JUDGMENT The judgment of the Court was as follows :–– The defendant is an international airliner. The plaintiff is an orthodox Hindu and a strict vegetarian. He was and is still under a dietary restriction due to gastritis. On May 2, 1970 the defendant issued the air-tickets for his round the world tour and he left Calcutta on that day. He had to remain starved from Calcutta to Teheran, from Los Angeles to Tokyo, and from Seol to Hong Kong as he was not served with any vegetarian meals in the aircrafts. His air-ticket from Bucharest to Belgrade was issued by the defendant on L.Z. Airlines which was not operating in that route and he had to go to Belgrade by train. Hence, on the causes of action pleaded in the plaint he has filed this suit claiming Rs. 50,000/- as general damages and Rs. 3,400/- and 30,000/- as special damages. The pleadings of the respective parties will briefly appear from the following issues :–– 1. Was there any contract relating to supply of vegetarian meals as alleged in the plaint? 2. Did the defendant give any assurance regarding the supply of such meals as alleged in the plaint? 3. Wall there any custom, convention and practice of foreign airliners relating to supply of such meals as alleged in the plaint? 4. Did the defendant fail to supply such meals to the plaintiff as alleged in the plaint? 5. Is the defendant an agent of L.Z. Airlines and as such has no liability as alleged in paragraph 15 of the Written Statement? 6. Did the defendant fail to airlift the plaintiff from Bucharest to Belgrade due to Force Majeure as alleged in the Written Statement? 7. Did the plaintiff travel from Bucharest to Belgrade by train and incur a total expenses of Rs, 3,400/- as alleged in the plaint? 8. Was there any breach of contract or assurance or duty of care or negligence or misconduct or failure on the part of the defendant as alleged in the plaint? 9. Was the plaintiff induced or deceived to buy the said air-tickets as alleged in paragraph 18 of the plaint? 10. Did the plaintiff suffer any inconvenience, discomfort, pain or suffering during the said air-flights and at Bucharest for journeying to Belgrade by rail as alleged in the plaint? 11. 9. Was the plaintiff induced or deceived to buy the said air-tickets as alleged in paragraph 18 of the plaint? 10. Did the plaintiff suffer any inconvenience, discomfort, pain or suffering during the said air-flights and at Bucharest for journeying to Belgrade by rail as alleged in the plaint? 11. (a) Was the plaintiff taking a business trip to the knowledge of the defendant? (b) Did the plaintiff fail to keep his business appointments? 12. Is the claim for damage too remote? 13. Is the suit barred by Warshaw Convention as alleged in paragraph 30 of the Written Statement? 14. To what damages and relief, if any, the plaintiff is entitled Mr. A. K. Mitter, the learned Counsel for the plaintiff, has given up the plaintiff's case on Issues Nos. 9 and 11 including his claim for Rs. 30,000/- as special damages for the loss of business pleaded in the plaint and therefore I will not deal with them. 2. Mr. Khaitan and Mr. Sagar, who issued these air tickets, were examined before me. A few documents the air-tickets with endorsements thereon, and the meal-tickets, affixed to some of these air tickets, were tendered and exhibited by consent of the parties. That apart, Mr. Khaitan has also proved the endorsements made by the respective flight persers on the relevant air-tickets and one a flight jacket which was also exhibited and at the time it was tendered no objection was made by Mr. C. R. Dutt the learned Counsel for the defendant, appearing with Mr. P. K. Dutt. 3. The meal tickets are hereinafter stated as stickers, and they relate to the vegetarian meals to be served by the defendant to Mr. Khaitan. The endorsements relate to non-supply of such meals to him from Calcutta to Teheran, from Los Angeles to Tokyo, and from Seal to Hong Kong and they also corroborate his evidence that the defendant did not serve him any meals in these three aircrafts during the meal hours. 4. The defendant is a member of the International Air Transport Association. Exhibit "C" includes Article XIII(1) of this Association and this Article reads, inter-alia, as follows :––"Meals served in the aircraft will be free of charge except as provided in Carrier's Regulations." No regulation has, however, been disclosed by the defendant. 5. Mr. 4. The defendant is a member of the International Air Transport Association. Exhibit "C" includes Article XIII(1) of this Association and this Article reads, inter-alia, as follows :––"Meals served in the aircraft will be free of charge except as provided in Carrier's Regulations." No regulation has, however, been disclosed by the defendant. 5. Mr. Khaitan left Calcutta on 2nd May, 1970 at about 7.30 p. m. for Teheran by the aircraft of the defendant. Mr. Sagar (QQ. 340, 426 and 609-612) has said that at about 3 p.m. of May 2, 1970 has issued the air-tickets of Mr. Khaitan and handed over those tickets to him. He (QQ. 93, 94, 418-21, and 668-69) has admitted that the meals booked by him for Mr. Khaitan were ordinary vegetarian meals. The evidence of Mr. Sagar is that the defendant was to serve the vegetarian meals to Mr. Khaitan and, after pasting a sticker on his air ticket from Calcutta to Teheran, he gave all those air tickets to him. 6. The sticker reads, inter alia, as follows:––"SAS Special Meals Service. This is a special meal ticket. Please show it to the cabin attendant when you come to board. The meals you have ordered will then be served during the flight according to your instruction. We hope you will have a pleasant flight and enjoyable meals". And the endorsements nude by the flight perser of the defendant reads : "No vegetarian meals booked". 7. In New York and in Tokyo stickers were also pasted by the defendant on the air tickets of Mr. Khaitan from Los Angeles to Tokyo, and from Seol to Hong Kong, respectively, and the endorsements made by the respective flight persers of those two aircrafts conclusively show that he was not served with any vegetarian meals in these aircrafts. 8. I accept the evidence of Mr. Khaitan and hold that he was not served with any vegetarian meals in these three flights, not even bread, milk or fruits. Further, no evidence in rebuttal has been adduced by the defendant. The documents also support this case of the plaintiff in this behalf. 9. Now, as to L.Z. Airlines, Mr. Khaitan, immediately on his arrival, was to fly from Bucharest to Belgrade on May 5, 1970. The evidence of Mr. Sagar is that this air-ticket was issued by him on this airliner after consulting the "ABC" guide of 1970. He (QQ. The documents also support this case of the plaintiff in this behalf. 9. Now, as to L.Z. Airlines, Mr. Khaitan, immediately on his arrival, was to fly from Bucharest to Belgrade on May 5, 1970. The evidence of Mr. Sagar is that this air-ticket was issued by him on this airliner after consulting the "ABC" guide of 1970. He (QQ. 542(46) knew that this guide was not a reliable guide and it contained many incorrect informations. He did not even consult B.O.A.C., who used to look after the affairs of the defendant in the Calcutta Airport, before issuing this ticket. And the result was obvious; there was no such flight. 10. The defendant has not disclosed this guide and I reject the conjecture of Mr. Sagar that this guide was thrown away by an employee of the defendant in January or February 1971. I have said conjecture because (i) he had no personal knowledge about it, (ii) he did not search for it, and (iii) the alleged thrower was not called to prove it. That apart, damages were claimed in July 27, 1970 by asserting that this ticket was negligently issued by the defendant in this non-existent flight of L. Z. Airlines and therefore I reject his evidence even if it can be called to be an evidence. 11. The evidence of Mr. Khaitan on this aspect of the matter is as follows : On his arrival at the Bucharest airport he found that L. Z. Airlines was not at all operating in that route. He went to the defendant's Bucharest office where he was also told that L. Z. Airlines was not operating in that route and its Calcutta office had wrongly issued this ticket. Thereafter, the defendant's said office booked his passage in the Rumanian Airliner and immediately he went to the airport and found that the Rumanian aircraft had already left. He went back to the defendant's office where this ticket was cancelled by the defendant who refused to return the fare and asked him to take up the matter with its Calcutta office. The train for Belgrade was to leave at night and the defendant made no arrangements for his day stay at Bucharest. He had to stay as a paying guest in a digs arranged by the Rumanian Government. He had to go several times from the airport to the defendant's office and vice versa. The train for Belgrade was to leave at night and the defendant made no arrangements for his day stay at Bucharest. He had to stay as a paying guest in a digs arranged by the Rumanian Government. He had to go several times from the airport to the defendant's office and vice versa. He had to search for his accommodation and had to meet the Government employees. His foreign exchange was limited. He had to pay the railway fare for going to Belgrade. He left Bucharest by night train and had to spend the whole night in a second class sleeper. He had to incur costs on his meals in and from Bucharest to Belgrade. He has suffered physical inconvenience and discomfort in and from Bucharest to Belgrade. He also lost the amenities offered by the International Airliners to the passengers. 