Narasimham, C.J:— This is an appeal from the judgment of the Second Additional Subordinate Judge, Cuttack, decreeing the respondent-plaintiff's suit for recovery of the price of certain goods that were lost in transsit while in the custody of the Railway administration.
2. Twenty bales of cotton yam booked from Ambasamudram in the Southern Railway, for the respondent on 28-11-52, for delivery at Cuttack railway station under R/R No. 60/5 and Invoice No. 8 of that date. When the consignment reached Cuttack it was found that six bales were completely missing and some of the remaining bales appeared to have been tampered with and re-sewn to a size smaller than that of the other bales. The respondent therefore took open delivery on 9-1-53 and note about the missing of six bales and short delivery of some of the remaining bales was made by the Station Master Cuttack Railway Station. The respondent, therefore, claimed damages from the Railway Administration basing his claim on the price of the missing bales of yam and including therein the freight paid and also his profit at 7½ per cent. His total claim came to Rs. 8907-12-0. The main defence of the Railway Admini stration was two fold. Firstly it was urged that the consignment was damaged and some of the bales were looted by a riotous mob at Bezwada Railway Station on 16-12-52 on account of a civil commotion arising out of the death of Potti Sriramulu the well-known Andhra leader. It was therefore urged that the Railway Administration was completely absolved from liability. Secondly, it was urged that the plaintiff was not entitled to damages for loss of profits as no notice of such profits was given to the Railway Administration at the time of delivery of the goods at Ambasamudram Railway Station for consignment to Cuttack Railway Station.
3. A Court can take judicial notice of the fact that in connection with the formation of Andhra Province Potti Sriramulu fasted and eventually died in Madras in consequence of which there were riots and disturbances in several parts of Andhra territory. There is the evidence of the Snbedar of the Railway Protection Force at Bezwada to show that Bezwada railway station was looted by a riotous mob of about 30,000 persons at about 9 a.m on 16-12-52 and that the mob raided and looted away articles from the Railway parcel office and from Railway Wagons standing in the station yard and also in the tranship shed. Though the District Magistrate and the District Superintendent of Police were in the Railway Station they were unable to prevent the looting of goods by the mob. But the railway administration can escape liability only if they can show that the missing bales and the missing bundles (out of the remaining bales) were lost in the course of the said riots and not due to misconduct on the part of the railway staff. For this purpose, the railway has relied on the evidence of some of the members of the station staff at Bezwada on the crucial dates. But as rightly pointed out by the lower Court their evidence is not decisive on this point. Thus D.W 2 Ramachandran stated that wagon No. EICG 2433 (in which the consignment was admittedly loaded) arrived at Bezwada Railway Station on 13-12-52 in good condition with the seals and rivets intact, from Arkonam. Another Railway servant named Avadhanulu (D.W 3) opened the wagon on 14-12-52, unloaded 20 bales of cotton yam booked from Ambasamudram to Cuttack, re-loaded the same in the said wagon along with some other articles and tape-sealed the wagon for onward dispatch. According to this witness this wagon was kept at Bezwada Tranship shed. The evidence of Subedar of the Railway Protection Force—to which I have already referred—undoubtedly shows that the riotous mob looted the articles from the wagons standing not only in the station yard but also in the Tranship shed in Bezwada Railway Station. But this witness also admitted that the mob, after looting, left several articles scattered about in the station area, and after the dispersal of the mob the station staff collected the articles so scattered, put them into empty wagons, rivetted and tape-sealed the said wagons and brought them to the station yard and then kept them in the custody of the Special Armed Force. This witness was not in a position to say whether wagon No. EICG 2433 in which the respondent's consignment was loaded was one of the wagons that were looted by the mob. That wagon was checked by another member of the railway staff B. Raghaba Rao (D.W 4) on 22-12-52 in the Tranship shed and he found the rivets and tape seals intact but on opening the wagon he found 6 bales out of the consignment missing and some of the bales were also damaged.
