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PETITIONER: LOTUS LINE (P) LTD.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 07/01/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SIKRI, S.M.

CITATION:  1965 AIR 1314            1965 SCR  (2) 699

ACT: Damages-Measure  of-whether  party complaining of  wrong  to property  entitled  to  restitution--or  to  restoration  of property damaged to original condition.

HEADNOTE: A  vessel owned by the appellant, caused damage to a  jetty. The  respondent state prepared an estimate of Rs. 16,400  as the  cost of special repairs for the damage done.   Sometime thereafter,   emergent  repairs  costing  Rs.  2783/-   were undertaken  by  the  respondent  state  to  make  the  jetty workable  and  later some minor repairs  costing  about  Rs. 1223/were further carried out.  The appellant having refused to  pay  for the damage done, the respondent state  filed  a suit  claiming  all the three above  mentioned  amounts  and interest thereon. The trial court found that the damage done was  attributable to  the  negligence  of the appellant, but  as  regards  the quantum of damages, it came to the conclusion that the claim for Rs. 16,400/- was really for reconstruction of the  whole damaged  area,  so  that the respondent state  was  in  fact seeking  restitution  and not compensation  for  the  damage done.  The trial court refused to give such restitution  and held  that the expenditure in respect of emergent and  minor repairs  had  put the jetty in working order  and  therefore gave a decree of Rs. 3671/12/6 which was the amount actually spent by the state in making these repairs. In  appeal,  the  High  Court  was  of  the  view  that  the Wednesbury  Corporation’s Case, [1907] 1 K.B. 78, laid  down the  general rule in such cases, which was, to  require  the party in the wrong to make compensation and not restitution; but  that this rule was subject to the exception that  where the  party  complaining  of  a  wrong  to  property  was   a corporation  or a trustee charged with the maintenance of  a highway  or other public work, the wrong-doer was  bound  to make  restitution.   The High Court  therefore  allowed  the appeal modified the decree of the trial court by awarding  a sum of Rs. 19,038/8/- plus interest. HELD:The Wednesbury Corporation’s case did not lay down  the proposition in the form stated by the High Court.  The  true measure of compensation was held in that case to be the cost

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of  restoration.   The person to whom a wrong was  done  was entitled  to  full  compensation  for  restoring  the  thing damaged  to  its original condition, but this did  not  mean complete  reconstruction  irrespective of the  damage  done. [702 B-D, E-F, G] The  evidence  in this case showed that the  amount  of  Rs. 16,400/was needed to carry out necessary repairs to  restore the jetty to its original condition, and not that the amount was for complete reconstruction of the jetty irrespective of the  damage done to it.  As this amount would have  restored the jetty to its original condition, there was no reason  to allow  anything  to  the  respondent  state  on  account  of emergent repairs or for any other expenditure. [703 B-D, G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 810 of 1962. 700 Appeal  from the judgment and decree dated October 1,  1959, of the Bombay High Court in First Appeal No. 697 of 1955. Purushottam  Tricumdas, J. B. Dadachanji, O. C.  Mathur  and Ravinder Narain, for the appellant. T.   V.   R.  Tatachari,  and  R.  N.  Sachthey,   for   the respondent. The Judgment of the Court was delivered by Wanchoo,  J.  This appeal on a certificate  granted  by  the Bombay High Court arises out of a suit brought by the  State of Bombay (respondent) against the appellant for recovery of Rs.  24,979/2/4.  The facts which led to the filing  of  the suit  are not now in dispute as they have been  concurrently found  by the two courts below and may be briefly  narrated. On  April  27,  1948,  at about  midday,  the  vessel  Padam belonging  to the appellant arrived in the  Dharamtar  creek carrying  a cargo of 3500 bags of manure weighing about  250 tons and laid anchor alongside Dharamtar jetty lying on  the Pen  side  of  the  creek  on  the  Pen-Khopoli  road.   The Dharamtar   jetty  is  meant  for  small  vessels   bringing passengers and luggage crossing the creek and so the peon on duty  there requested the master of the ship to  remove  the vessel into the creek and to unload the cargo with the  help of  small  boats.  The master of the ship agreed to  do  so. But  when he tried to move the vessel away from  the  jetty, she  actually came on top of it due t6 the force of the  ebb tide and got stuck there.  The incident was reported by  the peon to his superior officer who directed the peon to inform the  master  to refloat the vessel at night when  there  was high  tide.   The  master  did  so  at  about  3  A.m.   The consequence  of  the  vessel getting on the  jetty  and  the attempt  to  take it off was serious damage  to  the  jetty, which  was broken.  This damage was found on the  next  day, i.e.,  April 28, 1948.  An estimate for special  repairs  of the damage done was prepared soon after and was submitted on May  12, 1948 to the Executive Engineer.  The appellant  was asked by telegram on May 5, 1948 to send a representative in order  that an estimate of the cost of special  repairs  for the damage done might be prepared.  The appellant replied by telegram  that  a representative would be sent  but  no  one appeared  on behalf of the appellant when the  estimate  was prepared.   This estimate was for Rs. 16,400/-.  It  appears that  sometime  thereafter  emergent  repairs  costing   Rs. 2,783/- were undertaken to make the jetty workable.   Later, some  minor repairs costing about Rs. 1,223/-  were  further carried out.  In the meantime the 701