12. Mr. Sagar has no personal knowledge about this route. His source of information is the unreliable and undisclosed "ABC" guide. He was not in Bucharest. The evidence of Mr. Khaitan remains wholly uncontroverted and I accept it. 13. I will now summarize the evidence of Mr. Khaitan on the oral agreement and/or term and on the assurance and representation including their breaches by the defendant as pleaded in the plaint. Prior to May 2, 1970 he met Mr. Sagar several times and told him that he was an orthodox Hindu and a strict vegetarian and was under a dietary restriction due to his ill health and would require vegetarian meals in the aircrafts during the meal hours in this tour to which Mr. Sagar told him that the defendant would serve him suitable vegetarian meals free of costs in all the aircrafts during the meal hours and, after noting the places he would be visiting, requested him to come through the defendant's agents, M/s Oriental Travel Service, to whom he went and they also noted down the places of his visit and communicated the same in writing to the defendant. On May 2, 1970, he met Mr. Sagar with representative of the said agents and again reminded him of his ill health and the dietary restrictions. Mr. On May 2, 1970, he met Mr. Sagar with representative of the said agents and again reminded him of his ill health and the dietary restrictions. Mr. Sagar consulted the meal codes of the defendant and, after telling him that the defendant would supply the vegetarian meals to him in the aircraft during the meal hours and writing out the places and the fares on the air tickets and pasting a sticker on his air ticket from Calcutta to Teheran, gave him all the air tickets. 14. It was orally agreed between him and the defendant, represented by Mr. Sagar, that the defendant would serve him vegetarian meals free of costs in the aircrafts during the meal hours and in terms whereof Sagar had pasted the said sticker on his said air ticket from Calcutta to Teheran. He was asked by Mr. Sagar to contact the offices of the defendant on his onward journey for his vegetarian meals and he did so everywhere. The defendant has supplied vegetarian meals to him free of costs in the aircrafts except in these three legs of his journey and at Bucharest. The defendant, through Mr. Sagar, not only agreed to supply such meals to him but also gave him an assurance and made a representation to him in this behalf. The defendant has broken the said agreement and/or term including the said assurance and also has violated the said representation. He would not have undertaken this tour at all with the defendant if he was told by the defendant before issuing those tickets that the defendant would not supply vegetarian meals to him in the air crafts during the meal hours. 15. I will now briefly deal with the evidence of Mr. Sagar. He came out with the case at the very outset that he did not meet Mr. Khaitan at all prior to May 2, 1970, in order to show that there was no such discussion as said by Mr. Khaitan, but I reject this evidence of Mr. Sagar, for he later on said that he did not remember whether he met Mr. Khaitan prior to 2nd May and has further said that Mr. Khaitan might have met him prior to 2nd May in view of his long tour. His case is that an employee of the defendant was informed by the defendant's said agents that Mr. Sagar, for he later on said that he did not remember whether he met Mr. Khaitan prior to 2nd May and has further said that Mr. Khaitan might have met him prior to 2nd May in view of his long tour. His case is that an employee of the defendant was informed by the defendant's said agents that Mr. Khaitan was a vegetarian and would require vegetarian meals during his flight, but I also reject it, for they were not called to support it. 16. Mr. Sagar has said and I accept that the defendant's head office at Stockholm was instructed by its Calcutta Office by telex at least 72 hours before Mr. Khaitan left Calcutta for Teharan to load his meals in the defendant's air-craft on May 2, 1970 and these two meals were to be supplied by the defendant's Bangkok kitchen. This evidence of Mr. Sagar supports the case of Mr. Khaitan that the defendant, through Mr. Sagar, gave him an assurance and also made a representation to him prior to May 2, 1970 that he would be supplied with the vegetarian meals by the defendant in the aircrafts during the meal hours. It also supports his case that the said agreement was arrived at prior to May 2, 1970. 17. Mr. Sagar has denied that there was any agreement relating to supply of any vegetarian meals to Mr. Khaitan. He has further said that he did not give any assurance to Mr. Khaitan in this behalf. He also said that he did not make any representation to him to that effect. But the said sticker affixed by him stares at its face and I reject his evidence. I accept the evidence of Mr. Khaitan and hold that the defendant not only gave him the said assurance but also it was agreed between them that the defendant would serve him Vegetarian meals as pleaded by him. 18. It was a free meal. Hence Mr. Dutt, has argued that no action in damages for the breach of this agreement or term is maintainable, for, according to him, it is a gentleman's agreement or term inasmuch as there is no monetary consideration for it. But I reject his contention. The money is not the only consideration for a contract except to the moneymakers, and further the law does not require consideration for each and every term of the contract. But I reject his contention. The money is not the only consideration for a contract except to the moneymakers, and further the law does not require consideration for each and every term of the contract. Moreover, in view of the said assurance and that Mr. Khaitan would not have undertaken this tour at all with the defendant if he was told that he would not be served with vegetarian meals by the defendant it must be held that this term became an integral part of the contract of carriage. 19. In any event, Mr. Khaitan has also suffered inconvenience and detriment by relying on the above representation and assurance, and, therefore it must be held that the inconvenience and detriment suffered by him are the valuable consideration for this agreement and/or term in view of the law laid down by Lord Ellenborough in (1) Burn v. Guy, (1803) 4 East. 190, by Patterson J., in (2) Thomas v. Thomas, (1842) 2 QB 851, and by the Court of Exchequer Chamber in (3) Currie v. Misa, (1875) 10 Ex. 153. 20. Mr. Dutt also has argued that Mr. Sagar had no authority to agree to this term or to enter into this agreement, but his authority has not been questioned in the Written Statement nor there is any issue on it. Accordingly, Mr. Dutt is not entitled to argue it. That apart, reliance on Cl.II of the printed term in support of the above contention was misplaced by him, for the term relating to supply of meals does not "alter, modify or waive" the terms printed on the tickets in any way. Hence, there is also no merits in his contention. 21. I also reject his contention that Mr. Khaitan has failed to prove the custom and the practice of the trade pleaded in the plaint. Mr. Sagar has admitted them in his evidence and Mr. Khaitan has also proved them. I also reject his contention that this custom is inadmissible in evidence under section 92 of the Evidence Act. Proviso 5 is there and this custom and this practice of the trade are not in any way repugnant to or inconsistent with the printed terms. I hold that this custom and this practice of the trade are annexed to the contract of carriage as contended by Mr. Mitter. 22. Proviso 5 is there and this custom and this practice of the trade are not in any way repugnant to or inconsistent with the printed terms. I hold that this custom and this practice of the trade are annexed to the contract of carriage as contended by Mr. Mitter. 22. Now as to the facts on the contentions regarding the implied term relating to the supply of vegetarian meals. Mr. Sagar and Mr. Khaitan went outside India several times by air. Their evidence is that the passengers never carry any meals in the aircrafts and all the International Airliners invariably serve meal to the passengers in the aircrafts during the meal hours. Mr. Sagar (Qs. 259-69) has further said that the meals are always loaded by the defendant in the aircrafts according to the number of passengers traveling in the planes and no extra meal is ever loaded in the planes by the defendant. Mr. Khaitan has said that no food is ever sold in the aircrafts. Their evidence is that the meals are always served free to all passengers by all International Airliners. The most important piece of evidence of Mr. Sagar and which I have accepted is that at least 72 hours before the air tickets were issued that head office of the defendant was instructed by its Calcutta office to load the meals of Mr. Khaitan in the aircraft as already stated, and the defendant, in one of its letters, has admitted that the meals of Mr. Khaitan were booked long before his tickets were issued. 23. No passenger should be kept starved by any International Airliner in the aircrafts. Hence, it has been contended by Mr. Mitter that, out of dive necessity, a term should be implied to the effect that the defendant would serve vegetarian meals to. M. Khaitan in the aircrafts during the meal hours throughout this round the world tour. He has also argued that the said term should also be supplied by the Court in order to give business efficacy to the contract of carriage. 24. Mr. Dutt, on the other hand, has argued that no such term should be implied, in view of Section 92 of the Evidence Act, but I reject it. He has also argued that the said term should also be supplied by the Court in order to give business efficacy to the contract of carriage. 24. Mr. Dutt, on the other hand, has argued that no such term should be implied, in view of Section 92 of the Evidence Act, but I reject it. It is not for the parties but for the Court to imply a term from the presumed intention of the parties and in this case this term is not hit by this section in any manner whatever. 