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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: WEST PUNJAB FACTORIES LTD.

DATE OF JUDGMENT: 24/08/1965

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

CITATION:  1966 AIR  395            1966 SCR  (1) 580

ACT: Indian  Railways Act, s. 72-Responsibility of  railways  for loss  of  goods  -Whether continues of  delivery  not  taken within  three  days  of reaching  destination,  after  which demurrage  is  payable under the rules-  Maintainability  of suit  for  damages  by  consignor of  goods  when  risk  not transferred to consignee-Damages whether payable at contract rate  or market rate-Interest whether payable on  amount  of damages for period before date of suit.

HEADNOTE: There  was  a  fire at a railway station  in  which  certain goods& were destroyed.  Two suits were filed claiming damage for  loss  of goods by ’the said fire.  The first  suit  was filed by a factory which claimed to be owner of the goods as consignor.  The other suit was filed by a consignee in whose favour  the relevant documents were endorsed.  The Union  of India resisted both the suits.  The trial court and the High Court  concurrently  held  that  the loss  was  due  to  the negligence of the Railways.  The1 Union of India appealed to this Court. It was contended on behalf of the appellant : (1) The suits, as  filed,  were  not maintainable. (2)  In  the  first-suit delivery of the goods had been made to the consignee and the High Court’s finding to the contrary was wrong. (3)  Damages should  have been awarded at the contract rat-. and not  the market rate (4) Interest could not be awarded for the period before the suit on the amount of damages decreed. (5) In the second suit notice had been given to the consignee that  the consignment had arrived on February 23, 1943.  The consignee did not come to remove the goods till March 8, 1943 when the fire   broke   out,  and  the  liability  of   the   railway administration  ceased  after the lapse of  reasonable  time after   arrival   of   the  consignment   at   the   railway administration. HELD:     (i)  A railway receipt is a document of  title  to goods covered by it, but from that alone it does not follow, where  the consignor and consignee are different,  that  the consignee  is  necessarily the owner of the  goods  and  the

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consignor  in such circumstances can never he the  owner  of the goods.  It is quite possible for the consignor to retain title  in the goods himself while the consignment is  booked in the name of another person.  In the first of the  present suits the risk remained with the consignor according to  the agreement  of the parties, and it had not been  proved  that the  consignor  had parted with the property in  the  goods. Therefore the suit by he consignor was maintainable. [586 D- H] In  the second suit the railway receipt was endorsed in  the consignees  favour  and the courts  below  had  concurrently found that the consignee was the owner of the goods.   There could  therefore be no dispute about the maintainability  of the second suit also. [588 D] (ii) Though  there was a token delivery to the consignee  in the  first suit as appeared from the fact that  the  railway receipt had been sur- 581 rendered and the delivery book had been signed, there was no redelivery  by the railway to the consignee.  The goods  had not  been  unloaded  and were still under  the  control  and custody  of  the railway and the evidence of  the  Assistant Goods  Clerk was that his permission had still to  be  taken before the goods could be actually removed by the consignee. The contention in the first suit that the delivery had  been made to the consignee before March 8, 1943 therefore, in the peculiar circumstances of the case had to fail. [590 C-D] (iii)  The High Court rightly calculated the damages on  the basis  of the  on March 8 as it is well settled that  it  is the  market  price at lest be damage occurred which  is  the measure of the damages to be awarded.   [590 E-F] (iv) In the    absence of any usage or contract, express  or implied, or of any provision of law to justify the award  of interest  it  is not possible to award interest  by  way  of damages  and therefore no interest should have been  awarded in the present two suits up to the date of filing of  either suit. [591 A] Bengal  Nagpur Railway Co. Ltd. v. Ruttanji Rant, & Ors.  65 I.A. 66, Seth Thawardas Pherumal v. Union of India [1955]  2 S.C.R.  48,  Union of India v, A. L. Rallia  Ram,  [1964]  3 S.C.R.  164 and Union of   India V. Watkins Mayer &  Co.  C. As.  Nos. 43 and 44 of 1963 dt. 10-3-65, relied    on. (v)  Under   s.   72  of  the  Indian  Railways   Act,   the responsibility of the railway administration  for the  loss, 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 ss.  151,  152  and 161 of the  Indian  Contract  Act.   The responsibility continues until terminated in accordance with sq. 55 and 56 of the Railways Act. [591 E] It may be that under the Rules framed by the Railways  goods are kept at the railway station of destination only for  one month, and that demurrage has to be paid after three days of reaching  the  destination.  But the responsibility  of  the railway  is  under s. 72 of the Indian Railways Act  and  it cannot  be cut down by any rule.  Even if owing to the  said Rules  the responsibility of the railway as a  carrier  ends within a reasonable time after the goods have reached  their destination-station,  its responsibility as  a  warehouseman continues  and that responsibility L. the same at that of  a bailee. [592 E-H] Chapman v. The Great Western Railway Company, (1880)5 Q.B.D. 278, distinguished. In  the  present  case the consignee (in  the  second  suit)