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appellant  was asked again and again to pay for  the  damage done.   The  appellant refused to do so  and  therefore  the State  of  Bombay  filed the suit claiming  the  three  sums mentioned  above for special repairs, emergent  repairs  and minor  repairs  and  also 6 per centum  per  annum  interest thereon. The  trial  court  found  that  the  above  facts  had  been established  by  the  evidence led before it  and  that  the appellant  was liable to make good the loss as it  arose  on account  of  the negligence of the master of the  ship.   It then  came to consider the quantum of damages.  It  came  to the  conclusion that the claim for Rs. 16,400/-  was  really for reconstruction of the whole damaged area and this showed that   the  respondent-State  wanted  restitution  and   not compensation  for the damage done.  It, however, refused  to give  restitution on the ground that it had not been  proved that  special  repairs to the extent of  Rs.  16,400/-  were absolutely  necessary for the damaged portion of the  jetty. The  trial  court also inspected the jetty and  was  of  the opinion  that the emergent and minor repairs that  had  been made had put the jetty in order and traffic was going on  as usual.   Further  it took into account the  statement  of  a witness  that’  a  bridge was  being  constructed  over  the Dharamtar  creek and was likely to be completed  within  two years.   It,  therefore,  finally  gave  a  decree  for  Rs. 3,671/12/6  which  had been actually spent by the  State  in making the repairs.  The rest of the claim was dismissed. This  led to an appeal by the State before the  High  Court, and the only question which the High Court had to decide was the  quantum of damages.  In that connection the High  Court relied  on The Mayor of Wednesbury Corporation v. The  Lodge Holes  Colliery Co. Limited(1) and held that that case  laid down  that the general rule was to require the party in  the wrong  to make compensation and not restitution;  but  there was  an exception to this rule and that exception was  where the  party  complaining  of  a  wrong  to  property  was   a corporation  or a trustee charged with the maintenance of  a highway or other public work.  In such a case the  wrongdoer was  bound  to make restitution because a corporation  or  a trustee who was charged with the maintenance of public works was  bound to restore the property in its or his  possession to  its  original condition.  On this view, the  High  Court allowed  the  appeal and modified the decree  of  the  trial court by awarding Rs. 19,038/8/and interest at 6 per  centum from the date of suit till realisation.  The present  appeal on  a certificate granted by the High Court  challenges  the principle laid down by the High Court, and it is (1) [1907] 1 K. B 78. L4Sup/65-11 702 urged  that  no such principle has been laid  in  Wednesbury Corporation’s  case(1) and that that case was  overruled  in Lodge Hole Colliery Co. Ltd. v. Mayor of Wednesbury ( 2 ) . The  only  question  that  arises  for  decision  before  us therefor  is  the  quantum of damages in a  case  like  this Apart  from the fact that the case relied upon by  the  High Court has been partly overruled in the Lodge Holes  Colliery Co.  Limited’s Case(2) Was have been unable to find  therein the principle which the High Court has deduced from the case of  Wednesbury  Corporation(1).   Learned  counsel  for  the respondent-State is also unable to point out any passage  in the  judgment  of  Cozens-Hardy L.J.  which  lays  down  the proposition  in the form in which the High Court has  stated it.  As we read that case it lays down that the rights of  a corporation in such a case are at least as high as that of a