25. In support of his contention that no such term should be implied by the Court, Mr. Dutt has cited (4) Hill v. Harries, (1965) 2 All. ER 356, but it is a case on demise of a real property and no general principle of universal application has been laid down in it. Further, the great authority of (5) "The Moorcock", 14 PD 64, has not been shaken in any way by Hill v. Harries. The well known tests laid down by Lord Justice Scrutton, in (6) Reigate v. Union Manufacturing Co., (1918) KB 592 at p. 605, and by Lord Justice Mackinnon in (7) Shirlaw v. Southern Foundries Ltd, (1939) 2 KB 206 at p. 227, still hold the field. Therefore, I reject his contention that Hill v. Harries debars this Court from implying this term. 26. Mr. P. K. Dutt has also argued that no such term should be implied, for, according to him, it would contradict the written terms, but the printed terms are wholly silent on the meals and therefore there is no merits in his contention. His further submission is that a term can be implied only to save a contract from shipwreck and no such question can arise here for the journey part of the contract of carriage has been performed. But I reject this surgery on this contract. That apart, if Mr. Khaitan was kept starved in the aircrafts for a consecutive number of days in the earlier part of his journey the contract of carriage was bound to be shipwrecked by his shattered health. Therefore, the performance of the journey part of the contract of carriage is of no consequence. 27. It has also been contended by Mr. Khaitan was kept starved in the aircrafts for a consecutive number of days in the earlier part of his journey the contract of carriage was bound to be shipwrecked by his shattered health. Therefore, the performance of the journey part of the contract of carriage is of no consequence. 27. It has also been contended by Mr. C. R. Dutt that no such term should be implied, for, according to him, the facts and the circumstances of the case do not lead to an irresistible conclusion that the parties have entered into the contract of carriage on the footing that Mr. Khaitan would be served with the vegetarian meals in the aircrafts during the meal hours. His further submission is that to imply such a term is to make a new contract for the parties. He cited (8) Sm. Durga Devi Bhagat & anr. v. J. B. Advani & Co. Ltd., 76 CWN. 528, at pp. 540-41 which reads as follows :–– "It was contended by Mr. Ghose that the parties to the suit not having expressly stated in their written contract that those goods were to be exported by the defendant to Finland for its foreign buyers to imply an agreement or a term to that effect is to make a new contract for them, but it is well established by a long catena of decisions too well-known to be cited here that where the facts and circumstances lead to an irresistible conclusion that the parties must have agreed to do a thing on a particular footing though they may not have expressed it in their contract, be it written or oral, the Court should imply an agreement and/or a term to that effect and in so doing the Court does not make a new Contract for them but it only give, effect to their presumed intention as if they have expressly said to each other that this is the agreement between us or a term of our bargain’. Here the facts and circumstances leading to the formation of the contract in suit and the conduct of the parties to the suit sufficiently reveal their common intention and therefore I am unable to accept the contention of Mr. Ghose and accordingly my answer to Issue No. 3 is that Mr. Bhagat and the defendant had impliedly agreed that those goods when placed by Mr. Ghose and accordingly my answer to Issue No. 3 is that Mr. Bhagat and the defendant had impliedly agreed that those goods when placed by Mr. Bhagat alongside the Steamers were to be shipped by the defendant for the use of its Helsinki customers but there was no such collateral agreement as pleaded in the written statement." The above decision is, however, directly against his contention for, apart from their manifested intention, the facts and circumstances of the case, already discussed, conclusively lead to an irresistible conclusion that it was not only their presumed intention that the defendant would serve vegetarian meals to Mr. Khaitan but also there contract of carriage was entered into solely on that footing and therefore a term to that effect must be implied and hence I reject all the contentions made on behalf of the defendant relating to this implied term. 28. No evidence was adduced by the defendant on Issue No.6 and I reject the contention of Mr. Dutt that the defendant was unable to airlift the plaintiff from Bucharest to Belgrade due to the Force Majeure as alleged in the Written Statement. 29. In support of his contention that the defendant became the agent of L. Z. Airlines by issuing the said air-ticket, Mr. Dutt drew my attention to clause 5 of the printed terms. It reads as follows : "An air carrier issuing a ticket or checking baggage for carriage over the lines of another air carrier does so only as its agent." 30. The contention of Mr. Mitter is that the relation between the principal and the agent is a pure question of fact and this clause does not by itself establish any such relationship between the defendant and the L. Z. Airlines. He has cited Bowsted on Agency, Halsburys Laws of England and the Law of Evidence by Field and Ameer Ali in support of his above submission. There is much force in his submission, but I express no final opinion on it, for I have accepted his other contentions. 31. L.Z. Airlines was not at all operating in this route. It was a non-existent route so far and as far as L.Z. Airlines was concerned. Hence, this ticket could not be issued by the defendant at all for and on behalf of this airliner. Negligence apart, this ticket was wrongly issued by the defendant. 31. L.Z. Airlines was not at all operating in this route. It was a non-existent route so far and as far as L.Z. Airlines was concerned. Hence, this ticket could not be issued by the defendant at all for and on behalf of this airliner. Negligence apart, this ticket was wrongly issued by the defendant. Hence, by this unilateral wrongful act, no such relationship could be created by the defendant with this airliner. Further, this airliner did not ratify this wrongful act of the defendant who has also cancelled this ticket. Moreover, the subject matter of this ticket namely this route was not in existence so far as the defendant and the L. Z. Airlines were concerned and therefore there can never be any such relationship between them. Accordingly, I reject the contentions of Mr. Dutt and hold that the defendant was not the agent of L. Z. Airlines nor could it act as its agent as contended by Mr. Mitter. 32. It is the submission of Mr. Dutt that he is entitled to argue that this suit for damages in negligence is not maintainable against the defendant for non-supply of meals to Mr. Khaitan from Los Angles to Tokyo, and from Seal to Hongkong, for, according to him, the defendant has acted as the agent of Pan American Airways and Thai Airways respectively, in these routes. But he is not entitled to argue it, for no such defence has been taken in the written statement and it is also not a pure question of law. It is also elementary that no case should he decided outside the scope and ambit of the pleadings and the issues. There is no such issue. That apart, there is no substance even on the merits. Mr. Khaitan had to remain starved in these two routes due to the negligence of the defendant and therefore the suit is maintainable even if it held that the defendant has acted as the agent of these two airliners. 33. I will now dispose of a few cases cited by Mr. Dutt. (9) Wajit Ali & Ors. v. Emperor, AIR 1929 Pal. 34, is a criminal case and I am not trying any accused. (10) Chapman v. Honig, (1963) 2 Q B 502, relates to the validity of a notice to quit arising out of an alleged contempt of court with which I am not concerned. Dutt. (9) Wajit Ali & Ors. v. Emperor, AIR 1929 Pal. 34, is a criminal case and I am not trying any accused. (10) Chapman v. Honig, (1963) 2 Q B 502, relates to the validity of a notice to quit arising out of an alleged contempt of court with which I am not concerned. (11) Rotterdamsche Bank N.V. & Anr. v. British Overseas Airways Corporation & Anr., (1953) 1 All E.R. 675, deals with the question of jurisdiction of the Court, but there is no such issue before me. (12) Davis Contractors Ltd. v. Fareham Urban District Council, (1956) 2 All. ER 145, is on frustration of a contract, but no primary fact has been brought on record by the defendant in support of this plea. (13) Keshavlal Lallubhai Patel & Ors. v. Lalbai Trikumlal Mills Ltd., AIR 1958 SC 512 , calls for no discussion, for it is an authority on Sections 29 and 62 of the Contract Act. 34. It was conceded in (14) Union of India v. Shri Nivas Mal Bairogiya, AIR Pat. 282, that no damages was suffered by the plaintiff and therefore reliance on this case was misplaced by Mr. Dutt in which an observation has, however, been made to the effect that no damages can be awarded for physical inconvenience caused by the negligence, but, I respectfully dissent from it. 35. Many leading cases were cited on negligence. My attention was also drawn to the opinions of the learned authors and this branch of the law was well argued by all the learned counsel appearing for the respective parties. 36. Mr. Dutt has cited the cases of (15) James Lynch v. William Knight & Anr., (1861) 9 HLC 577 at p. 598, (16) Groom v. Cocker, (1938) All ER 399 at pp. 401-402, (17) King & anr. v. Phillips, (1953) 1 QB 429, (18) Behrens & Anr., v. Bertram Mill Circus Ltd, (1957) 2 Q.B. 1 at pp. 27-28, (19) Schneider v. Eisoyitch, (1960) 1 All. ER 169 at p. 175, (20) Fielding & Anr. v. Variety Incorporated, (1967) 2 Q.B. 841 at. p. 850, and (21) Hinz v. Berry, (1970) 2 Q.B. 40 at p. 42, in support of his submission that no damages can be awarded for mental shock, sufferings and pain unaccompanied by any physical injury. He has also relied on Halsbury's Laws of England (3rd Edn.) Vol. II Arts. v. Variety Incorporated, (1967) 2 Q.B. 841 at. p. 850, and (21) Hinz v. Berry, (1970) 2 Q.B. 40 at p. 42, in support of his submission that no damages can be awarded for mental shock, sufferings and pain unaccompanied by any physical injury. He has also relied on Halsbury's Laws of England (3rd Edn.) Vol. II Arts. 460 at p. 278 and Salmond on Torts (16th Edn.) at p. 14 in this behalf. 