J.M. Srivastava, J.
1. This appeal by the Union of India through the General Manager, N. F. Railway arises in the following circumstances.
2. The plaintiff respondent on 27-9-67 booked a consignment of artificial silk ready made garments in three packages at Sealdah on the Eastern Railway for carriage to Tangla on the N. F. Railway. The consignment was not delivered. The plaintiff suffered loss of Rs. 24,760.15 P. The plaintiff served notice and filed the suit on 3-6-69. The appellant defendants resisted the claim inter alia on the ground that the consignment comprised of 'silk' of a value of more than Rs. 500/-, but was not so declared and the required percentage under Section 77B of the Indian Railways Act (hereinafter the Act) was not paid and hence the defendants were not liable and that the plaintiff was not entitled to compensation for loss of profits.
3. The following issues were framed : --
1. Whether the suit is maintainable in its present form?
2. Whether the plaintiff has right to sue and also cause of action for the suit?
3. Whether the suit is barred by limitation?
4. Whether this Court has jurisdiction to try the suit?
5. Whether the valid and proper statutory notices were served on the defendants?
6. Whether the consignment was not delivered due to the negligence or misconduct on the part of Rly. administration?
7. Whether the suit consignment contains the readymade garments and if so, what is the actual value of the same?
8. Whether the defendant is liable to pay any compensation to the plaintiff, and it so, what?
9. Relief.
The trial Court by judgment dated 20-11-76 decided all the issues in favour of the plaintiff and decreed the .suit.
4. Aggrieved, the defendants have come in appeal and Shri P. P. Duarah learned counsel appearing on their behalf has argued that the plaintiff respondent not having made the declaration Under Section 77B of the Act and not paid the percentage could not claim any relief and that the defendant in any case was not entitled to compensation for business loss.
5. The plaintiff respondent filed a cross objection claiming pendent elite interest but the respondent however was not represented at the time of hearing.
6. I have considered the submission of Shri Duara, Learned eousncl for the appellant. The two questions which require consideration are firstly whether the readymade garments were 'silk' within the meaning of item T of Schedule II under Section 77B of the Act and secondly whether the plaintiff respondent could be allowed compensation for loss of business.
7. So far the first question is concerned Section 77B of the Act reads as under :
'77-B. (1) Notwithstanding anything contained in the provisions of this Chapter, when any articles mentioned in the Second Schedule are contained in any parcel or package delivered to a railway administration to be carried by railway and the value of such articles in the parcel or package exceeds five hundred rupees, the railway administration shall not be responsible for the loss, destruction, damage or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared in writing or declared them in writing at the time of the delivery of the parcel or the package for carriage by railway, and if so required by the administration, paid or engaged to pay in writing a percentage on the value so declared by way of compensation for the increased risk.
(2) When any parcel or package of which the value has been declared under Sub-section (1) has been lost, destroyed, or damaged or has deteriorated, decompensation, recoverable in respect of such loss, destruction, damage or deterioration shall not exceed the value so declared. '
(3) A railway administration may make it a condition of carrying a parcel or package declared to contain any article mentioned in the Second Schedule that a railway servant authorized in this behalf has been satisfied by examination or otherwise that the parcel or package actually contains the article declared lo be therein.
(4) The Central Government may, by notification in the official Gazette, direct that any article mentioned in the Second Schedule may, without being contained in any parcel or package, be delivered to a railway administration to be carried by railway and upon the issue of such notification, the provisions of this section shall apply in relation to such article as they apply in relation to any article mentioned in the Second Schedule and contained in any parcel or package.'
Item T of Second Schedule threunder provides :
'(1) silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials.'
8. Shri P. P. Duarah, learned counsel for the appellant has strenuously urged that the consignment as shown from the cash memos filed Ext. 2(i) to 2(19) in particular Ext. 2(2), Ext. 2(3), Ext. 2(6) and a few others, comprised of artificial silk and was of a value of more than Rs. 500/- and was thus 'silk' which required declaration to that effect and payment of percentage.