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claimed  the  goods  well within the  period  of  one  month mentioned in the rules.  The fact that he was liable to  pay demurrage  because  he did not take delivery  of  the  goods within three days did not relieve the railway of its respon- sibility as warehouseman.  As it had been concurrently found by  the courts below that there had been negligence  by  the railway within the meaning of ss. 151 and 152 of the  Indian Contract Act, the railway war, liable to make good the  loss caused by the fire. [593 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 601 and 602 of 1963. Appeals from the judgment and decree dated December 9, 1958, of  the  Allahabad High Court in First Appeals Nos.  373  of 1945 and 92 of 1946. 582 Civil Appeal No. 603 of 1963. Appeal  by special leave from the judgment and decree  dated December 9, 1958 of the Allahabad High Court in First Appeal No. 374 of 1945. N.  D. Karkhanis and R. N. Sachthey, for the  appellant  (in all the   three appeals). G.  S. Pathak, Rameswar Nath, S. N. Andley and P. I.  Vohra, for  the respondents (in all the three appeals). The Judgment of the Court was delivered by. Wanchoo,  J. These three appeals raise common questions  and will  be dealt with together.  They arise out of  two  suits filed  against the Government of India claiming damages  for loss  of goods which were destroyed by fire on  the  railway platform  at Morar Road Railway Station.  One of  the  suits was  filed by Birla Cotton Factory Limited, now  represented by  the West Punjab Factories Limited (hereinafter  referred to  as  the  Factory).  It related to  six  consignments  of cotton  bales booked from six stations on various  dates  in February and March 1943 by the Factory to Morar Road Railway Station.   In  five of the cases, the consignment  was  con- Signed to J. C. Mills while in one it was consigned to self. The  consignments arrived at Morar Road Railway Station  or. various  dates in March Delivery was given of a part of  one consignment on March 7, 1943 while the remaining goods  were still  in  the custody and possession of  the  railway.   On March  8, 1943, a fire broke out at the Morar  Road  Railway Station and these goods were involved in the fire and severe damage was caused to them.  It is not necessary to refer  to the details of the damage for that matter is not in  dispute between  the parties.  The case of the Factory was that  the damage  and  loss  was caused while the goods  were  in  the custody and control of the railway administration and it was due  to misconduct, negligence and carelessness on the  part of  the railway administration.  Consequently, the suit  was filed  for Rs. 77,000 and odd along with interest  upto  the date  of  the  suit and interest pendente  lite  and  future interest. In  the other suit there was one consignment of 45 bales  of cotton yarn.  This consignment was booked from Belangunj  to Morar  Road  Railway Station on February 22,  1943  and  the railway receipt relating to this consignment was endorsed in favour  of  Ishwara Nand Sarswat who filed the  suit.   This consignment arrived at 583 Morar  Road Railway Station on February 23,  1943.   Ishwara Nand  Sarswat went to take delivery of this  consignment  on

