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Gauhati High Court · body

2000 DIGILAW 196 (GAU)

Indian Airlines Ltd. v. Ram Awatar Garodia

2000-06-05

J.N.SARMA

body2000
This appeal has been filed challenging the legality and validity of the judgment and decree dated 15.7.1097 passed by the Civil Judge (Senior Division), Sonitpur in Money Suit No.7 of 1985. A suit was filed by the plaintiffs for recovery of a sum of Rs. 1,55,670/- as damages. It was filed by the two plaintiffs who are respondents in this appeal. The brief facts are as follows : The plaintiff No. 1 is a Chartered Accountant and the plaintiff No.2 is the wife of plaintiff No. 1. Both of them are the residents of Tezpur. 2. It is alleged that the plaintiff No. 1 was suffering from Urinary infection and was advised by doctor to go to Calcutta immediately for treatment and accordingly an appointment was fixed with Dr. R. Kumar of Calcutta for check up on 18.4.84. The plaintiff wanted to travel from Tezpur to Calcutta by flight and accordingly purchased two tickets by Fright No.IC-212. The flight was delayed by four hours and left Tezpur Airport at 5.25 PM on 17.4.84 and landed at Guwahati Airport at about 5.45 PM. When the flight landed at Guwahati Airport on 17.4.84, the Airport was locked and there were no staff to receive the Aircraft. An Engineer of the Indian Airlines who was travelling from Dibrugarh by the same flight jumped out of the Aircraft and brought the stairs and helped the plaintiffs and other passengers and the crew to get down from the Aircraft. The passengers had to wait outside the Aircraft for about an hour. The Captain of the flight told that if the Airlines staff comes and releases the Aircraft within 20-25 minutes by off-loading the luggage of the Guwahati bound passengers, there would be sufficient light for the flight to take off for Calcutta. But the staff came after about an hour and as such, the flight had to be grounded there at Guwahati for the night. The plaintiffs along with some other passengers were sent to Hotel North Eastern, Guwahati by the Indian Airlines staff with the information that the flight will go to Calcutta at 9 AM on 18.4.84 and the plaintiffs and other passengers should be ready by 7 AM in the morning for the flight. On the morning of 18.4.84 a six seater coach came to pick up the passengers from the hotel. On the morning of 18.4.84 a six seater coach came to pick up the passengers from the hotel. There were about 12 passengers and all of them could not be accommodated and it was stated that another coach would come. But that coach never arrived and the plaintiffs could go to Calcutta only by IC-230 flight which left Guwahati in the afternoon only. There was gross negligence on the part of the Airlines. The plaintiffs could go to Calcutta by 1C flight No.212 on 18.4.84 after about delay of 3 hours. But to their utter surprise the luggage's were not booked in the flight of IC-212 and the luggages arrived at Calcutta Airport by another flight only after another 11 hours of the arrival of the passengers. The plaintiffs could not avail the appointment with the Doctor on 18.4.84. When he met the Doctor later on, he was told by Doctor that because of the delay there was some infection, for the negligence and delay the plaintiff had to undergo surgery for which the plaintiffs were compelled to stay at Calcutta for 2 months disrupting all the business which caused heavy loss to him. The. children of the plaintiffs had to be shifted to Golaghat where they had to stay for 3 months which caused disruption in the study of the children. For these causes the plaintiffs suffered mental shock besides disrupting business and practice of the plaintiff No.l. The plaintiffs claimed Rs. 1,00,000/- for mental shock, pain of body and mind and another Rs. 40,000/- for financial loss due to disruption of business and practice and Rs. 15,670/-being medical expenses, totalling an amount of Rs. 1,55,670/-. The plaintiffs served registered notice demanding the amount. The reply was sent admitting the delay but expressed their inability to pay the amount as claimed. As such, the suit was filed. In the schedule the claims have been detailed as follows: (1) Medical expenses incurred at Calcutta Nursing Home Charges Rs. 4,420.00 Fees to Doctor and his Assistants Rs.1,250.00 Medicines and other incidental expenses for 2 months Rs. 10,000.00 (2) Financial loss due to disruption of business and practice of plaintiff No.l Rs.40,000.00 (3) Damages for mental shock, pain of body and mind Rs.l,00,000.00 Rs. 1,55,670.00 (Rupees one lakh fifty five thousand six hundred seventy only)." 3. 4,420.00 Fees to Doctor and his Assistants Rs.1,250.00 Medicines and other incidental expenses for 2 months Rs. 10,000.00 (2) Financial loss due to disruption of business and practice of plaintiff No.l Rs.40,000.00 (3) Damages for mental shock, pain of body and mind Rs.l,00,000.00 Rs. 1,55,670.00 (Rupees one lakh fifty five thousand six hundred seventy only)." 