Lotus Line (P) Ltd. Vs. The State of
Maharashtra  INSC 2 (7 January 1965)
07/01/1965 WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) SIKRI, S.M.
CITATION: 1965 AIR 1314 1965 SCR (2) 699
Damages-Measure of-whether party complaining
of wrong to property entitled to restitution--or to restoration of property
damaged to original condition.
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 Wednes bury Corporation's Case,  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 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]
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 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 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
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)  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 there for 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 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.  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
"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 interest 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.