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March  10,  1943, his case being that be  had  received  the railway receipt on March 9, 1943.  He then came to know that the consignment was involved in a fire which had taken place on  March  8, 1943 and severe damage had been  done  to  the consignment.  Ishwara Nand Sarswat therefore filed the  suit on  the ground that damage and loss was due entirely to  the gross-negligence of the railway administration.  He  claimed Rs.  72,000,/- and odd as damages and also claimed  interest upto  the  date  of the suit and pendente  lite  and  future interest. The suits were resisted by the Government of India.  In  the first  suit by the Factory, it was pleaded that the  Factory could  not  sue as-, the goods in five of the  receipts  had been consigned to the J. C. Mills; secondly, it was  pleaded that  delivery  had  been  given  of  atleast  five  of  the consignments to the J.C. Mills before the fire broke out and the railway administration was not therefore responsible for the damage done by the fire, for it was the fault of the  J. C.  Mills not to have removed the - goods immediately  after the  delivery; thirdly, it was pleaded that  damages  should have  been granted at the rate of Rs. 38/- per  bale,  which was  the  price  contracted for between the  buyer  and  the seller and not at the market rate on the date of the  damage as  was done by the courts below-, fourthly, it was  pleaded that  no  interest should have been allowed for  the  period before the suit; and lastly, it was pleaded that the conduct of the railway administration was not -negligent and  there- fore the railway was not bound to make good the loss. On  these pleas, five main issues relating to each  of  them were framed by the trial court.  The trial court found  that the Factory could maintain the suit and decided accordingly. It  also found that in the case of five consignments by  the Factory,  delivery had been given before the fire broke  Out and  therefore the railway was not responsible; in the  case of  the  sixth consignment it held that there was  no  proof that  delivery bad been given before the fire broke out  and that  the  railway would be responsible  if  negligence  was proved.   On  the quantum of damages, the trial  court  held that the damages had to be calculated at the market price on the  date of the fire and not at the contract price  between the  buyer  and seller.  On the question  of  interest,  the trial  court held that interest before the date of the  suit should  be allowed on equitable ,-rounds.  Finally,  on  the question of negligence, the trial court held that there  was negligence  by the railway and it was therefore  liable  for loss  and  damage  caused by the fire  which  broke  out  on L7Sup./65-9 584 March  8, 1943.  As however, the trial court had  held  that delivery  had been given in the case of  five  consignments, though  the goods had not been removed, the railway was  not responsible for the loss.  It therefore decreed the suit  in part  with respect to the sixth consignment about  which  it had found that there had been no delivery. The  same  issues were raised in the suit  by  Ishwara  Nand Saraswat.   But there was one additional issue in that  suit based  on the contention of the Government of India that  it had  given notice to Ishwara Nand that the  consignment  had arrived  on February 23, 1943, Ishwara Nand however did  not come  to remove the goods till March 8, 1943 when  the  fire broke out; therefore it was urged that the liability of  the railway administration as carrier had ceased after the lapse of  reasonable time after arrival of the consignment at  the railway  station.  This reasonable time could not be  beyond three   days   in  any  case  and  therefore   the   railway