3. A written statement was filed on behalf of the defendant and in paragraphs 7, 8 (c), 8 (d) and 8 (g) of the written statement, it has been stated as follows : "7. The suit is liable to be dismissed in view of the provisions of contained in Air Corporation Amendment Act, 1971 and Indian Airlines Non-International Carriage (Passenger and Baggage) Regulation Act, 1980. 8. (c) Due to operational reasons and mechanical troubles the said flight IC-212 landed at Guwahati Airport on 17th April, 1984 at 1756 hour. Since the Airport was closed at 17.35 hours on 17th April, 1984 for the reasons as stated herein above there was no commercial staff in the Airport. The Radio Engineer and Technician who were on the Board of the said Aircraft arranged to place the passenger steps in the Aircraft and arrangements were made by them for bringing down the passengers from the Aircraft and were led to the Airport lounge. Immediately on getting the news about landing IC-212 the Airport Manager, Gauhati attended the flight, due to the mechanical trouble the remaining part of journey of flight of IC-212 from Guwahati to Calcutta on 17th April, 1984 was cancelled and all the passengers of the said flight were sent to the city for night halt. All passengers of the said flight IC-212 were accommodated in the Hotel North Eastern at Guwahati for night of April 17, 1984 and all arrangements were made for their comfortable stay for that night. (d) The estimated time of departure of IC-212 was fixed at 09.00 hours on 18th April, 1984. But the said flight IC-212 had to be cancelled due to operational reasons and the passengers of the delayed flight were advised that they would be accommodated by IC-230 on 18th April, 1984. Unfortunately, later on it was found that IC-230 of 18th April, 1984 was fully booked and the passengers of the delayed flight of IC-212 of 17th April, 1984 could not be accommodated in the said aircraft. Unfortunately, later on it was found that IC-230 of 18th April, 1984 was fully booked and the passengers of the delayed flight of IC-212 of 17th April, 1984 could not be accommodated in the said aircraft. Ultimately all the said passengers were transported to Calcutta by flight IC-212 of April 18,1984 (g) In terms of the provisions as laid down in Non-International Carriage (Passengers and Baggage) Regulations Act, 1980, Indian Airlines has its right amongst others without assigning any reason to cancel or delay the commencement or continuation of the flight and/or to alter the stopping places or to deviate from the route of the journey without thereby incurring any liability of damages or otherwise to the passengers or to any other persons on any ground whatsoever. The Indian Airlines is also not liable for any damage occasioned by delay in the carriage by air of passengers or baggage. The Indian Airlines used to sell the air tickets to all the passengers subject to the aforesaid terms and conditions of Non-International Carriage (Passengers and Baggage) Regulations Act, 1980 and such conditions of the said Regulation specifically mention inside covers of the jackets of the air tickets sold to the passengers. The plaintiffs purchased the tickets from Indian Airlines subject to the aforesaid terms and conditions of the said Regulation which was specifically provided on the inside covers of the jackets of the tickets which were sold to the plaintiffs. After having accepted the terms and conditions of the tickets sold to the plaintiffs the plaintiffs cannot resile and/or detract from the terms which they have accepted without raising any objection whatsoever at the time of purchasing the tickets. Furthermore, the contract of carriage was undertaken by the defendant upon the express terms and conditions and as mentioned herein above the plaintiffs had accepted the said terms without raising any objection whatsoever. In the premises, the provisions contained on the inside covers of the jackets of the air tickets are binding upon the plaintiffs." The entitlement of the plaintiffs go get damage was decided. The following are the issues: 1. Whether there is any cause of action for the suit ? 2. Whether the suit is maintainable in the present form ? 3. Whether the suit is barred by limitation ? 4. Whether the plaintiff was suffering as alleged and the delay aggravated it ? 5. The following are the issues: 1. Whether there is any cause of action for the suit ? 2. Whether the suit is maintainable in the present form ? 3. Whether the suit is barred by limitation ? 4. Whether the plaintiff was suffering as alleged and the delay aggravated it ? 5. Whether there was negligence on the part of the defendant for the delay and inconvenience as alleged ? 6. Whether the delay was beyond the control of the defendant ? 7. Whether the claims is barred under conditions of the ticket issued by the defendant ? 8. Whether the plaintiff is entitled to damages as claimed ? 