JUDGMENT
Nesargi, J.
1. The first defendant in 0. S. 96/82 on the file of the Civil Judge, Bhadravathi, has preferred this appeal against the judgment and decree dated 11-9-1984 decreeing the suit of respondent I plaintiff.
2. The plaintiff filed the suit for a decree in a sum of Rs. 19,922.35p. as principal amount plus interest from 25-6-1975 at 21% on the said amount up to the date of filing of the suit viz., 2-8-1978 by way of damages on the ground that the amount had been wrongfully withheld by defendant 1, up to 1-8-1978.
3. The trial Court has passed the decree in favour of the plaintiff for a sum of Rs. 27,489.95p and has further directed that future interest to be paid at the rate of 12 per cent per annum on the principal amount of Rs. 19,922.35P. from the date of suit till the date of realisation. It is further seen that the trial Court has not awarded interest at 21 % as claimed by the plaintiff but had -cut it out to 12%.
4. The undisputed facts are that on the plaintiff-Company placing an order for the supply of galvanised mild steel continuous well tubes of the seizes with defendant 2 (respondent 2), defendant 2 despatched one-wagon on 25-6-1975 under a railway receipt. They were booked to Bhadravathi for delivery to the plaintiff. After the consignment reached Bhadravathi, open delivery was taken by the plaintiff on 26-7-75. It was found that out of the three items consigned to the Railway for delivery to the plaintiff, the first item was short by 56 in number and the third time was short by IM numbers. A delivery certificate was furnished to the plaintiff as per Ex. P. 1. Correspondence went on and ultimately on 8-8-1975 the plaintiff-Company lodged claim with defendant 1 (appellant) for making good the loss caused to it. As the same was not made good, the suit was filed.
4A. The rate at which the loss caused was valued is not in dispute. The claim of Rs. 19,922.35p. includes freight charges and Departmental fees, etc. We have no hesitation in concluding that the trial Court ought not to have included the freight charges and Departmental fees in its decree in regard to the value of the goods lost. When that amount is deducted, the value of the goods actually lost comes to Rs. 19,113.72p.
5. The contention of defendant 1 was that the plaintiff was in arrears of heavy amount of freight wharfage, etc., to defendant I and therefore, defendant I decided to adjust this claim of the plaintiff and it also adjusted claim of Rs. 11,741/- as against what was put forth by the plaintiff and accordingly informed the plaintiff by its letter dated 4-6-1977.
6. The documentary evidence relied upon by the plaintiff shows that the goods actually consigned for delivery to the plaintiff by defendant 2 were in accordance with the order placed by the plaintiff and marked at Ex. P.5. The relevant bill is at Ex. P.8. Ex. P. I satisfactorily establishes that the items referred to in Ex. P. 5 are-the ones consigned and at the time of delivery item No. I was short of 56 in number and item No. 3 was short of 134 in number. Therefore, we further conclude that the value of the goods lost by the plaintiff is actually Rs. 19,113.72p.
7. The other contention of defendant 1 appellant is that the plaintiff is not entitled to any interest as claimed by it, because in law he is entitled to be compensated or reimbursed for loss sustained by it. In this connection, it is to be noted that the trial Court awarded interest to the plaintiff on the amount of Rs.119, 922.35P. from the date of booking viz., 25-6- 1975 till the date of suit i.e. 2-8-1978.
8. The loss sustained by the plaintiff has been proved to have occurred on 26-7-75 the date on which open delivery was taken and the certificate (Ex. P. 1) was issued to it. If at all the plaintiff is entitled to claim interest, it should be from 26-7-75 till the date of suit and also current and future interest. This takes us to the question as to whether the plaintiff is entitled to claim interest on this amount of Rs. 19,113.72P from 26-7-75 till 2-8-78.
9. Section 76, Railways Act, 1890, (hereinafter referred to as the Act) reads as follows:
“A railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have -been caused by delay or detention in their carriage unless the ‘ railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway’ administration or of any of its servants.”
10. Section 78 of the Act provides for exoneration of responsibility in certain cases. It reads as follows:
“Exoneration from responsibility in certain cases – Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible-
(a) for the loss, destruction, damage, deterioration or non-delivery of any goods with respect to the description of which an account materially false has been delivered under sub-s. (1) of S. 58.if the loss, destruction, damage, deterioration or non-delivery is, in any way, brought about by the false account, nor in any case for an amount exceeding the value of the goods if such value were calculated in accordance with the description contained in the false account; or
(b) for the loss, destruction, damage, deterioration or non-delivery of animals or goods in cases where there has been fraud practised by the consignor or the consignee or an agent of the consignor or the consignee; or
(c) for the loss, destruction, damage, deterioration or non-delivery of animals or goods proved by, the railway administration to have been caused by or to have arisen from-
(i) improper loading or unloading by the consignor or the consignee or by an agent of the consignor or the consignee, or
(ii) riot, civil commotion, strike, lock-out, stoppage or restraint of labour from whatever cause, whether partial or general; or
(d) for any indirect or consequential damages or for loss of particular market.”
A perusal of the aforementioned para, makes clear that the plaintiff is entitled to claim more than that in view of the provisions of; S. 78 of the Act. Therefore, what requires to .be determined is what is the ‘loss’ sustained by the plaintiff. It is no doubt true that the plaintiff has claimed not only the actual loss of Rs. 19,922.35P. which we have brought down to Rs. 19,113.72P. but also interest at 21 % from 25-&75 up to the date of suit i.e., I8-78 by way of damages op the ground that the amount had been wrongfully withheld by defendant 1. In our opinion, the wording of this relief claimed by the plaintiff does not matter much but the substance of the relief that should be taken into consideration while determining whether this substance falls within the ambit of the word ‘loss’ appearing in S.76 of the Act.