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administration  was not bound to make good the loss even  if it  had been occasioned on account of the negligence of  the administration.   As  Ishwara Nand should have  removed  the consignment  within  three days of February 23, it  was  his failure to do so which resulted in the damage and loss.  The issues  which were common to this suit and the suit  by  the Factory were decided on the same lines by the trial court as in  the  suit by the Factory.  On the  further  issue  which arose  in this suit as to the delay in the removal of  goods after  notice  to Ishwara Nand, the trial court  held  after reference   to   certain   rules   made   by   the   railway administration  that  even if the  railway  administration’s responsibility  as  carrier had ceased after  the  lapse  of reasonable time, it was still liable as a bailee either as a warehouseman or as a gratuitous bailee.  It therefore gave a decree for Rs. 76,000 and odd to Ishwara Nand. Then  followed  three appeals to the High Court two  in  the suit  by  the Factory and one in the suit of  Ishwara  Nand. The appeal in the suit by Ishwara Nand was by the Government of  India; one appeal in the suit by the Factory was by  the factory  with  respect to that part of the claim  which  had been dismissed, and the case of the Factory was that in fact no  delivery had been made to it and it was entitled to  the entire sum claimed as damages.  The other appeal was by  the Government  of India with respect to the amount  decreed  by the trial court and it raised all the contentions which  had been raised before the trial court. The  High Court dealt with the three appeals  together.   In all  appeals  the High Court confirmed the  finding  of  the trial  court that there had been negligence on the  part  of the railway which 585 resulted  in damage to the goods.  On the  question  whether the  suit  could be maintained by the plaintiffs,  the  High Court affirmed the finding of the trial court that both  the suits  were maintainable.  The High Court also affirmed  the finding of the trial court with respect to the rate at which damages should be calculated and on the question of interest before the date of the suit.  Further in the suit by Ishwara Nand,  the  High  Court  held  that  even  if  the   railway administration ceased to be responsible as a carrier after a reasonable  time had elapsed after the arrival of the  goods at Morar Road Railway Station, it was still responsible as a warehouseman.   The  appeal therefore of the  Government  of India in Ishwara Nand’s suit was dismissed.  On the question of  delivery in the Factory’& suit the High Court  disagreed with  the  finding of the trial court that  there  had  been delivery  of five consignments.  It held that there  was  no effective  delivery  even of these  five  consignments.   In consequence,  the  appeal of the Factory was  allowed  while that of the Government of India was dismissed. Then  followed applications to the High Court for  leave  to appeal to this Court in the Factory’s suit.  ’Me High  Court granted the certificate as the judgment was one of  variance and  the  amount involved was over rupees  twenty  thousand. However, in the suit of Ishwara Nand, the High Court refused to grant a certificate as the judgment was one of affirmance and  no  substantial question of law arose.   Thereupon  the Government of India applied to this Court for special  leave in  Ishwara  Nand’s suit and that was  granted.   The  three appeals have been consolidated in this Court for as will  be seen from what we have said above, the principal points  in- volved in them are common. Learned  counsel  for the appellant has not  and  could  not challenge  the concurrent finding of the trial court and  of

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the High Court that the fire which caused the damage was due to  the negligence of the railway administration.   But  the learned counsel has pressed the other four points which were raised in the courts below.  He contends-(i) that the  suits as filed were not maintainable, (ii) that the High Court was in  error in reversing the finding of the trial  court  that the  delivery  had been given with respect to  five  of  the consignments  in  the  Factory’s suit,  (iii)  that  damages should have been awarded at Rs. 38/- per bale which was  the contract  price between the buyer and seller and not at  the market price on the date on which the damage took place, and (iv)  that  interest  could not be awarded  for  the  period before the suit on the amount of damages decreed. 586 Re. (i). The contention of the appellant with respect to five of  the consignments  in  the suit of the Factory was  that  as  the consignee  of the five railway receipts was the J.C.  Mills, the consignor (namely, the Factory) could not bring the suit with respect thereto and only the J.C. Mills could  maintain the  suit.  Ordinarily, it is the consignor who can  sue  if there  is  damage to the consignment, for  the  contract  of carriage   is   between  the  consignor  and   the   railway administration.  Where the property in the goods carried has passed  from  the  consignor to  some-one-else,  that  other person  may  be  able to sue.  Whether in such  a  case  the consignor  can also sue does not arise on the facts  in  the present case and as to that we say nothing.  The argument on behalf  of  the appellant is that the railway receipt  is  a document of title to goods [see S. 2(4)] of the Indian  Sale of  Goods  Act,  No.  3 of 1930), and  as  such  it  is  the consignee who has title to the goods where the consignor and consignee are different.  It is true that a railway  receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and  consignee are  different, that the consignee is necessarily the  owner of  goods and the consignor in such circumstances can  never be the owner of the goods.  The mere fact that the consignee is  different from the consignor does not  necessarily  pass title to the goods from the consignor to the consignee,  and the  question  whether  title to goods  has  passed  to  the consignee will have to be decided on other evidence.  It  is quite  possible  for the consignor to retain  title  in  the goods,  himself while the consignment is booked in the  name of  another person.  Take a simple case where a  consignment is  booked  by the owner and the consignee  is  the  owner’s servant,  the  intention being that the  servant  will  take delivery  at the place of destination.  In such a  case  the title  to  the goods would not pass from the  owner  to  the consignee  and  would  still remain.  with  the  owner,  the consignee  being merely a servant or agent of the  owner  or consignor  for purposes of taking delivery at the  place  of destination.  It cannot therefore be accepted simply because a  consignee  in  a  railway receipt  is  different  from  a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor.  As we have  said already, ordinarily, the consignor is the  person who  has  contracted with the railway for  the  carriage  of goods  and  he can sue; and it is only where  title  to  the goods  has  passed that the consignee may be  able  to  sue. Whether title to goods has passed from the consignor to  the consignee will depend upon the facts of each case and so  we have to look at the evidence produced in this case to decide whether in the case of five con- 587