9. To what relief or reliefs the parties are entitled to? The following witnesses were examined. PW1 Ramavatar Garodia (plaintiff No. 1), PW 2 Dr. Kamakhya Prasad Chakraborty. The following are the exhibits - Exts 1 and 2, the Air tickets. There are other exhibits being the prescription and other medical advises. The learned Judge decided issue No. 1, the cause of action in favour of the plaintiffs. Issue No.2 also was decided in favour of the plaintiffs. Issue No.3 was not pressed. The learned Judge took issue Nos 4, 5 and 6 for discussion together. Having decided all the issues in favour of the plaintiffs, the Court decreed the suit for an amount of Rs. 55,670/- with interest @ 3% per annum from the date of filing of the suit.' Hence, this appeal. 4. At the time of admission of this appeal, this Court directed the judgment-debtor/appellant to deposit the decretal amount and accordingly an amount of Rs. 62,613.20 was deposited by cheque before the Registry of this Court and the amount has been received by the plaintiffs. 5. Regulation 3 (3) of the Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations Act, 1980 provides as follows : "3. (3) The Corporation reserves to itself the right, without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever. The Corporation also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or who is the opinion of the Corporation may constitute risk to the aircraft or to the persons on board." These regulations are quoted in the inner side of the tickets at Exts 1 and 2 and it is urged by Mr. Mahanta, learned Advocate for the appellant that this being a part of the contract, for the alleged negligence the plaintiffs are not entitled to pay compensation; (ii) that the damages has not been properly assessed as required under the law and that no damage has been proved in support of the amount decreed. The points for determination in this appeal are as follows: (1) Whether sub-regulation (3) of Regulation 3 of the Regulation, 1980 quoted above gives absolute immunity to the Corporation from incurring any liability for damage, (ii) if the answer to the first question is in the positive or negative, whether the plaintiffs are entitled to damage and if so to what extent? The terms and conditions of the regulation, 1980 printed inside the covers of the air tickets cannot be easily read. Be that as it may, this being a regulation, the plaintiffs must be deemed to have knowledge of it. But there is basic difference between a case where the parties enter into contract after due negotiation and knowledge and cases where one party which is handing over a ticket or receipt containing certain, terms to the other party. In this connection, one may look at the judgments quoted and discussed in AIR 1984 AP 5 (The Special Secretary to Govt of Rajasthan (Finance) Jaipur, Rajasthan & others vs. Vedakantara Venkataramana Seshaiyer & others) where in paragraphs 26, 27, 28 and 29 the Andhra Pradesh High Court pointed out as follows : "26. Lord Diplock in Schroeder Music Publishing Company Ltd vs. Macaulay, (1974) 3 All ER at p. 624) observed: "The ticket cases in the 19th century provide what are probably the first examples. The terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. The terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services enables him to say "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." 'Lord Denning MR in George Mitchell vs. Finney Lock Seeds, ((1983) 1 All ER 108 at p. 112) observed: "but, in view of modern developments, it is to be noticed that the conditions were not negotiated at all between any representative bodies. They were not negotiated by the National Farmer's Union." and ultimately at page 117- "The clause was not negotiated between persons of equal bargaining power. It was inserted by the seed merchants in their invoices without any negotiation with the farmers" And the clause was held not binding. As pointed out in Chitty on Contracts (Vol 1) (24th Edn 1977) page 313, paragraph 677: "The document must be of a class which either the party receiving it knows, or which a reasonable man would expect, to contain contractual conditions. Thus a cheque book (Burnett vs. West Minister Bank, (1966) 1 QB 742), a ticket for a deck chair (Chapelton vs. Barry UDC (1940) 1 KB 532), a ticket handed to a person at a public bath house (Taylor vs. Glasgow Corporation, (1952 SC 440) and a parking ticket issued by an automatic machine (Thornton vs. Shoe Lans Parking Ltd (1971) 2 QB 163) have been held to be case, where it would be quite reasonable that the party receiving it should assume that the writing contained no condition and should put it in his pocket unread. (Parker vs. South Eastern Rly. (1877) 2 CPD 416.422)." 27. The house of Lords in Me Cutcheon vs. David Mac Brayne Ltd, (1964) 1 All ER 430) was dealing with a risk-note in small print displayed outside and inside the defendants' office and also printed on a risk-note which was not signed by one Mr. Me Sporran. They gave him a receipt which stated that 'all goods were carried subject to the conditions set out in the notices', it was held that there was no contractual document. Me Sporran. They gave him a receipt which stated that 'all goods were carried subject to the conditions set out in the notices', it was held that there was no contractual document. Lord Devlin observed : "This sort of document is not meant to be read, still less to be understood. Its signature is in truth about as significant as a handshake that marks