11. The Supreme Court has in Union of India v. The Steel Stock Holders Syndicate, Poona, in regard to the wordings used in S. 76 of the Act laid down as follows:
“The words used in S. 76 of the new Act, namely, loss, destruction, damage or deterioration must be read as ejusdem generis so as to indicate the actual and physical loss or change in the goods contemplated by S.76 ………………………..
Section 76 has a very limited scope. It Contemplates those cases which fall within the contingencies contemplated by the section. These contingencies refer to actual and physical loss, destruction, damage, or deterioration of goods. In such a case the plaintiff can claim only the actual loss in the value of the goods caused by destruction, damage or deterioration and not loss of profit. S. 78(d) which flows out of S. 76 clearly provides that the railway administration shall not be responsible for any indirect or consequential damages or for loss of particular market. In fact, S. 78(d) .1nerely incorporated, measure of damages as contemplated by S. 73
12. The facts in the said case were that after the consignment was consigned to the Railways for transportation, the delivery by the Railways took place after a long delay. The plaintiff claimed certain amount as loss or damages. He quantified the damages by calculating the same on the basis of 12% interest on the locked up capital for the period of undue delay. The Supreme Court held that what has been claimed by the plaintiff by way of interest or damages is not damages but interest had bee n used as a measure to determine the compensation which the plaintiff could seek against the defendant for its negligence in causing inordinate delay in the delivery of goods. The decision of the Supreme Court in Union of India v. The West Punjab Factories Ltd., has been considered.
13. Shri H. G. Balakrishna, learned Standing Counsel for the Southern Railways, argued that the facts in Union of India v. The West Punjab Factories Ltd., squarely apply to the facts of this case at least so far as the principle of law that governs such circumstances. He pointed out that in the said case the goods consigned to the Railways had been stored at the Station platform and damage was caused because of fire to the goods. A suit was filed for Rs. 77,000/- and odd along with interest up to the date of the suit and interest pendent lite and future interest. The claim was based on the fact that the goods had been entrusted to the custody and possession of the Railways. The claim of Rs. 72,000/- was made on the basis that that was the damage sustained by the owner-plaintiff.
14. We find from the said decision that the Supreme Court relying on the earlier decision of the Supreme Court which in turn relied on AIR 1938 PC 67, for awarding of interest, has held as follows:
“In the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest, interest by way of damages cannot be awarded. No interest could thus be awarded for the period up to the date of the suit, even on equitable grounds.”
15. The aforesaid decision has not been referred to in . But, we find that the aforesaid decision has sought the support on the principle of law laid down in which has been considered in .
16. We have already shown that what the owner is entitled to, in view of the provisions of S. 76 of the Act, is the ‘loss’ caused to him. Whether that ‘loss’ is termed as compensation or damage to be awarded to the owner becomes in our considered opinion inconsequential. The loss caused to the owner and the damages awardable to the owner ought not to be subject to the exceptions in S. 78 of the Act. Therefore, it is the actual loss that has been caused to the owner and that the owner is entitled to recover the damages from the Railways. It cannot be gainsaid that the ‘actual loss’ has to be the value of the goods lost. That value has to be the market value of the goods on the date, of loss. This aspect also is clearly laid down by the Supreme Court in the decision in . The question is whether apart from this kind of loss the plaintiff would be entitled to anything more that would fall within the category of loss as contemplated under S. 76 read with S. 78 of the Act.
17. The reasoning in the decision in is that as there was undue delay caused by the Railways in delivering the consignment to the owner viz., the plaintiff, the capital of the plaintiff remained locked up for that period of delay and therefore the loss was caused to him. Such a reasoning and the principle flowing from it does not appear to have been placed for consideration by the Supreme Court in any of the earlier cases, two of which have already been referred to by us. In a case where there is no delivery of the whole of the consignment to the owner, the owner would necessarily lose that consignment or the value of the same. If the value is not paid to him on demand made by him as per the provisions of the Act, that amount which represents his capital would not be available to him until he secures the decree for the same and actual recoveries under a decree. Therefore, we conclude that capital of the owner must be regarded as having been locked up. When that is so, the reasoning and the principle found in has to apply and such an amount has to be included in the actual loss caused to the owner namely, the plaintiff. When that is so, it will have to be added to the actual loss caused to him which is quantified on the material value of the goods lost as on the date of loss.
18. Applying the principle narrated by us in the preceding paras, we come to the conclusion that the value of the goods lost by the plaintiff by calculating the same on the basis of the value of the goods lost as on 26-775 is Rs. 19,113.72P. He would not be entitled to any further amount as on that date because he made his claim on 8-8-75 as is required by’ the provisions of the Act. He cannot be permitted to contend that his capital was locked up during the period between 26-7-75 and 8-75. The principle afore stated would apply in his favour from the date 8-8-75 and up to the date of suit which he has in his plaint made out as 1-8-1978. To quantify this loss, he would be entitled to the interest at 12% on a sum of Rs.19, 113.72P. It goes without saying and it is also not seriously disputed before us that he is entitled to that amount of interest from the date of suit till the date of realisation particularly in view of the provisions of S. 34, Civil P.C. as amended by Act 104 of 1976 which has come into force from 1-2-1977 and also the rate of interest levied by any of the Nationalised Banks. It is to this extent, the decree passed by the trial Court has to be modified.
19. In the result, we dismiss this appeal subject to the modification as stated above. No order as to costs.
20. Order accordingly.