37. But by following (22) Chapman v. U. T. C., 13 SW 880 (ky), (23) Cook v. S., (1967) 1 All. ER 299, including Lord Denning in some of the cases cited above and also Lord Macmillan and Lord Wright in (24) Bourhill v. Young, 1943 AC. 92, I reject the contention of Mr. Dutt. The settled law is that, subject to the question of remoteness, a sufferer is always entitled to damages for mental shock, sufferings and pain caused by the negligence of the wrongdoer irrespective of any physical injury suffered by him, but this law is not available to Mr. Khaitan, for he has not claimed any such damages under these heads. 38. "Negligence", as observed in (25) New Marine Coal Co. v. The Union of India & Ors., AIR 1964 SC 152 at p. 195 of the report, "must be based on a duty owed by one party to the other and must, besides be shown to have been the proximate or the immediate cause of the loss." Therefore, it has been argued by Mr. P. K. Dutt that this duty exists only where there is a special relationship between the parties and that there is no such relationship between Mr. Khaitan and the defendant. Hence to refute it, (25) Donoghue v. Stevenson 1932 AC 562, was cited by the learned counsel Miss Roy appearing with Mr. Mitter. At p. 580 Lord Atkin says this :–– "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be––persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." In (27) Heaven v. Pender, 11 QBD 503 at p. 509, Bret MR observed as follows : "The proposition which these recognized cases suggest, and which is therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use––ordinary care and skill to avoid such danger... .." And the above law has been affirmed by Lord Buckmaster in (26) Donoghue v. Stevenson, (supra) at p. 571, and by Lord Macmillan, at p. 614 of the report. At pp. 618-619, Lord Macmillan also say this :–– "The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in––law of negligence. What, then, are the circumstances which give rise to this duty to take care? In the daily contracts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their follows : and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed." In (24) Bourhill v. Young, (supra) at p. 102, Lord Russel of Killowen says :–– "In my opinion, such a duty only arises towards those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach." And at p. 104, Lord Macmillan observed: "The duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed." 39. The contention that no such duty exists without a special relationship has been rejected in (29) Hasalding v. Daw & Sons Ltd., (1941) 2 K.B. 343, and in (28) Jackson v. Mayfair Window Cleaning Co. Ltd., (1952) 1 All. ER 215, and I also reject the same contention of Mr. P.K. Dutt who has also cited (29) Nocton v. Lord Ashburton, 1914 A.C. 932. It has been observed by Lord Haldane, at p. 948 that a liability for negligence may arise out of a special duty under certain circumstances and whether such a duty has been assumed must depend on the relationship of the parties, and in (31) Robinson v. National Bank of Scotland Ltd, 1916 SC (H.L.) 154 at p. 157, Lord Haldane further says this :–– "The whole of the doctrine as to fiduciary relationships, as to the duty of care arising from implied as well as express contracts, as to the duty of care arising from other special relationships which the courts may find to exist in particular cases, still remains, and I should be very sorry if any word fell from me which should suggest that the courts are in any way hampered in recognizing that the duty of care may be established when such cases really occur." 40. The submission of Mr. P.K. Dutt is that a special duty can only arise out of a contract or a fiduciary relationship as recognized by the Courts of Chancery. But I accept the contention of Miss Roy that (32) Hedley Byrne & Co. v. Heller & Partners Ltd., 1964 AC 465, is a complete answer to this contention of Mr. The submission of Mr. P.K. Dutt is that a special duty can only arise out of a contract or a fiduciary relationship as recognized by the Courts of Chancery. But I accept the contention of Miss Roy that (32) Hedley Byrne & Co. v. Heller & Partners Ltd., 1964 AC 465, is a complete answer to this contention of Mr. P.K. Dutt. I will read Lord Reid at p. 486 of the report :–– "Lord Haldane did not think that a duty to take case must be limited to cases of fiduciary relationship in the narrow sense of relationships which had been recognized by the Court of Chancery as being of fiduciary character." And, at pp. 496-503 of the report. Lord Morris; says this :–– "My Lords, ............. irrespective of any contractual or fiduciary relationship and irrespective of any direct dealing, a duty may be owed by one person to another......... there may be some situations in which one person voluntarily or gratuitously undertaken to do something for another person and becomes under a duty to exercise reasonable cant.........it should now be regarded as settled that if some one possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The facts that the service is to be given by means of or by the instrumentality of words can make no difference." And the Judicial Committee by following Hedley Bryne's case in (33) Mutual Life and Citizen Insurance Company v. Evott, 1971 AC 739, has placed the law on this subject beyond dispute and hence, the contention of Mr. P.K. Dutt must fail. Further, the defendant having agreed to supply vegetarian meals to Mr. Khaitan during the meal hours in the aircrafts took upon itself a special duty of care in this behalf. The defendant has also made a representation to him and given him an assurance in this behalf by affixing the said stickers on his air tickets and therefore, the agreement apart, the defendant owed him also a special duty of care in this behalf. The defendant also took upon itself the responsibility of booking his air passage from Bucharest to Belgrade and hence it also owed him a special duty of care in this matter. 41. Mr. The defendant also took upon itself the responsibility of booking his air passage from Bucharest to Belgrade and hence it also owed him a special duty of care in this matter. 41. Mr. Khaitan had to remain starved for about 17 hours from Calcutta, for 18 hours from Los Angeles, and for more than 5 to 6 hours from Seol. It is within the exclusive knowledge of the defendant as to what steps it took for loading these meals in these 3 aircraft including the reasons for their non-loading in these planes and their non-supply to Mr. Khaitan, and yet no iota of evidence on them has been led by the defendant. 42. The defendant has deliberately suppressed the ABC guide, for no such route of L. Z. Airlines is recorded therein. That apart, "negligence", as said by Baron Alderson in (34) Blyth v. Birmingham Waterworks Co., (1856) 11 Ex. 781 at p. 784, "is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affair would do, or doing something which a prudent and reasonable man would not do". Therefore, it must he held, as rightly contended by Mr. Mitter, that Mr. Sagar has proved the negligence of the defendant in issuing this air ticket, for no reasonable man placed in the same situation could have issued this ticket by relying on this unreliable guide and without making an enquiry, at least from B. O. A. who used to manage the affairs of the defendant in the Calcutta Airport. 43. Except negligence, Mr. Khaitan cannot assign any cause for non-loading of his meals in these 3 aircrafts by the defendant who has kept him starved without showing any cause whatsoever. It has also suppressed all materials in its possession relating to the non-loading of his meals in these 3 air-crafts. 43. Except negligence, Mr. Khaitan cannot assign any cause for non-loading of his meals in these 3 aircrafts by the defendant who has kept him starved without showing any cause whatsoever. It has also suppressed all materials in its possession relating to the non-loading of his meals in these 3 air-crafts. In these circumstances, by placing reliance on that part of my judgment in Suit No. 1944 of 1961 (Jiwandas Agarwalla v. Narayan Das Deora & Ors.) where I have held that "section 106 of the Evidence Act is an exception to Section 101" of that Act by following the decision of the Supreme Court in the case of (35) Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 at p. 406, it has been contended by Miss Roy that Section 106 is attracted in this case and under this section burden is on the defendant to prove that it took all reasonable steps for loading the meals of Mr. Khaitan in these 3 aircrafts. 44. By accepting the contention of Mr. P. K. Dutt that the onus and not the burden of proof shifts as held in (36) A. Raghavamma & anr. v. A. Chemchamma & anr., AIR 1964 SC 136 , she has argued that since the defendant has led no evidence to show that what steps it took for loading these meals in these 3 aircrafts and what precautions it took for preventing their non-loading, it should be held that the negligence of the defendant was the only cause of their non-loading in these aircrafts. She has also argued that an adverse presumption of negligence should be drawn against the defendant for the defendant is guilty of suppression of material evidence in its possession in this behalf. 45. On adverse presumption, she has placed reliance on the above decision of the Supreme Court and also on my judgment in Jewandas's case. And to reinforce this contention, Mr. Mitter has placed strong reliance on (37) The State of Punjab v. Modern Cultivators, AIR 1956 SC 17 . In this case the Supreme Court drew an adverse presumption of negligence against the defendant for withholding relevant materials from the Court. It is also a case on res ipsa loquiter. 