the formal conclusion of a bargain." and again, referring to the ticket cases, stated : "The question in these cases is whether or not the passenger has accepted the ticket as a contractual document. If he knows that it contains conditions of some sort, he must know that it is meant to be contractual." Lord Devlin pointed out that "there was not one law for individuals and another for organisation that can issue printed documents that the appellant in that case might say that the terms were unfair and unreasonable, that he had never voluntarily agreed to them, that it was impossible to read or understand them and that anyway, if he had tried to negotiate any change, the respondents in that case would not have listened to him; and then observed : "Now the boot is on the other foot.... what is sauce for the goose is sauce for the gander. It will remain unpalatable sauce for both animals until the legislature, if the Courts cannot do it, intervenes to secure that when contracts are made in circumstances in which there is no scope for free negotiation of the terms they are made upon terms that are clear, fair and reasonable and settled independently as such." The modem trend is that proof of and opportunity for negotiation is a necessary condition for imposing the rigour of the terms on the weaker party. 28. The time at which the party's attention to these terms is drawn is of equal importance. In the last mentioned case in Me Cutcheon vs. David Mac Brayne Ltd, (1964) 1 All ER 430) the House of Lords held that the receipt was given only after the oral contract had been concluded and hence not binding. In Olley vs. Marlborough Court Ltd (1949) 1 All ER 127) a husband and wife arrived at a hotel as guests and paid for a week's board and residence in advance. In Olley vs. Marlborough Court Ltd (1949) 1 All ER 127) a husband and wife arrived at a hotel as guests and paid for a week's board and residence in advance. They went up to the bedroom allotted to them, and on one of its walls was a notice that the proprietors will not hold themselves responsible for articles lost or stolen unless handed to the Managers for safe custody. The wife then closed the self locking door of the bed-room, went down stairs and hung the key on the board in the reception office. In her absence the key was wrongfully taken by a third party, who opened the bedroom and stole her property. The defendants sought to incorporate the notice in the contract. But the Court of Appeal held that the contract was completed before the guests went up to their room and that no subsequent notice could affect their rights. 29. In Thornton vs. Shoe Lane Parking Ltd, (1971) 2 QB 163 Lord Denning pointed out: "The customers is bound by these terms as long as they are sufficiently brought to his notice before hand, but not otherwise. The ticket is no more than a voucher or receipt for the money that has been paid..... on terms which have been offered and accepted before the ticket was issued..... The contract was then concluded and it could not be altered by any words printed on the ticket itself and Megaw in the same case observed : "..... .... there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort..... was sought to be included." If that was not done, it would amount to an effort on the part of the defendant to alter the terms of the contract by subsequently incorporating the printed terms of the ticket unlaterally. was sought to be included." If that was not done, it would amount to an effort on the part of the defendant to alter the terms of the contract by subsequently incorporating the printed terms of the ticket unlaterally. Burnett vs. West Minister Bank, (1966) 1 QB 742." The decision in AIR 1984 AP 5 (supra) was a case with regard to purchase of lottery tickets and there also was a rule being Rule 12 which stated that only when prize winner surrender the prize winning tickets duly signed with the forms annexed to the 2nd defendant within 30 days from the draw the prize shall be given, that not being done the prize have not been given to the winner, that rule was printed on the reverse side of the tickets. The Andhra Pradesh High Court in paragraph 41 came to a finding that there was no proof that it was brought to the notice of the plaintiffs and the Andhra Pradesh High Court has laid down the law as follows : "Our discussion of the case law on the first question is equally relevant on this point also and need not be repeated. There is no proof that the above clause which is contained on the reverse of the ticket or in Ext 1, is the result of a negotiated contract. The rulings both English and Indian are uniform and hold that if there is no such contract-entered into by both parties, there must be proof that the terms which are printed on the reverse or otherwise notified elsewhere, have been brought to the notice of the customer or at least that all that could be reasonably done in that regard has been done by the defendants. The greater the rigour of the exclusion of liability, the more the need to bring such clauses to the plaintiff's knowledge, or to do all that could possibly be done in that