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signments  booked to the J.C. Mills, the title to the  goods had  passed to the Mills before the fire broke out on  March 8,  1943.  We may add that both the courts have  found  that title to the goods had not passed to the J. C. Mills by that date  and that it was still in the consignor  and  therefore the Factory was entitled to sue.  We may in this  connection refer briefly to the evidence on this point. The  contract  between the Factory and the J. C.  Mills  was that delivery would be made by the seller at the godowns  of the J. C. Mills.  The contract also provided that the  goods would  be dispatched by railway on the seller’s risk  up  to the  point  named above (namely, the godowns of  the  J.  C. Mills).  Therefore the property in the goods would only pass to the J. C. Mills when delivery was made at the godown  and till then the consignor would be the owner of the goods  and the   goods   would  be  at  its  risk.    Ordinarily,   the consignments  would have been booked in the name  of  "self" but it seems that there was some legal difficulty in booking the consignments in the name of self and therefore the J. C. Mills  agreed that the consignments might be booked  in  the Mills’ name as consignee; but it was made clear by the J. C. Mills  that  the  contract would stand  unaffected  by  this method  of  consignment  and all  risk,  responsibility  and liability  regarding these cotton consignments would  be  of the  Factory till they were delivered to the J. C. Mills  in its  godowns as already agreed upon under the  contract  and all  losses arising from whatever cause to the  cotton  thus consigned would be borne by the Factory till its delivery as indicated  above.   This being, the nature of  the  contract between the consignor and the consignee in the present  case we have no hesitation in agreeing with the courts below that the  property in the goods was still with the  Factory  when the fire broke out on March 8, 1943.  Therefore the ordinary rule that it is the consignor who can sue will prevail  here because it is not proved that the consignor had parted  with the property in the goods, even though the consignments were booked in the name of the J. C. Mills.  We are therefore  of opinion  that the suit of the Factory was in view  of  these circumstances maintainable. As   to  the  suit  by  Ishwara  Nand,  he  relies  on   two circumstances in support of his right to maintain the  suit. In  the first place, he contended that he was the  owner  of the goods and that was why the railway receipt was  endorsed in  his  favour  by the consignor though it  was  booked  to "self".   In the second place, it was contended that  as  an endorse  to a document of title he was in any case  entitled to maintain the suit.  The trial court found on the evidence that it had been proved satisfactorily that Ishwara Nand 588 was  the  owner  of  the goods.  It also  held  that  as  an endorse  of  a  document of title he was  entitled  to  sue. These  findings  of  the trial court on  the  evidence  were accepted by the High Court in these words :-               "It  was  not  contended before  us  that  the               finding arrived at by the learned court  below               that  the plaintiff had the right to  sue  was               wrong, nor could, in view of the  overwhelming               evidence,  such  an  issue  be  raised.    The               evidence   on  the  point  has  already   been               carefully  analysed  by the court  below.   We               accept  the  finding and confirm it.   It  was               also  pointed  out that Ishwara Nand  was  the               endorsed consignee and in that capacity he had               in  any case a right to bring the  suit.   The               correctness   of   this  statement   was   not