46. By invoking this doctrine, as explained by the Supreme Court in the above case and also in (38) Shyamsundar & Ors. In this case the Supreme Court drew an adverse presumption of negligence against the defendant for withholding relevant materials from the Court. It is also a case on res ipsa loquiter. 46. By invoking this doctrine, as explained by the Supreme Court in the above case and also in (38) Shyamsundar & Ors. v. The State of Rajasthan, AIR 1974 SC 890 , it has also been contended by Mr. Mitter that the non-supply of these meals to Mr. Khaitan is a prima facie evidence of negligence of the defendant. And in support of this contention he has relied on the following facts. All International Airliners serve meals to all the passengers during the meal hours in the aircrafts; The defendant has also served vegetarian meals to Mr. Khaitan except in these three aircrafts; All other passengers got their meals and there is nothing on the record to show that any passenger, other than Mr. Khaitan, was ever kept starved by any International Airliner in the long history of carriage by air; The supply of meals to passengers is a day to day affair of the defendant and such supply is within its exclusive control and management; The defendant has thrice failed to supply his meals and these incidents are highly abnormal; And Mr. Khaitan is unable to assign any cause for the breach of this duty on the part of the defendant and how and why these incidents have occurred. 47. In these circumstances, the submission of Mr. Mitter is that the mere happening of these incidents is more consistent with the negligence of the defendant than with any other cause and in the absence of any explanation from the defendant as to causes of these incidents it must be held that these events have happened solely due to the negligence of defendant's employees. 48. According to Mr. Dutt, the doctrine of res ipsa loquiter is solely confined to the cases of strict or absolute liability, but I reject his contention, for this doctrine is not a "rule of liability" as said in Modern Cultivator's cage (supra) at p. 23. Mr. Dutt and his learned junior have also disputed the above contention; made on behalf of Mr. Khaitan. They have argued that the burden is on Mr. Mr. Dutt and his learned junior have also disputed the above contention; made on behalf of Mr. Khaitan. They have argued that the burden is on Mr. Khaitan to prove the negligence of the defendant and that the defendant has no duty to lead any evidence regarding the non-supply of meals to Mr. Khaitan, and that no adverse presumption should be drawn against the defendant either for non-production of document or for withholding the evidence from the Court. They have also relied on the abstract doctrine of the onus of proof and have argued that Mr. Khaitan has failed to prove the negligence of the defendant, because he has no personal knowledge about it. But, I reject their contentions. 49. The evidence of Mr. Sagar is that the passengers who come for booking at the last moment are always told by the defendant that they should eat before boarding the plane, for the defendant would not be able to supply them meals due to the shortness of time and that no extra meal is ever loaded by the defendant in the aircrafts. Therefore, apart from anything else, the defendant, having issued those stickers, was fully alive to the situation that Mr. Khaitan would be starving if his meals were not loaded in these 3 aircrafts. Further, sufficient time was given by Mr. Khaitan to the defendant to load his meals in these 3 aircrafts and the defendant took a special responsibility to supply his meals in these three flights. The supply of meals to him was within its exclusive control and management. The cause of non-supply of meals to him, in these circumstances, must be held to be within the special knowledge of the defendant and accordingly section 106 of the Evidence Act is attracted in this case. 50. Section 106 is a special provision, whereas Sections 101 to 104 are general provisions relating to the burden of proof. Section 106 in an exception to Sections 101 to 104. These sections leave the field when Section 106 comes to play. These provisions are however, not rules of liability, but are rules of evidence. It is true that the plaintiff must satisfy the Court that the negligence of the defendant has caused the incident, but it is equally true that the negligence is always a matter of inference for the Court. These provisions are however, not rules of liability, but are rules of evidence. It is true that the plaintiff must satisfy the Court that the negligence of the defendant has caused the incident, but it is equally true that the negligence is always a matter of inference for the Court. Such inference is drawn from the materials on record and also from the suppression of relevant materials and evidence in the possession of the defendant where Section 106 of the Evidence Act or the doctrine of res ipsa loquiter is attracted. It was the duty of the defendant under section 106 of the Evidence Act, to place all relevant materials before the Court as said by Sir Walter Philimore in (39) Dwarka Nath Rajmohan Chowdhury v. The River Steam Navigation Co, Ltd., 27 CLJ 615 at p. 619, in the following terms :–– "It is true that under the Law of Evidence Act of 1872, section 106, 'when any fact is especially within the knowledge of any person the burden of proving the fact is on him', and it was therefore right that the defendant Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or (expressing it otherwise) the negligence of the servants of the defendant company. It may be for the Company to lay the materials before the Court; but it remains for the plaintiffs to satisfy the Court that the true inference from those materials is that the servants of the defendant Company have not shown due care, skill and nerve". Evidence was adduced by the defendant in Dwarkanath's case and the inference was drawn in its favour. 51. No evidence has, however, been adduced by the defendant relating to the cause of non-supply of meals of Mr. Khaitan, who is apparently unable to lead any evidence on it as in (40) Choutmal Doogar & Ors. v. The Riva Steam Navigation Co. Ltd., ILR 26 Cal 786 where the fire consumed the goods in the flat which was in exclusive control and management of the company and the cause of the fire was unknown to the parties. Khaitan, who is apparently unable to lead any evidence on it as in (40) Choutmal Doogar & Ors. v. The Riva Steam Navigation Co. Ltd., ILR 26 Cal 786 where the fire consumed the goods in the flat which was in exclusive control and management of the company and the cause of the fire was unknown to the parties. At p. 813, Maclean C.J. said: "the mere occurrence of the fire......is, in the absence of explanation by the defendants, per se evidence of negligence." And at pp. 820-21 Macpherson J. said: "If all the precautions said to have been taken, and had been taken, it is almost impossible that the fire could have occurred, and that there should have been no explanation of it.........Treating the fire as evidence of negligence, that evidence has not in my opinion been displaced." And in dismissing the Company's appeal, 26 IA 1 at p. 3 of the report, Lord Morris said: "their Lordships do not require to hear the counsel in support of the decision of the High Court, as they are of opinion that there has been no case shown to alter the judgment that was pronounced by that Court." 51. In (41) The Secretary of State v. Dwarka Prasad, ILR 49 All. 559, the property belonging to the respondent was destroyed by fire caused by the live sparks escaping from an engine which was within the exclusive control and management of the railway administration whose evidence was not accepted by the Trial Court and on appeal it was held that the Trial Court was right in holding that the said property was destroyed by the negligence of the defendant inasmuch as the defendant had failed to discharge the onus, under section 106 of the Evidence Act, that lay on it by showing that proper steps were taken for preventing the escapement of live sparks from the said engine. 53. The defendant has suppressed the ABC guide. It has also suppressed the inter-departmental communications in writing between its offices at Calcutta, Stockholm and Bangkok regarding the supply and loading of Mr. Khaitan's meals in the aircraft in which he went to Teheran from Calcutta. The defendant has further withheld the material witnesses even after obtaining several adjournments to bring them from abroad to explain the causes of non-supply and non-loading of these meals in these 3 aircrafts. Khaitan's meals in the aircraft in which he went to Teheran from Calcutta. The defendant has further withheld the material witnesses even after obtaining several adjournments to bring them from abroad to explain the causes of non-supply and non-loading of these meals in these 3 aircrafts. Therefore, apart from my own decision in Jewandas case, it must be held that the defendant is not entitled to rely on the abstract doctrine of the onus of proof in view of the law laid down by the Supreme Court in (43) Gopal Krishnaji Ketkar v. Md. Haji Latif, AIR 1969 SC 1413 at p. 1416 of the report, in the following terms:–– "Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important document in his possession which can throw light on the facts at issue. It is not in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." 54. It has also been in Raghavamma's case, (supra) at p. 146, that an adverse presumption must be drawn against a party who has not placed the relevant documents in his possession before the Court and in Modern Cultivator's case, (supra), an adverse presumption of negligence was drawn by the Supreme Court against the defendant for withholding the material documents and evidence in its possession. Further in Shyamsundar's case, (supra). at p. 892, it has been said that "the fact that the defendant is as much at a loss to explain the accident or himself died in it does not preclude an adverse presumption against him, if the odds otherwise point to his negligence." 