direction. in any event, the said effort on the part of the defendant should have been made at or before the time the plaintiff entered into the contract. The subsequent knowledge of the plaintiff in this regard does not help - as stated in Olley's case (1949) 1 All ER 127 (supra) and Burnett's case (1966) I QB 742 (supra). in any event, the said effort on the part of the defendant should have been made at or before the time the plaintiff entered into the contract. The subsequent knowledge of the plaintiff in this regard does not help - as stated in Olley's case (1949) 1 All ER 127 (supra) and Burnett's case (1966) I QB 742 (supra). These regulations have been framed in pursuance of section 45 (2) (g) of the Air Corporation Act and it provides the conditions governing the carriage of persons or goods. And an interpretation cannot be given to this rule which will give absolute immunity to a Corporation even when there is gross negligence on the part of the Airlines. Even in England the principle that King can do no wrong has now been explained to mean that the King is not above the laws in the unconfined sense of those words and that everything he does is necessarily just and lawful. The principle means that it extends not to do any injury because being created for the benefit of the public, it cannot be exercised to their prejudice. So in England it has now been held that King is under and not above the laws and is bound by them equally with his subjects. A public authority is deemed incapable not only of doing wrong but even of thinking wrong, whenever, therefore, it happens that by misinformation or inadvertence, such an authority has been induced to invade the private rights of a subject or in any way acts prejudicial to the rights of a private person, the law will not suppose that the authority meant either unwise or an injurious action. In a suit for damage, the authority who commits it whether spontaneously or by order of a superior power are answerable therefore in an ordinary action for the civil irresponsibility of the authority could not be maintained as justified which will be manifestly unjust. That is more so in a democratic country wedded to the Rule of law where this concept of immunity or exclusion clause must receive a restrictive and strict interpretation in the hand of the Court, as it is the goal of the Court to do justice between the parties and not to extend an umbrella of protection for the negligence of the authority. The regulation quoted above must be read down in conformity with the other statutory rights. It cannot be deemed to destroy or wipe out the rights available to a person under other statutes or laws. So, the first objection of the learned counsel shall fall through. The condition which was mentioned in 1971 in the LR in 1-971 QB Vol. 2 163 is quoted in this judgment at page 168. In the ticket which was issued there was some small printing in the left hand comer. The ticket was issued subject to the conditions of issuing as displayed on the premises. The conditions displayed in the premises are as follows : (1971 Vol. 2 QB Thornton vs. Shoe Lane Parking Ltd). “CONDITIONS 1. The customer agrees to pay the charges of Shoe Lane Parking Developments Ltd. 2. The customer is deemed to be fully insured at all times against all risks (including without prejudice to the generality of the foregoing, fire, damage and theft, whether due to the negligence of others or not and the company shall not be responsible or liable for any loss or misdelivery of or damage of whatever kind to the customer's motor vehicle, or any articles' carried therein or thereon or of or to any accessories carried thereon or therein or injury to the customer or any other person occurring when the 'customer's motor vehicle is in the parking building howsoever that loss, misdelivery, damage or injury shall be caused, and it is agreed and understood that the customer's motor vehicle is parked and permitted by the company to be parked in the parking building in accordance with this licence entirely at the customer's risk In page 169 the Lord Denning referred to the earlier cases and that paragraph is quoted below: "We have been referred to the ticket cases of former times from Parker South Eastern Railway Co, (1877) 2 CPD 416 to Me Custcheon vs. David Mac Brayne Ltd, (1964) 1 WLR 125. They were concerned with Railways, steamships and cloakrooms where booking clerks issued tickets to customers who took them away without reading them. In those cases the issue of the ticket was regarded as an offer by the company. They were concerned with Railways, steamships and cloakrooms where booking clerks issued tickets to customers who took them away without reading them. In those cases the issue of the ticket was regarded as an offer by the company. If the customer took it and retained it without objection, his act was regarded as an acceptance of the offer: see Watkins vs. Rymill, (1883)10 QBD 178, ^ 188 and Thompson vs. London, Midland and Scottish Railway Co. (1930) 1 KB 41, 47. These cases were based on the theory that the customer, on being handed the ticket, could refuse it and decline to enter into a contract on those terms. As could ask for his money back. