1. This is an appeal against the decree passed by the Additional Subordinate Judge. Cuttack allowing the claim for damages in favour of the plaintiff.
2. The plaintiff-respondent indented 99 bales of cotton from Messrs Rallis India Ltd.. for delivery at Charbatia Railway Station situate on the South Eastern Railways Messrs. Rallis India Ltd. handed over 99 bales of cotton in sound packing condition to the Western Railway (defendant No 1) at Gorakhpur. The said goods were booked under Invoice No. R.R. 73820 dated 21 3-59 ex-Gorakhpur toCharbatia. The railway receipt was duly endorsed in favour of the plaintiff. Out of the 99 bales 49 bales were delivered in good condition to the plaintiff at the Charbatia Railway Station on 12-4-59. The remaining fifty bales arrived at the said railway station in a different wagon on 26-4-59. These bales were found to have been partly burnt. The plaintiff demanded assessment delivery and accordingly assessment delivery certificate (Ext. 1) was given on 30-9-59 showing the details of the percentage of damages caused in respect of the said fifty bales. The plaintiff gave necessary notice under Section 77 of the Indian Railways Act and under Section 80 of the Civil Procedure Code claiming payment of damages on the basis of the loss incurred by him. He made all the four railways connected with the transit of the goods, defendants to suit. The defendants having failed to pay him the claim amount, the plaintiff filed the suit for realisation of damages to the extent of Rs. 6345-12 P.
3. Of the four defendants only the Northern Railways (defendant No. 2) and the South Eastern Railway (defendant No. 4) contested the suit, their case being that no damage was caused to the goods in transit on those railways and that there was no negligence or misconduct on the nart of any of their officers.
4. Several issues were pressed before the learned Subordinate Judge including one of limitation held held that the suit was within time and decreed the plaintiff's claim in full against the Faslcrn Railway (defendant No. 2) as the goods caught tire on Moghalsarai a station on the said railway. It is against this decision of the learned Subordinate Judge, the present appeal has been filed by the Union of India.
5. The contention of Mr. Pal, learned counsel for the appellant, is one of limitation. His argument is that the plaintiff having claimed compensation against the Railways for loss or injury to his goods, he should have filed the suit within one year from the date when such loss or injury occurred as provided under Article 30 of the Limitation Act. He urged that the cotton bales in question were actually burnt on 12-4-59 at Moghulsarai has been established by the evidence of the defendants and that being so. the limitation has to run from that date and not from 26-4-59 when the plaintiff came to know of the damage. That Article 30 applies to such cases is no beyond dispute in view of the decision of the Supreme Court reported in AIR 1962 SC 1879 Jetmal Bhojraj v. Darjeeling Himalayan Rly Co Ltd Article 30 of the Limitation Act 1908 runs as follows.
'30 Against a carrier for compensation for losing or injuring goods--One year--When the loss or injury occurs.''
Thus the article clearly lays down that limitation shall run from the date of the loss or injury.
6. Mr. Basu, learned counsel for the plaintiff-respondent, urged that a liberal construction should be given to the Article, so as not to cause any hardship to the claimant as itis not possible for him to know when exactly the loss took place. No doubt, it is not possible either to the consignor or to the consignee to know when precisely any loss or injury occurred to the goods. There even may be cases where it could not even be known to the Railways who carried the goods, but undoubtedly it is within the special knowledge of the Railway who carried the goods as to the date when the loss or injury occurred as obviously the loss or injury look place when the goods were in their charge. They are at least in a better position to say about this than either the consignor or the consignee.