55. In this state of the law and on the facts and the circumstances of the case I accept the submissions made on behalf of Mr. Khaitan that an adverse presumption of negligence must be drawn against the defendant for withholding the material documents and the important witnesses from the Court relating to the non-supply of his meals and also relating to the issuance of his ticket on L.Z. Airlines. Khaitan that an adverse presumption of negligence must be drawn against the defendant for withholding the material documents and the important witnesses from the Court relating to the non-supply of his meals and also relating to the issuance of his ticket on L.Z. Airlines. In Shyamsundar's case, at p. 892, it has been said on res ipsa loquiter as follows :–– "The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with any other cause. The maxim is based on common sense and its purpose is to do justice when the facts bearing causation and on care exercised by defendant are at the outset, unknown to the plaintiff and are or ought to be within the knowledge of the defendant (See Barkway v. South Wales Transport, (1950) 1 All ER 392, 399). The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquiter is said to apply, and the plaintiff will be on titled to succeed unless the defendant by evidence, rebuts that probability". The same law has been stated in Clerk and Lindsell on Torts, (12th Edn.) in paragraph 796, where it has also been stated as follows :–– "The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant or some one for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If the two conditions are satisfied it follows on a balance of probability, that the defendant or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition; (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquiter is inappropriate, for the question of the defendant's negligence must be determined on that evidence." 56. There is, however, a further negative condition; (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquiter is inappropriate, for the question of the defendant's negligence must be determined on that evidence." 56. It has been said Modern Cultivator's case, (supra) at p. 23 of the report, that this doctrine "shifts onus from one party to another" and hence it must be held that under this doctrine and also under section 106 of the Evidence Act the defendant owed a duty to place all material documents in its possession and to call the material witnesses with regard to the non-loading of these meals in these 3 aircrafts. Apart from suppressing those documents the defendant has also withheld those material witnesses from the Court for the obvious reason, as observed, in (44) Union Bank v. Stone, 50 Me 595 at p. 599, in the following terms :–– "If he were a witness, he must either state the truth or a falsehood. If he testified truly, his hope of a successful defence was at an end....... He prefers the adverse inference which he cannot but perceive may be drawn therefrom, to any statement he could truly give or to any explanation he might make. He prefers any inferences to giving his testimony. Why : Because no inferences can be more adverse than would be the testimony he would be obliged by the truth to give. The fact of not testifying was obvious.........No court could perceive such a fact without attaching some degree of importance more or less, to its existence, according to the necessity of the testimony and the emergencies of the defence. No judge exists who would not if the trial had been before him regard this as a fact bearing on his decision." The following observation has also been made in (45) Brown v. Schock, 77 pa 471 at p. 478 :–– "A man of ordinary intelligence must know that his failing to appear, when he had a strong motive to appear would be evidence against him; if he realizes upon his ability to disprove the motive imputed, he takes the risk but he leaves the effect of his conduct, as a matter of evidence for the opposite side, to go to the Jury". 57. 57. It has been said in (46) Attorney General v. Pelletier, 134 N.E. 407, that refused to testify himself or to call available witnesses in his own behalf not only warrants inferences unfavourable to a party but also it "is a conduct in the nature of an admission. It is evidence against him. This principle of law has long been established and constantly applied." 58. It has been held by the Privy Council in (47) Gopikissen Goshami v. Brindabanchunder Sircar Chowdhury, 13 MIA 37 at p, 56, that an adverse inference should be drawn against the defendant for not giving evidence inasmuch as the facts and the circumstances of the case were all within his own knowledge. 59. The facts and the circumstances under which these meals were not loaded in these three aircrafts are all within the exclusive knowledge of the employees of the defendant whom the defendant intended to call but did not produce them for examination. Therefore, an adverse presumption of negligence must be drawn against the defendant for withholding them from the Court. I have said adverse presumption of negligence because, in the facts and circumstances already discussed it was reasonably foreseen by the defendant, like all other International Airliners of ordinary prudence, that Mr. Khaitan was bound to starve and suffer physical inconvenience, pain, discomfort and other ailments if his meals were not loaded in these three aircrafts in breach of its duty of care owed to him in this behalf. Further, the loading of vegetarian meals of Mr. Khaitan in the aircrafts was under the exclusive control and management of the defendant. They were not loaded by the defendant in these three aircrafts. Their non-loading calls for an explanation from the defendant. It has offered none. Therefore, the non-loading of these meals is per se evidence of negligence of the defendant. Accordingly, I hold that Mr. Khaitan had to remain starved in these three aircrafts due to the negligence of the defendant as pleaded in the plaint. 60. The defence of contributory negligence has not been taken in the written statement. Mr. Dutt did not suggest any issue on it. He did not even indicate it at the time the case was opened by Mr. Mitter. Therefore Mr. Dutt is not entitled to argue that Mr. 60. The defence of contributory negligence has not been taken in the written statement. Mr. Dutt did not suggest any issue on it. He did not even indicate it at the time the case was opened by Mr. Mitter. Therefore Mr. Dutt is not entitled to argue that Mr. Khaitan was guilty of contributory negligence as he was sleeping at the time the plane was alleged to have landed at the Karachi Airport. That apart, there is no merits in his contention, for it was not even suggested to Mr. Khaitan that he had a visa to enter Karachi or could go to the airport restaurant for taking his dinner and moreover there is no evidence on the record that vegetarian meals were available at this airport. 61. It has also been argued that Mr. Khaitan should have mitigated the damages by drinking milk and eating bread and butter, but I reject this contention by saying that this menu suggested by Mr. Dutt and his junior was not even offered to Mr. Khaitan and besides that he was told by the flight persers that there was no food for him in these 3 aircrafts. It has been urged that Mr. Khaitan did not suffer any physical inconvenience, pain, discomfort or embarrassment due to the starvation in the first leg of his journey because he ate something in the airport restaurant of Calcutta and slept for sometime in this aircraft. In the absence of a medical certificate, it was also argued that his health was not at all affected by starvation and in view of a certain discrepancies in his evidence it was argued that he has given false evidence, but I reject all these contentions. 62. No doubt, Mr. Khaitan took some food in this airport, but not the quantity he required for he was to take his dinner in the aircraft. He slept for some time for he could neither weep nor cry for his food like a bady. He left Calcutta at about 7.45 p.m. and reached Teheran at 3.30 a.m. without getting anything to eat. No food was available at Teheran at that hour and without getting any breakfast he had to leave the hotel early in the morning to catch the plane. His breakfast was served at about 11 a.m. in the aircraft and he had to starve for more than 17 hours. No food was available at Teheran at that hour and without getting any breakfast he had to leave the hotel early in the morning to catch the plane. His breakfast was served at about 11 a.m. in the aircraft and he had to starve for more than 17 hours. He left Los Angeles at 1 p.m. and reached Tokyo without break long after the mid-night. No meal was available there and he had to starve for 18 hours. It was a non-stop flight for 5 hours from Seol to Hong Kong and he had to starve until he reached the hotel. 63. He was a gastric patient. He was under a dietary restriction to the knowledge of the defendant. He was advised to eat something at intervals. Acidity developed in him due to starvation. He also caught cold. His sister is a medical practitioner in London and she treated him. A mere medical certificate is not an admissible evidence and everyone knows that hunger and starvation always cause some physical injury, pain, inconvenience, discomfort and embarrassment though their degree may vary according to the physical condition, situation and the duration of hunger and starvation in the facts and circumstances of each case. 64. He was kept starved in the presence of the other passengers who had their meals in these 3 aircrafts. They were all sympathetic towards him for his wretched flight and humiliating condition due to acidity and other physical ailments. The flight perser, who was flying with Mr. Khaitan in the first leg of his journey, was an employee of the defendant and he was not even called by the defendant to contradict the evidence of Khaitan which is a one way traffic. I hold that he has suffered physical inconvenience, pain, injury, discomfort and other ailments as stated by him in these three legs of journey. 