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the train or the boat." These cases were not accepted as the correct propositions of law in view of the modern developments. In this case, save and except filing the written statement by the defendants, the defendant has not done anything to prove that there was sufficient cause for which there was delay in the flight at Tezpur and nobody was there to receive the Aircraft there at Guwahati. The matter does not end there. The plaintiffs were informed by the personnel of Airlines that the flight could leave for Calcutta if the flight was released by the Airport authority within 20-25 minutes as there would be sufficient light for the flight to take off for Calcutta. But this could not be done as the staff of the Airport did not arrive in time. The plaintiffs and others were accommodated at a hotel at Guwahati in the afternoon with an intimation that they would be taken to Calcutta by 7 AM in the morning of 18.4.84. But on the morning a vehicle was sent which could carry only six passengers, but the numbers of stranded passengers were twelve. So, the vehicle left and thereafter a message was sent to the plaintiffs and others passengers to be ready for 2.30 PM flight which left Guwahati on that day. The story did not end there. The flight which took the plaintiffs in the afternoon did y not carry luggages of the passengers as the same were loaded in another Aircraft. So, the vehicle left and thereafter a message was sent to the plaintiffs and others passengers to be ready for 2.30 PM flight which left Guwahati on that day. The story did not end there. The flight which took the plaintiffs in the afternoon did y not carry luggages of the passengers as the same were loaded in another Aircraft. All these happened because of negligence on the part of the Airlines and its staff. The next question is that what will be the extent of damage. Before we go to that, we must look at section 56 of the Contract Act as that also was urged faintly by the Advocate for the appellant 6. Section 56 of the Contract Act relates to (i) agreement to do impossible act, (ii) Contract to do act afterwards becoming impossible or unlawful. The question is that if the impossibility is not on account of some event which the party could not prevent or anticipate this section 56 will apply. But if the impossibility is self induced by or due to negligence of the party, this section shall not apply. In this particular case, it will appear that there was negligence on the part of the Airlines and it was because of that when the flight reached Guwahati, it was not at all possible to take off for Calcutta. 7. Doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56 of the Indian Contract Act. Section 56 lays down a rule of positive law and does not leave the matter to be determined according to intention of the parties. The relief is given by the Court ori the ground of subsequent impossibility when it finds that the whole purpose of basis of the contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what b was contemplated by the parties at the time when they entered into the agreement. (See AIR 1954 SC 44 , AIR 1968 SC 1024 , and AIR 1971 SC 1756 ). The present case does not come within sweep of section 56 and there is no evidence on the side of the defendants. (See AIR 1954 SC 44 , AIR 1968 SC 1024 , and AIR 1971 SC 1756 ). The present case does not come within sweep of section 56 and there is no evidence on the side of the defendants. So, the contract cannot be said to be afterwards become impossible. Next we come to section 73 of the Contract Act which deals with compensation for loss or damage caused by breach of contract. Illustrations (e), (i) and (r) of that section are quoted below with regard to the principle for assessing damage. (e) A, the owner of a boat, contracts with B to take a cargo of jute to Mirzapur, for sale at that place, starting on a specified day. The boat, owing to some avoidable cause does not start at the time appointed, whereby the arrival of the cargo at Mirzapur is delayed beyond the time when it would have arrived if that boat had sailed according to the contract. After that date, and before the arrival of the cargo, the price of jute falls. The measure of the compensation payable to B by A is the difference between the price which B could have obtained for the cargo at Mirzapur at the time when it would have arrived if forwarded in due course, and its market price at the time when it actually arrived. (i) A delivers to B, a common carrier, a machine to be conveyed without delay to A's mill, informing B that his mill is stopped for want of the machine. B unreasonably delays the delivery of the machine, and A, in consequence, loses a profitable contract with Govt. A is entitled to received from B, by way of compensation, the average amount of profit which would have been made, by the working of the mill during the time that delivery of it was delayed, but not the loss sustained through the loss of the Govt contract. (r) A, a ship-owner, contracts