Freight charges must always be deducted from the market value at the place of destination in calculating the damages payable by the railway for breach of contract.

R.L.Narasimham, J.

1. This is an appeal by the plaintiff against that portion of the judgment of U.N. Sinha, J. disallowing his claim in respect of the freight charges from the respondent railway. The material facts are as follows. On the 23rd, September. 1953, a consignment of 300 bags of sugar was despatched from Marhowrah Railway station on the Northeastern Railway to Tatnnagar Railway station on the Kastcrn (now South Eastern) Railway, the consignment being booked under railway risk. The plaintiff took open delivery on the 4th October, 1953, at Talanagar Railway station as there was shortage of sugar in some of the bags and also damage to several bags of sugar due to rain water entering inside the wagons. The plaintiff claimed damages from the railway at the rate of Rs. 32/8/- per maund, saying that that was the prevailing market rate at Jamshedpur. The learned trial Court, viz. Subordinate Judge, decreed his claim at the rate of Rs. 29/3/6 per maund, basing it on the actual cost price which was Rs. 27/6/6 and adding to that the railway freight at the rate of Rs. 1/5/3 per maund which was admittedly paid by the plaintiff, dunnage at the rate of Re. 0/4/3 per maund and cartage at the rate of Re. 0/3/6 per maund.

There was mi appeal by the railway before The single Judge, and there was also A cross-objection filed on behalf of the plaintiff. The learned single Judge affirmed the finding of the Trial Court that short delivery in respect of some bags of sugar and damage in respect of sonic other bugs were due to negligence on the part of the railway, and that they were liable to pay damages. He, however, rejected the contention of the plaintiff that the market late of sugar of Talanagar was Rs. 32/8/- per maund. as staled by him. He thought that the evidence adduced by the plaintiff in proof, of that market rate was not satisfactory, and was not aceeptable. Though Mr. Agarwal for the appellant-plaintiff wanted to challenge this finding of the learned single Judge, we are not inclined to reverse his finding which is based on appreciation of the evidence on record. Admittedly the evidence adduced by the plaintiff was very meagre, and it was open to the two Courts of fact to decline to accept the same as sufficient proof of the market rate at the place of destination.

2. But the learned single Judge observed that the plaintiff-appellant was not entitled to add the freight actually paid to the amount due to him from the railway by way of damages. He held that, once the plaintiffs evidence about the market rate at the place of destination was not accepted, the only other way for estimating the market rate was to ascertain the actual price paid by the plaintiff and add to that the dunnage which he fixed at a lump sum of Rs. 30/-.

He held that railway freight and cartage should not be allowed because expenditure in respect of those items was incurred by the plaintiff in the performance of his part of the contract with the railway. The legality of this view has been strenuously challenged by Mr. Agarwal for the appellant, who contended that, in estimating the market price of the goods at the place of destination, the Court ought to have added the transport charges to the price at the place of consignment. In support of this contention, he relied on some observations in a recent decision of a Division Bench of this Court, consisting of Misra and G.N. Prasad, JJ. in Sagarmal Choudhary V/s. Union of India, L.P.A. No. 119 of 1959, disposed of on 4-11-1964 : (AIR 1965 Pat. 316) where the learned Judge observed : "We would accordingly make the position clear that where the railway freight has been established to have been already paid by the consignor to the railway administration, this amount could not be excluded from the prevailing market rate at the place of destination.

Mr. Bose, on behalf of the respondent, challenged the correctness of this view, and invited our attention to several previous decisions of this Court, to which