9. Shri Duarah has cited Deepchand Kherajmal v. Union of India, AIR 1979 Mad 88 where the question whether Nylon art silk goods were 'silk goods' was raised, but was not answered in view of the amendment in the schedule separately listing Nylon goods as also requiring to be declared. This authority is of no assistance to the appellants.
10. On careful consideration of the
submission I am unable to accept the contention of Shri Duarah. 'Artificial silk' as the word 'artificial' itself indicates as not 'silk' as contemplated in item '1' of IInd Schdeule referred to above. It may be noted that the provision has been made for costly 'goods' booked for carriage by Railway obviously for exercise of greater care by Railway authorities and for the purpose required declaration in case of value of more than Rs. 500/ and for payment of percentage a little more charge for ensuring greater care during transportation. 'Silk' in this context lo my mind should mean 'Silk' as generally understood and should not include any thing which is not silk but is just called artificial silk may be for business consideration to attract customers or because it looks or feels soft like silk.
11. It is well known that 'Silk' is expensive and is a product made by 'Silk Worm' which in that state is generally called 'Cocoon'. Softness durability and other characteristics make it a high quality material used for various purposes generally wearing apparel. In Chambers 20th Century Dictionary Ned Edition 1983 Silk means a fibre produced by larva of a 'silk worm moth' mainly of fibric coated with sericin formed by the hardening of a liquid emitted from spinning gland. 'Artificial Silk' in my opinion therefore cannot be considered 'Silk' for the purpose under consideration.
12. In the Madras case cited the question was noted. But was not decided in view of the amendment made in the Schedule to include 'Terelyne' etc. separately. It may, however, be noted that 'Terelyne' etc. are quite expensive and the very fact that it was separately listed in Schedule II by amendment shows that it could not be covered by item '1' of II Schedule to the Act.
13. In the instant case as Ex. 2(6) shows the readymade garments though called Decron 'Tapata Silk' 'Aksel Silk' etc. were not quite expensive six Decron Shirt @ Rs. 15 to Rs. 39 each six Tapata Silk Shirts @ Rs. 10 to Rs. 33 each, six Aksel Silk shirts at Rs. 20 to Rs. 35/- each I am therefore of the opinion that it is only 'Silk' and not artificial Silk that would attract the provisions of Section 77-B of the
Act. The consignment in suit therefore did not require any declaration or payment of percentage and the Railway were liable for the loss due to non-delivery of consignment.
14. As regards the next question the plaintiff claimed Rs. 2246.38 as business loss. The trial Court has allowed the same. As PW 1 Harimohan Ghosh plaintiff said that had he received the goods he would have made a profit of 15 to 20 per cent. There is nothing to show on record that the plaintiff had intimated to the Railway at the time of booking of the goods that he was sending the goods for the purpose of business and in case it was not delivered he would lose profits which he expected to make. It is a well settled principle in law relating to compensation for breach of contract in such cases that the aggrieved party is entitled to compensation, equivalent to the value of the goods and not to the profits which he expected to obtain.
15. Section 73 of the Contract Act, 1872 reads as under:
'73. Compensation for loss or damage caused by breach of contract.-- When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract- When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.-- In estimating the loss or damage arising from a breach of contract,
the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.'
16. The loss of profit is not loss or damages which naturally arose in the usual course of things from the breach. In a case of nondelivery of goods such loss would be just the value of goods and the like but not damages due to the loss of profits. The plaintiff could be entitled to damages due to loss of business if he had made known to the Railway when the goods were booked that such loss was likely to result from the breach of it. As said before there is no such evidence for the plaintiff on record. The claim for loss of business was therefore erroneously allowed.
17. As regards the cross objection no one appeared to press it and the same is liable to be rejected.
18. The appeal is partly allowed only to the extent that the plaintiffs claim of Rs. 2246.38 as compensation for loss of business is dismissed. The rest of the appeal and the cross objection too are dismissed. Parties to bear their own costs of the appeal.