with B to convey him from Calcutta to Sydney in A's shop, sailing on the first of January, and B pays to A, by way of deposit, one- half of his passage money. (r) A, a ship-owner, contracts with B to convey him from Calcutta to Sydney in A's shop, sailing on the first of January, and B pays to A, by way of deposit, one- half of his passage money. The ship does not sail on the first of January, and B after being in consequence, detained in Calcutta for some time, and thereby put to some expense, proceeds to Sydney in another vessel, and in consequence, arriving too late in Sydney, losses a sum of money. A is liable to repay to B, his deposit, with interest, and the expense to which he is put by his detention in Calcutta, and the excess, if any of the passage-money paid for the second shop over that agreed upon for the first, but not the sum of money which B lost by arriving in Sydney too late. These illustrations no doubt are nothing more than general rules. 8. The general principle which is embodied in section 73 is that when there is breach of contract, the party who suffers by such breach is entitled to receive, compensation from the other party for the loss caused to him by such breach. It is the general intention of law that in giving damages for breach of contract, the •party is compensated so far as it can be done by money. It places in the same position as he would have been if the contract had been performed. Section 73 a further provides that compensation is not to be given for any remote or indirect loss or damage sustained by the party to the contract by reason of the breach of contract. The Court will give damage for breach of contract only by way of compensation for loss suffered and not by way of punishment. 9. Section 73 makes it compulsory for the plaintiffs to prove that he suffered damage and the extent to which he has suffered, the Court can award him damages for breach of contract. If he does not give best evidence, even presumption should be made against him, but this does not relieve the Court altogether of the duty of assessing the damages as best as it can on evidence and materials available before it. (see AIR 1918 PC 148). The amount of damages must be established with reasonable certainty. If he does not give best evidence, even presumption should be made against him, but this does not relieve the Court altogether of the duty of assessing the damages as best as it can on evidence and materials available before it. (see AIR 1918 PC 148). The amount of damages must be established with reasonable certainty. In this particular case, for the amount decreed by the trial Court there is no evidence whatsoever save and except the solitary statement of the plaintiff, that he suffered mentally and physically because of the delay of the flight. That cannot be sufficient At the same time, there is absolutely no evidence whatsoever regarding that claim or damage as granted by the trial Court. The trial Court granted the damage as follows : "Accordingly, the plaintiff is entitled to claim of Rs. 4,420/- for medical expenses incurred at Calcutta, Rs. 1,250/- fees to doctor and his assistance, Rs. 10,000/- for medicines and other incidental expenses for 2 months; Rs. 40,000/- financial loss due to disruption of business and practice of plaintiff No. 1 totalling Rs. 55,670/-including the interest @ 3% per annum with cost." No damage can be given on account of medical expenditure and there is absolutely no evidence on record with regard to financial loss. The doctors who treated the plaintiff at Calcutta have not been examined and there is no credible evidence to show that because of the delay, the plaintiff had to undergo this costly medical treatment. The case of the plaintiff is that he went to Calcutta for medical treatment and he would have borne the expenses of the medical treatment. The medical treatment was not necessary because of the negligence on the part of the Airlines. Further, there can be no interest on damages because interest is a part of the damage. So this part of the decree is to be quashed which I hereby do. But the question is that what should be the amount of compensation to the two plaintiffs for the mental agony and physical loss for the delay. I feel that ends of justice will be met if the plaintiffs are allowed to get a sum of Rs. 10,000/-only as damage. 8 10. The appeal is partly allowed. No costs. But the question is that what should be the amount of compensation to the two plaintiffs for the mental agony and physical loss for the delay. I feel that ends of justice will be met if the plaintiffs are allowed to get a sum of Rs. 10,000/-only as damage. 8 10. The appeal is partly allowed. No costs. As the money has already been paid, the defendants may take back the money by way of refund failing which in terms of the decree of this Court, the decree for refund may be executed in the trial Court for refund of the balance money. The suit shall stand dismissed save and except for an amount of Rs. 10,000/-. I have heard Mr. KK Mahanta, learned Advocate for appellant and Mr. AR Banerjee, learned Advocate for the respondents.