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             challenged before us." Thus  there are concurrent findings of the two courts  below that  Ishwara Nand was the owner of the goods and  that  was why  the  railway receipt was endorsed in  his  favour.   In these circumstances he is certainly entitled to maintain the suit.   The contention that the plaintiffs in the two  suits could not maintain them. must therefore be rejected. Re. (ii). The  contention  under  this  head  is  that  five  of   the consignments  had been delivered to the J. C.  Mills  before March 8, 1943 and therefore the railway was not  responsible for  any loss caused by the fire which broke out  after  the consignments had been delivered on March 6 and 7, 1943.   It was  urged that it was the fault of the J. C. Mills that  it did not remove the consignments from the railway station  by March 7 and the liability for the loss due to fire on  March 8 must remain on the J. C. Mills.  The trial court had  held in  favour  of  the appellant with  respect  to  these  five consignments.   But  the High Court  reversed  that  finding holding  that there was no real delivery on March 6  and  7, though the delivery book had been signed on behalf of the J. C.  Mills and the railway receipts had been handed  over  to the railway in token of delivery having been taken.  It  was not disputed that the delivery book had been signed and  the railway receipts had been delivered to the railway; but  the evidence  was  that  it was the  practice  at  that  railway station,  so far as the J. C. Mills was concerned,  to  sign the  delivery  book and hand over the railway  receipts  and give  credit  vouchers  in respect of  the  freight  of  the consignment  even  before the goods had been  unloaded  from wagons.   It  appeared from the evidence that what  used  to happen was that as soon the wagons 589 arrived and they were identified as being wagons  containing consignments  in favour of the J. C. Mills,  the  consignee, namely,  the  J.  C. Mills, used to  surrender  the  railway receipts.,  sign the delivery book and give credit  vouchers in  respect  of the receipt of freight due even  before  the goods  were unloaded from wagons.  This practice was  proved from  the  evidence  of Har Prashad (D.W.  6)  who  was  the Assistant  Goods Clerk at Morar Road at the  relevant  time. He  was  in-charge of making delivery of such  goods,  there being  no Goods Clerk there.  He admitted that signature  of Ishwara  Nand as agent of the J. C. Mills was taken as  soon as the consignments were received and identified by  Ishwara Nand without being unloaded.  He further admitted that there had  been  no  actual  delivery  to  Ishwara  Nand  of   the consignments and this happened with respect to all the  five consignments.   Ishwara  Nand signed the  delivery  book  in token  of having received the delivery and  surrendered  the railway  receipts though when he did so the wagons were  not even unloaded.  On this evidence the High Court held that it could  not be said that there was any effective delivery  of the  goods to the J. C. Mills through Ishwara  Nand,  though token  delivery was made inasmuch as the delivery  book  had been  signed and the railway receipts surrendered.  It  also appears  from  the evidence of Har Prashad that  before  the goods  were actually removed, Ishwara Nand used to take  the permission  of Har Prashad to remove them.  This shows  that though there might be token delivery in the form of  signing the  delivery  book and surrendering the  railway  receipts, actual delivery used to take place later and the removal  of goods  took  place with the permission of Har  Prashad.   On this  state of evidence the High Court was of the view  that the  so-called  delivery by signing delivery book  and  sur-