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private  owner.  with  this  addition  that  a  trustee   or corporation cannot renounce those rights in the same way  as a private owner could.  The true measure of compensation was held  in  that  case  to be the  cost  ,of  restoration  and compensation  must give full restoration.  In that case  the dispute  really  was  whether the road  which  had  subsided should  be  raised  to the same level as it  was  before  or whether  the purpose would be served even though it was  not raised to the same level and a dip was allowed therein.  The Appeal Court held that the Corporation was entitled to  full compensation  for  restoring,  the  road  to  its   original condition.   It  may  be mentioned that this  view  was  not accepted  in  full by the House of Lords.  It  seems  to  us however  that the view taken in  Wednesbury  Corporation’,-, case(1) that a person to whom a wrong is done is entitled to full  compensation  for restoring the thing damaged  to  its original  condition may be accepted as the true  measure  of damages  in a case of this kind.  This applies equally to  a private  person as to a corporation or trustee.   Therefore, the  respondent-State  was entitled to compensation  to  the extent  necessary  to  restore the  jetty  to  its  original condition.   If  this  is  to  be  called  restitution,  the corporation as well as a private person would be entitled to it.   But if by restitution, the High Court  meant  complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is  entitled to complete reconstruction irrespective of the damage done. This  being  the principle, the  respondent-State  would  be entitled  to  such cost as would restore the  jetty  to  its original  condition.   It  is in  that  connection  that  an estimate was submitted for special (1) (1907) 1 K. B. 78. 2. [1908] A. C. 323. 703 repairs  to  the  jetty  as early  as  May  12,  1948.   The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so. There  is  nothing  on the record to show  hat  the  special repairs  to  the  tune  of  Rs.  16,400/were  for   complete reconstruction of the jetty irrespective of the damage  done to  it.   Nothing has been brought out in  the  evidence  of Patel  who prepared the estimate and of the  Sub  Divisional Officer  who supervised it to show that the estimate of  Rs. 16,400/was   for  complete  reconstruction  of   the   jetty irrespective of the damage done.  The covering letter to the estimate  shows that it was an estimate for special  repairs to  the  jetty.   If  the  appellant  neglected  to  send  a representative  to be present to assess the damage  and  the cost  of  repairing it, it cannot now come forward  and  say that the amount of Rs. 16,400/- would not be the proper  sum required for restoring the jetty to its original  condition. All  that  has been brought out in the evidence of  the  two witnesses  referred  to above is that it could not  be  said whether any part of the dismantled material was fit for  re- use; nor were the witnesses able to say what the  dismantled material  would  have fetched if sold.   Barring  these  two matters  all that the evidence shows is that the  amount  of Rs.  16,400/- was needed to carry out the  special  repairs, which  would  have  presumably restored  the  jetty  to  its original condition.  Therefore the respondent-State would be entitled  to this sum of Rs. 16,400/-.  But in view  of  the fact  that some of the material might have been fit for  re- use and some of the material might have been resold and thus fetched  some price, we would deduct the item of Rs.  1,600/ (from   the   total  of  Rs.  16,400/-)  which   refers   to

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"dismantling  the  damaged portion and removing  the  debris outside including sorting materials and stacking the  useful one  to  a  suitable site etc." The  rest  of  the  estimate amounting to Rs. 14,800/- is clearly for restoration of  the jetty  to  its original condition and  the  respondent-State would be entitled to that amount. We may add however that there is no reason to allow anything to  the respondent-State in the shape of  emergent  repairs. It has been shown that Rs. 14,800/- would have restored  the jetty  to  its original condition and that is all  that  the State  is  entitled to have.  How it decided to  spend  that sum, whether at one time or at different times in the  shape of emergent repairs or minor repairs, has no bearing on  the quantum of compensation necessary for restoring the jetty to its  original condition.  For the same reason the fact  that the State might not have spent the whole amount by the  time the trial court came to give its judgment or the fact that 704 a bridge was going up and the jetty might not thereafter  be required has no relevance on the question of damage done  on April  2  1948, though the former may affect the  date  from which  interst may be awarded.  We are therefore of  opinion that  the  respondent-State is entitled to Rs.  14,800/-  as compensation for the damage done to the jetty to put it back in  its  original condition We therefore  partly  allow  the appeal and reduce the amount decreed to Rs. 14,800/-.   This sum  will carry interest at the rate of Rs. 6/-  per  centum from the date of decree of the trial could till  realisation as  ordered  by  the  High Court.   The  appellant  was  pay proportionate costs throughout to the respondent-State. Appeal partly allowed 705