very day at Rs. 17,500. The plaintiffs cannot, therefore, claim Rs.19,027-7-0 on any conceivable basis and the amount of compensation could not have been anything more than Rs. 17,600 on plaintiff''s own showing. But Mr. Medhi contends that even if the consignee actually sold the consignment for Rs. 17,600, the plaintiffs cannot claim the amount unless they show that the price charged by the consignees was not in excess of that permitted by the provisions contained in the Hoarding and Profiteering Prevention Ordinance, 1943. He points out that the Ordinance was applicable to the whole of British India including Assam. u/s 6 of the Ordinance, no dealer could charge more than 20 per cent, on the landed cost in the case of imported articles and on the producer''s sale price in the case of indigenous articles. This Ordinance, he claims, was in force in 1914. He points out that the finding arrived at by the learned Additional Sub-Judge that cocoaunt oil was not a controlled commodity in Assam is unsustainable in view of the provisions of Section 6 of the Ordinance.
The learned advocate for plaintiffs-respondents had no answer to this contention. The Ordinance was admittedly in force in 1944. It also applied to the province of Assam. u/s 3 of the Ordinance, the Central Government by Notification in the official Gazette had the power to fix maximum price or rate in respect of any article which may be charged by a dealer or a producer. There is no evidence on the record to show that any price of cocoanut oil was fixed by any competent authority for the province of Assam, In these circumstances, Section 6 of the Ordinance became operative. It provides that:
Where no maximum has been fixed by Notification under Clause (c) of Sub-section (1) of Section 3, no dealer or produces shall sell or offer for sale or otherwise dispose of an article for a consideration which is unreasonable.
The word ''unreasonable'' was defined in Clause (2) of Section 6. A consideration under the Ordinance was ''unreasonable'' in the case of a sale by a dealer if it exceeded the amount represented by the addition allowed by the normal trade practice in force on 31st August 1939 to the cost landed as defined is Section 6 (a) (b) (1) of the Ordinance of the article imported or to the price at which the producer sold the article in the case of an article which is not imported, and in the case of a sale by a producer if the consideration exceeded the amount represented by the addition allowed by the normal trade practice in force on 31st August 1939 to the cost of production. Where, however, the addition allowed by the normal trade practice exceeded 20 per cent, the dealer or the producer, as the case may be, had to report the fact to the Controller General for his orders and the consideration was to be deemed ''unreasonable'' unless it had the approval of the Controller General. The excess of 20 per cent. on the landed cost in the case of imported articles and on the producer''s sale price in the case of articles not imported when the sale was by a dealer and similarly the excess of 20 per cent, on the cost of production in the case of the sale by a producer was the maximum limit of the reasonable consideration under the Ordinance till sanction for a higher profit was obtained from the Controller General. The fact that the price of cocoanut oil was not fixed u/s 3 of the Ordinance did not affect the operation of Section 6. The dealers at Gauhati therefore could not charge more than the maximum permissible under the Ordinance without special sanction from the Controller General. The plaintiffs had to prove the extent of the loss caused by non-delivery. They give no evidence as to whether the oil was imported or produced in the country; nor did they give any evidence as to the price that could be legitimately charged for it in conformity with the provisions contained in the Hoarding & Profiteering Prevention Ordinance, 19-13. They oven resisted efforts on the part of the contesting defendants to bring evidence on the record which would have shown the price actually paid by the consignee defendant 4.
From the statement of Mr. Baker, I. C. S., Deputy Director of Consumer Goods, Bengal, who was examined by the defendants it appears that the price of cocoanut oil had been fixed by a notification of the Government of Bengal dated 15th February 1943. The Notification applied to the town of Calcutta and its suburbs. The wholesale price of cocoanut oil was fixed at Rs. 42 per maund. A copy of the Notification was placed on the record by Mr. Baker. This Notification makes on distinction between imported oil and oil produced in the country. The maximum price fixed by it covered both the varities within the specified limits. The current price of imported oil at Calcutta was even lower. This has been proved by the defendants by reliable evidence. Abdul Majid Osman Hakim, a representative of Tata Oil Mills Co. Ltd. (Agents for the distribution of cocoanut oil imported at Bombay and Calcutta) deposed that the imported (Ceylon) cocoanut oil was being sold at the rate of as. 900 per ton including the cost of drums, ex jetty during the months of June and July 1944. The price of the imported oil was thus actually below Rs. 42 a maund. The oil produced in the country could not be sold at higher than Rs. 42 a maund at Calcutta and in its suburbs. Plaintiffs have made no attempt to prove the cost of production of cocoanut oil produced in the country, They prevented defendants from showing the actual cost of the consignees. It would be just to presume that the evidence about the price at which the consignment was purchased by the consignees (defendant 4) would not have been favourable for it, its cost of production at Calcutta if it was oil produced in the country could not have been higher than the selling price of Rs. 42 a maund which applied to oil both imported and that produced in the country. It must have reasonable margin of profit for both.
The consignment was booked from Budge-Budge. A Calcutta firm were the consigners Badge-Budge has not been shown to be included in the suburbs of Calcutta to which the Notification applied. It is at a distance of about 17 miles from the Sealdah Station of Calcutta. The maximum price of cocoanut oil at Budge. Budge could not be substantially higher than Rs. 42 per maund. The learned Counsel for the appellant defendant contends that in the absence of any evidence from the side of the plaintiffs showing the exact amount that could have been charged under the Ordinance at Guhati, a fair basis for assessing compensation would be afforded by the addition of 20 per cent profit a near equivalent to the maximum price of Rs. 42 a maund at which coconut oil could be sold at Calcutta and in its suburbs. This in any case, he represents, is the highest rate at which compensation may be assessed on the evidence produced by the defendants, We have found above that the highest sum that plaintiffs respondents can claim on their own showing is Rs. 17,500 for the entire consignment if the statement of P. W 3 is relied on. The appellants have not disputed the amount claimed as the price of mixed Badama oil. The sum claimed under this head is Rs. 2,645-12 6p. A sum of Rs. 1,890 is claimed as the price of barrels. This also is not in dispute. The total of these undisputed items cornea to Rs. 4.535-12 6 p. The balance of its. 12,964 3-6 would represent the price of cocoanut oil if plaintiffs are awarded Rs. 17500 as compensation. The total quantity of cocoanut oil was 204 mnds. 4 srs. 5 chattaks. Its price at Rs. 42 a maund would work out to about Rs. 8,572-8-0. If the sum of Rs. 12,964-3-6 is allowed as the price of cocoanut oil, it would represent an addition of about 50 per cent, to the Calcutta price. We regard this addition as excessive. On the other hand, a strict calculation on the basis proposed by the learned Counsel for the appellant also does not seem justified as the consignment was booked from Budge-Budge. Plaintiffs-respondents, in our opinion, would be adequately compensated and sufficient allowance will be made for any higher price than Rs. 42 a maund that the original consignees may have paid by their being allowed an addition of 33 per cent instead of 20 per cent to the maximum price for Calcutta and its suburbs. On this basis the price of cocoanut oil comes to Rs. 11,401. This added to the undisputed items of the claim brings the total to Rs. 15,936. This, in our view, is the highest figure that can be allowed to the plaintiffs by way of compensation on the evidence before us.
I agree with my Lord the Chief Justice that plaintiffs are not entitled to charge interest for the period before suit The case is not covered by the provisions contained in the Interest Act and I do not think interest can be allowed on equitable grounds in the circumstances of this case. The result is that plaintiffs are entitled to a decree for the sum of Rs. 15,936 with costs thereon in both the Courts. They shall have interest at 6 per cent, per annum from the date of the decree till realisation.