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rendering  the railway receipts was no delivery at  all  for till then the goods had not been unloaded.  The unloading of goods  is  the  duty  of the railway and  there  can  be  no delivery  by the railway till the railway has  unloaded  the goods.   It is also clear from the evidence that even  after token delivery had been made in the manner indicated  above, the  consignee was not authorised to remove the  goods  from the  wagons and that it was the railway which  unloaded  the wagons  and  it  was  thereafter  that  the  consignee   was permitted to remove such goods with his permission as stated by  Har Prashad in his evidence.  The High  Court  therefore held that there was no clear evidence that delivery of goods had been made over to the consignee in these cases.  Further there  was  no  evidence to show that  the  consignee  could remove  the goods from the wagons without further  reference to  the  railway, on the other hand it appeared  that  after such token delivery permission 590 of Har Prashad was taken for actual removal of goods.  There fore,  the  High  Court came to  the  conclusion  that  real delivery had not been made when the fire took place on March 8,  for the goods were till then in wagons and  the  railway was  the only authority entitled to unload the  same.   Till they  were  unloaded  by the railway, they must  be  in  the custody of the railway and no delivery could be said to have taken  place  merely  by  signing  the  delivery  book   and surrendering  the railway receipts.  We are of opinion  that on the evidence the view taken by the High Court is correct. Though  there was a token delivery as appears from the  fact that railway receipts had been surrendered and the  delivery book  had  been signed, there was no real  delivery  by  the railway  to  the  consignee,  for the  goods  had  not  been unloaded and were still under the control and custody of the railway  and Har Prashad’s evidence is that  his  permission had  still  to be taken before the goods could  be  actually removed by the consignee.  The contention that the  delivery had  been  made to the consignee before March 8,  1943  must therefore in the peculiar circumstances of this case fail. Re. (iii). It  is next contended that damages should have been  awarded at  the  rate of Rs. 38/- per bale which was  tile  contract price  between  the  factory  and the  J.  C.  Mills.   This contract  was made in November 1942.  The contract price  is in our opinion no measure of damages to be awarded in a case like the present.  It is well-settled that it is the  market price  at the time the damage occurred which is the  measure of  damages  to be awarded.  It is not in dispute  that  the trial  court  has  calculated damages on the  basis  of  the market  price prevalent on March 8. In  these  circumstances this contention must also be rejected. Re. (iv). The next contention is that no interest could be awarded for the period before the suit on the amount of damages decreed. Legal  position with respect to this is well-settled :  (see Bengal  Nagpur  Railway Co. Limited v.  Ruttanki  Ramji  and Others)  (1).  That decision of the Judicial  Committee  was relied upon by this Court in Seth Thawardas Pherumal v.  The Union  of  India(2).  The same view was  expressed  by  this Court  in  Union of India v. A. L. Rallia  Ram(3).   In  the absence of any usage or contract, express or implied, or  of any provision of law to justify the award of interest, it is not possible to award interest by way of damages.  Also see (1)  65 I.A. 66. (2) [1955] 2 S.C.R. 48. (3) [1964] 3 S.C.R. 164.

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591 recent  decision of this Court in Union of India v.  Watkins Mayer & Company(1).  In view of these decisions no  interest could  be awarded for the period upto the date of  the  suit and  the  decretal amount in the two suits will have  to  be reduced by the amount of such interest awarded. We now come to the additional point raised in Ishwara Nand’s suit.   It  is  urged that Ishwara  Nand’s  consignment  had reached Morar Road Railway Station on February 23, 1943  and Ishwara  Nand should have taken delivery within  three  days which is the period during which under the rules no wharfage is charged.  The responsibility of the railway is Linder  s. 72  of  the  Indian Railways Act (No. 9 of  1890)  and  that responsibility  cannot be cut down by any rule.  It  may  be that the railway may not charge wharfage for three days  and it  is expected that a consignee would take away  the  goods within three days.  It is however urged that the railway  is a  carrier and its responsibility as a carrier must come  to an  end within a reasonable time after the arrival of  goods at   the  destination,  and  thereafter  there  can  be   no responsibility  whatsoever  of the railway.  It  is  further urged  that three days during which the railway keeps  goods without charging wharfage should be taken as reasonable time when its responsibility as a carrier ends; thereafter it has no  responsibility whatsoever.  Under s. 7 2 of  the  Indian Railways Act, the responsibility of the railway  administra- tion  for the loss, 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  ss. 151, 152 and  161  of  the  Indian Contract  Act, (No. 9 of 1872).  This responsibility in  our opinion continues until terminated in accordance with ss. 55 and 56 of the Railways Act.  The railway has framed rules in this connection which lay down that unclaimed goods are kept at the railway station to which they are booked for a period of  not  less than one month during which  time  the  notice prescribed under s. 56 of the Railways Act is issued if  the owner of the goods or person entitled thereto is known.   If delivery  is  not taken within this  period,  the  unclaimed goods  are sent to the unclaimed goods office where if  they are not of dangerous, perishable or offensive character they are  retained in the possession of the railway.   Thereafter public sales by auction can be held of unclaimed goods which remain with the railway for over six months.  This being the position under the rules so far as the application of ss. 55 and  56 is concerned, it follows that even though  the  res- ponsibility  of the railway as a carrier may come to an  end within (1)  C. As. 43 & 44 of 1963 decided on March 10, 1965. 592 a   reasonable  time  after  the  goods  have  reached   the destinationstation,  its  responsibility as  a  warehouseman continues  and that responsibility is also the same as  that of  a  bailee.   Reference in this  connection  is  made  to Chapman  v. The Great Western Railway Company(1).   In  that case what had happened was that certain goods had arrived on March  24  and  25.   On the morning of  March  27,  a  fire accidentally  broke out and the goods were consumed  by  the fire.  The consignor then sued the railway as common carrier on the ground that liability still subsisted when the  goods were  destroyed.  The question in that case was whether  the liability  of the railways was still as common  carrier,  on March  27 or was that of warehousemen.  The question was  of importance  in English law, for a common carrier  under  the English  law is an insurer and is liable for the  loss  even