65. It was also contended that the law of negligence does not recognize any cause of action for physical pain, inconvenience, discomfort, and embarrassment and no action for damages lies under these heads. It was argued that damages under these heads cannot be precisely assessed and therefore it cannot be allowed and in any event no damages should be allowed under these heads for they are too remote. But, there is no merits in these contentions. 66. It was argued that damages under these heads cannot be precisely assessed and therefore it cannot be allowed and in any event no damages should be allowed under these heads for they are too remote. But, there is no merits in these contentions. 66. It is well established by some of the English cases already cited and by the case of (48) Hobbs & Wife v. The London & South Western Company, 10 Q.B. 111, (49) Bailev v. Bullock & Ors., (1950) 2 All E.R. 1167, and (50) Jarvis v. Swans Tours Ltd., (1973) 1 All ER. 71, that a person causing physical inconvenience or pain or discomfort or embarrassment by his negligent act or omission is liable to pay damages to the sufferer. Jarvis's case is also an authority on damages relating to the breach of contract to supply amenities resulting in a loss of pleasure. 67. Jarvis's case was sought to be distinguished by saying that it was decided under the Misrepresentation Act, 1967, but reference to that Act was made on the question of representation and warranty and not on the liability in damages for negligence or in breach of con tract. Further, Hobbs & Wife v. The London & South Western Railway Company, (supra), and Bailev v. Bullock & Ors., (supra), were decided long before this Act was passed and these two cases were approved and followed in Jarvis's case and therefore there is no merits in the contention that it has no application in the instant case before me. Lord Denning is a party to this decision and at p. 74 his Lordship has said that the plaintiff is entitled "to recover damages if he suffered physical inconvenience." In (51) Giffiths v. Evans, (1953) 2 All. ER 1364, Lord Denning has refused to admit any distinction between mental shock and physical injury and his dissenting judgment has been followed in Jarvis's case by the other learned Lord Justices. Jarvis's case has also approved (52) Stedman v. Swans Tours, (1951) 95 Sol. J. 727, in which damages were increased by the Court of Appeal for negligently causing physical inconvenience to the plaintiff. Further, a plaintiff is entitled to damages for suffering substantial physical inconvenience and discomfort due to a breach of contract by the defendant : vide, Art. 50, p. 41 of Mayne & Mc Gregor on Damages (12th Edn.). 68. J. 727, in which damages were increased by the Court of Appeal for negligently causing physical inconvenience to the plaintiff. Further, a plaintiff is entitled to damages for suffering substantial physical inconvenience and discomfort due to a breach of contract by the defendant : vide, Art. 50, p. 41 of Mayne & Mc Gregor on Damages (12th Edn.). 68. Hence, it is futile even to argue that the law of negligence is a silent spectator on these heads of injury and that no action for damages lies for them. Further, the difficulty in assessing the damages precisely is not a ground for refusing to assess it. In (53) "The Mediana". 1900 AC 113 at pp. 116 and 117, Lord Halsbury says this:–– "Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case : how is anybody to measure pain and suffering in moneys counted ? Nobody can suggest that you can by an arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past ? But nevertheless the law recognizes that as a topic upon which damages may be given." In (54) Parry v. Cleaver, 1970 AC at p. 22, Lord Morris also says this :–– "The only compensation which the plaintiff can receive from the defendant and the only compensation which he seeks and claims is compensation in money. No question arises in the present cast in regard to the plaintiff's damages for his physical injuries. To compensate in money for pain and for physical consequences is invariably difficult but it is recognized that no other process can be devised than that of making a monetary assessment. No sort of arithmetical calculation is possible. No question arises in the present cast in regard to the plaintiff's damages for his physical injuries. To compensate in money for pain and for physical consequences is invariably difficult but it is recognized that no other process can be devised than that of making a monetary assessment. No sort of arithmetical calculation is possible. Money cannot really compensate for the loss of a limb or for any permanent deprivation of physical abilities or indeed for pain and suffering. There can be no equation between purchasing power and those things which cannot be purchased. But a money award is all that is possible. It is the best that can be done." 69. The difficulty in assessing the damages cannot deprive a plaintiff from obtaining compensation for the loss or damages suffered by him. It may not be possible to ascertain it precisely but the Court must assess a reasonable compensation as far as possible. Sec, (55) A. V. Joseph v. R. Shew Bux, 23 CWN 601; (56) Rameswar Bazaz v. Rani Shyma Sundari Debi, AIR 1926 PC 37; (57) Ramgopal & Ors. v. Dhanji Jadavji Bhatia, 55 IA 299; (58) Gambhirmull Mahabirprasad v. The Indian Bank Ltd. & anr., AIR 1963 Cal. 163 ; and (59) Chapln v. Hicks, (1911) 2 KB 786. "Pain and suffering is the main head of non-pecuniary loss". See, Mayne & McGregor on Damages. (12th Edn.) at p.780 and the Law of Damages by Ogus at pp 20, 82. And these damages are in the nature of a non-pecuniary losses and are recoverable even though no precise pecuniary estimation is possible. 70. The defendant had foreseen those damages suffered by Mr. Khaitan. These damages were also in their contemplation and have flown directly from the defendant's negligent acts and omissions. These damages also directly arise from the breach of contract on the part of the defendant to serve vegetarian meals to him and also to issue a correct ticket for his flight from Bucharest to Belgrade. Hence, I reject the contention of Mr. Dutt that the damages are too remote in this case. 71. The next submission of Mr. These damages also directly arise from the breach of contract on the part of the defendant to serve vegetarian meals to him and also to issue a correct ticket for his flight from Bucharest to Belgrade. Hence, I reject the contention of Mr. Dutt that the damages are too remote in this case. 71. The next submission of Mr. Dutt is that this suit is barred by Article 29 of the Warshaw convention on the ground that it has been filed beyond the time specified in this Article, for this "carriage is subject to the rules and limitations relating to liability established by" this convention as stated in clause 2 of the terms printed on the tickets. 72. India is not a party to this convention and therefore the Indian Carriage by Air Act, 1934 was passed. The relevant Rules of this Act are in para materia with the corresponding Articles of the Convention and these Rules are contained in Chapter III of the First Schedule to the Act. The learned Counsel for both the parties have referred to the Rules of this Act for convenience and I will do the same thing. 73. Chapter III deals with the liability of the carrier. Rule 17 provides that a carrier is liable for damages sustained in the event of the death or wounding of a passenger or of any other bodily injury suffered by him if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operation of embarking or disembarking. Rule 18 deals with its liability for damages with record to the registered luggage or any goods and Rule 19 deals with its liability for damages occasioned by delay in the carriage of passengers, luggage or goods. Rule 22 fixes the quantum of the aforesaid damages. Rule 25 precludes the carrier from taking shelter under these Rules if the carrier is guilty of wilful misconduct. Now, Rules 24 and 29 read as follows :–– "24. (1) In the cases covered by the Rules 18 and 19, any action for damages, however founded can only be brought subject to the conditions and limits set out in this Schedule. Now, Rules 24 and 29 read as follows :–– "24. (1) In the cases covered by the Rules 18 and 19, any action for damages, however founded can only be brought subject to the conditions and limits set out in this Schedule. (2) In the cases covered by Rule 17, the provisions of sub-rule (1) also apply without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights." "29. The right of damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped." 74. This suit was filed after the expiry of two years from the date of Mr. Khaitan's arrival at Calcutta and, therefore, the contention of Mr. Dutt is that Mr. Khaitan's right of damages has been extinguished in terms of Rule 29 corresponding to Rule 29 of the Convention. But I do not agree. 75. Though the Warshaw Convention is a part of the International Law, for the International Conventions are one of its main sources, and the Indian Carriage by Air Act, 1934 is a part of the municipal law of this country but their provisions relating to the carrier's liability for damages are same, as already stated. The intention of the High Contracting Parties and the legislative intent must be gathered from all the provisions relating to the carrier's liabilities for damages. The whole and every part of the instrument must be taken into consideration for ascertaining the scope, object and ambit of any of its parts, for every provision "has to be read not in a vacuo but as occurring in a single complex instrument in which one part may throw light on another" Vide, (60) James v. Commonwealth of Australia, 1936 AC 578 at p. 613, and approved in (61) Aliabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232 at p.253. 