4. Thus, though the defendant railway administration has conclusively established that the consignment of 20 bales arrived at Bezwada station on 13-12-52 intact and that the bales were found to have been tampered with when they were again checked on 22-12-52. But there is no evidence to show that the wagon in which the suit consignment was kept was looted by the riotous mob on 16-12-52. According to the Subeder the salvaged articles were kept in wagons which were tape-sealed and kept in the station yard, whereas EICG 2433 had been kept in the Tranship shed at Bezwada on 14-12-52 and it was again checked at the same place on 22-12-52 by D.W 4, when the loss was noticed. There is however no evidence to show whether this wagon was also kept in the station yard on 15-12-52 with the other wagons in which the salvaged articles were kept, and if so, how it was found in the Tranship-shed at Bezwada on 22-12-52. D.W 4 does not say that the tape seals which he found in that wagon on 22-12-52 were the same tape seals that had been put by the Railway Administration on 16-12-52, after the dispersal of the riotous mob. According to D.W 2 the tape seals had been put on the same wagon on 14-12-52 and in the absence of further evidence it may as well be inferred that the tape seals found by D.W 4 on 22-12-52 were the same tape seals that were put on 14-12-52 by D.W 3 and not the new tape seals that were put on 16-12-52 after the departure of the mob. There is moreover one circumstance which shows that the consignment in question was not looted by the mob. When the consignment reached Cuttack it was found that some of the smaller sized bales had been cut by sharp instruments and carefully re-sewn. A mob looting articles at a railway station, in a frenzy, would not be so obliging as to restitch bales, after looting some of the bundles inside the bales. This circumstance would therefore lead to a reasonable inference that some of the members of the railway staff, or some other person acting with their connivance, opened the bales, abstracted some of the bundles and then carefully re-stitched the same taking advantage of the fact that the, mob had looted some of the wagons at Bezwada railway station on 16-12-52. There was an interval of nearly six days from 16-12-52 to 22-12-52 during which the wagon remained at Bezwada Railway Station yard (prior to the detection of the loss) and there were ample opportunities, during this interval, for the Railway staff to connive at the abstraction of the bales. The previous looting by the riotous mob apparently provided a golden opportunity for these persons, so that they may escape and put the entire blame on the rioters. I would therefore agree with the learned lower Court that the defendant Railway Administration cannot be absolved from its liability merely because a looting took place at Bezwada Railway Station on 16-12-52. The necessary connecting link to show that the wagon in which the consignment was kept was looted by the mob is wanting in the case.
5. The next question is whether the plaintiff can claim special damages for loss of profits. The law on the subject is very clear. As pointed out in Section 73 of the Indian Contract Act unless it is established that the parties know at the time of making the contract that such loss of profits would arise to the plaintiff due to non-delivery of goods, the claim for damages for loss of profits would not be sustainable. The view was reiterated in G.A Jolli…Plaintiff; v. The Dominion Of India…Defendant., AIR 1949 Cal 380 (at page 389) (in paragraphs 51 and 52) as follows:
“But loss of profits is an ordinary consequence of delay or default, and cannot be recovered unless circumstances are brought to the knowledge of the carrier at or before the date of contract. When the goods are lost and in consequence the plaintiff loses the profits which he could have earned, the value of the lost goods can be recovered, but not any profits in the absence of proper notice.”
6. Here as admittedly no such notice was given when the consignment was booked at Ambasamudram the plaintiff's claim for profits must fail.
7. Mr. Sen for the respondent thereupon contended that some amount may be awarded to him by way of interest from the date of short delivery till the date of commencement of the suit. In B.N Ry. Co., Ltd. v. Ruttanji Ramji, AIR 1938 PC 67 the law on the subject was clearly laid down. Interest prior to the date of commencement of the suit can be awarded only if there is an agreement for payment of interest at a fixed rate or if it is payable by usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest. The provision of the Interest Act have no application here. It is true that in certain circumstances Courts of equity have granted interest by way of damages. But their Lordships of the Privy Council pointed out in the aforesaid case, relying on Section 73 of the Contract Act, that interest by way of damages will not be available unless there was previous notice (see also a recent decision of this Court in Ganaji Sahjun and Co. v. Bherudan Jethmall Ltd. Co., ILR 1960 Cutt 600. Mr. Sen then invited our attention to a recent decision of the Supreme Court reported in Mahabir Prasad v. Durga Datta, 1962 SCD 291 : (AIR 1961 SC 990). But there their Lordships have merely referred to the aforesaid Privy Council decision and have not made any departure from the law laid down therein. In my opinion therefore the claim for profits whether it be called profit or interest, must fail. But the respondent is entitled to interest at 6 per cent per annum from the date of institution of the suit till the date of payment.
8. For the aforesaid reasons while substantially affirming the judgment of the learned Subordinate Judge in the suit under appeal (Money Suit No. 58 of 1952) I would disallow the claim of Rs. 599-3-0 (item (D) of the schedule attached to the plaint) representing the plaintiff's profits. But the plaintiff shall be entitled to interest at 6 per cent per annum from the date of the suit till the date of payment (on the net amount decreed by the lower Court less the sum of Rs. 599-3-0).
9. Both parties will bear their own costs of this appeal. But the lower Courts's order for costs will remain.
10. R.K Das, J.:— I agree.
HF/S/V.B.B
11. Order accordingly.