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though  not  arising from any default on his  part  while  a warehouseman was only liable where there was want of  proper care.   It was held that the liability as a  common  carrier would  come  to end not immediately on the  arrival  of  the goods  at the destination but sometime must  elapse  between the  arrival of goods and its delivery.  This interval  how- ever  must be reasonable and it was held in that  case  that reasonable time had elapsed when the fire broke out on March 27  and therefore the railway’s responsibility was not  that of a carrier but only as warehouseman.  The position of  law in  India  is slightly different from that in  England,  for here  the  railway is only a bailee in the  absence  of  any special  contract and it is only when it is proved that  the railway  did  not take such care of the goods as  a  man  of ordinary  prudence would under similar circumstance take  of his  own  goods of the same bulk, quality and value  as  the goods  bailed, that the railway’s responsibility arises.   A warehouseman is also a bailee and therefore the railway will continue  to be a warehouseman under the bailment,  even  if its  responsibility  as  a  carrier after  the  lapse  of  a reasonable  time after arrival of goods at  the  destination comes  to an end.  But in both cases the  responsibility  in India is the same, namely, that of a bailee, and  negligence has  to  be proved.  In view of the rules to which  we  have already   referred   it   is  clear   that   the   railway’s responsibility  as  a  warehouseman continues  even  if  its responsibility as a carrier comes to end after the lapse  of a  reasonable  time  after  the  arrival  of  goods  at  the destination.  The responsibility as a warehouseman can  only come  to end in the manner provided by ss. 55 and 56 of  the Railways  Act  and the Rules which have been framed  and  to which  we  have  already  referred as  to  the  disposal  of unclaimed  goods.  In the present case under the  Rules  the goods had to remain at Morar (1)  (1880) 5Q.B.D.278. 593 Road  Railway Station for a period of one month after  their arrival there and Ishwara Nand came to take delivery of them on  March 10-well within that period.  It may be that as  he did  not  come within three days he has to pay  wharfage  or what  is  called  demurrage in  railway  parlance,  but  the responsibility  of the railway as a  warehouseman  certainly continued  till  March  10 when Ishwara Nand  went  to  take delivery of the goods.  As it has been found that there  had been negligence within the meaning of ss. 151 and 152 of the Indian  Contract  Act, the railway would be liable  to  make good the loss caused by the fire. The  appeals therefore fail with this modification that  the decretal  amount would be reduced by the amount of  interest awarded  for the period before the date of each  suit.   The rest  of the decree will stand.  The appellant will pay  the respondents’  costs-one  set of hearing fee.  In  CA  603/63 interest  will be calculated from 6-8-62 in accordance  with that order. Appeal dismissed and decree modified. 594