76. It is also well-settled that a legislative instrument should be read as a whole to ascertain the legislative intent : Vide, (62) Darshan Singh Balwant Singh & anr. Ltd. v. State of Assam, AIR 1961 SC 232 at p.253. 76. It is also well-settled that a legislative instrument should be read as a whole to ascertain the legislative intent : Vide, (62) Darshan Singh Balwant Singh & anr. v. The State of Punjab, AIR 1953 SC 83 , and (63) Poppatlal Shah v. The State of Madras, AIR 1953 SC 274 , and that a section of an Act must be construed with reference to other sections of the Act : Vide, (64) M. K. Ranganathan & anr. v. Government of Madras & Ors., AIR 1955 SC 604 . 77. Hence, it was contended on behalf of Mr. Khaitan that Artic1e 29 of the Convention and the Rule 29 of the Act do not apply to non-supply meals and to the issuance of an air-ticket on an airliner who does not operate in a particular route and therefore this case does not come within the Convention or the Act. This contention, in my opinion, is incontestable. 78. Khaitan that Artic1e 29 of the Convention and the Rule 29 of the Act do not apply to non-supply meals and to the issuance of an air-ticket on an airliner who does not operate in a particular route and therefore this case does not come within the Convention or the Act. This contention, in my opinion, is incontestable. 78. Even if it is said that the convention is not the Law of the Nations and that the intention of the High Contracting Parties should not be ascertained by applying the aforesaid principles, yet, in my opinion, the Convention, being a contract must be read as a whole in order to ascertain the intention of the High Contracting Parties as observed in (65) Trockmerton v. Tracey, (1555) 1 Plow, 145 at p. 161, by Staunford J. : "Every part of the deed ought to be compared with the other and one entire sense ought to be made thereof." And in (65) Barton v. Fitsgerald, (1812) 15 East 530 at p. 541, Lord Ellenborough says this :–– "It is a true rule of construction that the sense and the meaning of the parties in any particular part of an instrument may be collected ex-anticendibus et consequentibus (i.e., from what goes before End from what follows); every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done." Further, in (67) North Eastern Railway v. Hastings (Lord), 1900 AC 260, after quoting Lord Watson at p. 257 of the report, Lord Davey says this :–– "The deed must be read as a whole in order to ascertain the true meaning of its several clauses and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible." 79. The Convention and the Act do not deal at all with the Common Law liabilities of a carrier for damages arising out of a breach of contract or negligence in these two matters with which I am concerned in this case. The Convention and the Act do not deal at all with the Common Law liabilities of a carrier for damages arising out of a breach of contract or negligence in these two matters with which I am concerned in this case. Therefore, it must be held that these Common Law liabilities of the carriers for damages were not intended to be abrogated or affected in any manner whatsoever by the Act or the Convention, for, as stated in Maxewell on Interpretation of Statutes (11th Edn.) at pp. 78, 79, –– "One of the presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what is explicitly declares, either in express terms or by clear implication, or on other words, beyond the immediate scope and object of the Statute. In all general matters outside that limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness." 80. And this law has been approved by the Supreme Court in (64) M.K. Ranganathan & anr. v. Govt. of Madras & ors., AIR 1955 SC at p. 609. Further, the plain reading of Rule 29 of the Act and Article 29 of the Convention leads to an irresistible conclusion that they are solely confined to the cases coming under Articles 17, 18, and 19 of the Act, corresponding to Articles 17, 18 and 19 of the Convention and they are also controlled by Rule 24 of the Act, corresponding to Articles 24 of the Convention. In this connection the words "in the case covered by Rules 18 and 19" used in Rule 24 (1) of the Act and the words "in cases covered by Rule 17" used in Rule 24(2) of the Act and the identical, words med in corresponding Articles of the Convention are of pivotal importance on the construction of Rule 29 and the corresponding Article of the Convention. These Rules provide that any action for damages in cases covered by Rules 17, 18 and 19 can only be brought subject to the conditions and limitations set out in the Schedule, and Rule 29 is a part of the Schedule and, as already stated identical language has been used in the corresponding Articles of the Convention. These Rules provide that any action for damages in cases covered by Rules 17, 18 and 19 can only be brought subject to the conditions and limitations set out in the Schedule, and Rule 29 is a part of the Schedule and, as already stated identical language has been used in the corresponding Articles of the Convention. These liabilities of the defendant for damages cannot come within these Rules and the Articles and therefore the contention of Mr. Dutt must fail and it is unnecessary for me to express any opinion on the contention of Mr. Mitter that the defendant is not entitled to invoke the provisions of the Convention due to its "wilful misconduct" in view of Article 25 of the Convention. 81. Now as to the issue on misconduct. The defendant has recklessly issued the air ticket of Mr. Khaitan on L.Z. Airlines and when he was stranded at Bucharest, he was asked by the defendant to take up the matter with its Calcutta Office. The defendant has also kept him starved three times in the aircrafts in reckless disregard of its duties. Hence, I accept the submission of Miss. Roy that the defendant is guilty of misconduct as pleaded in the plaint in view of these repeated acts and omissions in utter disregard of their evil consequences and effects by following the observations made in (68) Horbins v. British Overseas Airways Corporation, (1952) 2 All. E R 1016. But a mere misconduct is not an actionable wrong, and it has not been shown that his misconduct of the defendant has aggravated the damages in any way and therefore I will not take it into consideration in awarding the damages against the defendant. 82. A sufferer is always entitled to general and not the nominal damages for physical inconvenience, pain, discomfort and other ailments. It is not possible to measure these damages precisely in terms of money and therefore no attempt has even been made to lay down any guideline for assessing these damages. The damages under these heads vary and must very from case to case, depending on their particular or special facts and circumstances. 83. The state of health of Mr. Khaitan was known to the defendant who has kept him starved in these aircrafts on three occasions and did not arrange for his meals at Bucharest. The damages under these heads vary and must very from case to case, depending on their particular or special facts and circumstances. 83. The state of health of Mr. Khaitan was known to the defendant who has kept him starved in these aircrafts on three occasions and did not arrange for his meals at Bucharest. These basic needs were denied to him and he had suffered physical inconvenience, pain and discomfort. He (Q.245) became the victim of "too much acidity" due to starvation and was ashamed for this "humiliating condition" in the presence of his well-fed Co-passengers who were very sorry for his wretched plight. He is a well-educated gentleman. He is also a well-to-do person. He lost all charms of flying in these three flights. He has suffered immensely. Hence, in the facts and circumstances of the case he should get Rs. 15,000/- as general damages under these heads. 84. He has also suffered physical inconvenience and discomfort at Bucharets due to the negligence of the defendant in issuing has air ticket on L.Z. Airlines. He was to leave Bucharest on arrival, but like a shuttlecock he had to move from airport to the defendant's office and vice versa only to be told to take up the matter with the Calcutta office. No arrangement was even made by the defendant for his day-stay at Bucharest. He had to contact the Rumanian Government for his stay and had to stay as a paying guest in a dig arranged by the Government. His foreign exchange was limited. He was an air-passenger and yet had to travel over-night from Bucharest to Belgrade in a 2nd Class Railway Sleeper due to the negligence of the defendant. The comfort and amenities accorded by the International Airliners were denied to him. In these circumstances, he should get Rs. 5,000/- as damages under this head. 85. He has incurred Rs. 750/- on his railway ticket from Belgrade to Bucharest and has spent Rs. 870.50 on his food in and from Bucharest to Belgrade. Therefore, he will also get Rs. 1,237.50 p. as special damages and not Rs. 3,400/- as claimed in the plaint. 86. In the premises, I answer Issues Nos. 1, 2, 3, 4, 5, 8, 10 and the 1st part of issue No. 7 in the affirmative and issues No.6, 12 and 13 in the negative. Therefore, he will also get Rs. 1,237.50 p. as special damages and not Rs. 3,400/- as claimed in the plaint. 86. In the premises, I answer Issues Nos. 1, 2, 3, 4, 5, 8, 10 and the 1st part of issue No. 7 in the affirmative and issues No.6, 12 and 13 in the negative. My answer to the 2nd part of Issue No.7 is that the plaintiff has incurred a total expense of Rs. 1,237.50 p. and not Rs. 3,400/- and on issue No. 14 I say that he is entitled to Rs. 20,000/- as general damages, Rs. 1,237.50 p. as special damages, and the costs of the suit. 87. Hence, the suit is decreed for Rs. 21, 237.50 p. with costs against the defendant. Certified for two Counsel.