7. It is now the settled law that the burden of proof is upon the railway administration who seeks to unsuit the plaintiff on the ground of limitation, to establish that the loss occurred beyond one year from the date of institution of the suit (See a decision of the Supreme Court reported in AIR 1960 SC 233. Union of India v. Amar Singh). In a later decision of the Supreme Court reported in AIR 1962 SC 1879. already referred to the same principle has been reiterated Thus, there can be no doubt about the legal position that the onus is on the Railway administration to prove as to when the loss look place if they want to plead limitation to unsuit the plaintiff In both the cases of the Supreme Court, referred to above, it was held on evidence that the Railway administration failed to establish that the suit was instituted beyond one year of the accrual of the cause of action. Thus, in each case the Court has to examine the evidence to find out if the Railway administration has discharged its onus.
8. In the present case, however, the defence has adduced some evidence to show that the goods were damaged by fire sometime on 12 4-59 at Moghulsarai. DW 3 was working as a relieving commercial clerk at Moghulsarai. He got the message book dated 12-4-59 and says that the suit-consignment was transhifted from wagon No. 36875-E.R to wagan No. 3408-NW owing to fire. He has asserted that he is well-aware of the fact that the wagon caught fire at Moghulsarai when he took charge of the wagon for transhipment to a new wagon, and detected that the goods were damaged by fire. He sent a telegraphic message Ext. A to the destination and forwarding stations. Ext. A is a telegrah issued on 12-4-59 on behalf of the Eastern Railway wherein it was stated that E.R. Wagon No. 36875 containing fifty cotton bales were damaged by fire. The evidence of DW 4 discloses that he was working as a train clerk al Moghulsarai in March 1959 when wagon No. 3408 was despatched from that station on 15-4-59 DW. 5 was serving at Charbatia as a goods clerk on 26-4-59 when wagon No. 3408 N.W. reached Charbatia carrying the fifty bales of cotton belonging to the plaintiff. These bales of cotton were found to be partly burnt. It is also his evidence that he received a message from Mogfaulsarai regarding the burning of the consignment It is not the case of the plaintiff that the cotton bales were lost or injured on 26-9-59 when he inspected the goods at Charbatia or on 30-8-59 when the damage was ascertained and assessment certificate (Ext. 1) was issued to him. His case is that he came to know of the loss on 26-4-59 when the goods arrived at Charbatia, but he also admits that the Railway staff informed him then that the cotton bales were burnt at Moghulsarai. This evidence fully supports the case of the defendants lhal the goods were burnt at Moghulsarai on 12-4-59 as is proved by the oral and contemporaneous documentary evidence in the case Thus it has been fully established by the defence that the goods were damaged by fire at Moghulsarai at least on 12-4-59. The suit should, therefore, have been foled within a period of one year from that date and a further period of two months for notice as required under Section 80 of the Civil Procedure Code to the benefit of which the plaintiff was entitled under Section 15(2) of the Limitation Act. The suit which was filed on 28-6-60 was therefore clearly out of time. The learned Subordinate Judge referred to the evidence of the defence and found lhal 'it -is clear that damage to the colton bales was caused at Moghulsarai-due to fire.' Though he came to this finding, he did not consider the importance of this finding in deciding the issue on limilalion. Once it is established by evidence that the goods caught fire at Moghulsarai. it must be hold as a matter of fad that the damage to the goods look place on 12-4-59. While deciding the issue on limitation, he look it for granted that limitation would run from 26-4-59 when the plaintiff unloaded the goods and - became aware of the loss. I have already said that the defence on whom the burden lav. has fully established by evidence that the suit was filed beyond time.
9. Mr. Basu, learned counsel for the respondent urged that the date of delivery should be taken as the relevant dale of 'loss' or 'injury' as the starling point of limitation under Article 30 and for this proposition he relied upon a decision of the Calcutta High Court reported in AIR 1955 Cal. 448. Union of India v. Gujrat Tobacco Co. In that case no such unqualified proposition of loss has been laid down. The learned Judges have also clearly laid down that the onus is on Railway administration who have special knowledge about the date of loss to prove the same and in the absence of satisfactory evidence on the point or in the event of its failure to discharge the onus, the date of delivery to the party should be taken as the starling point of limitation. Thus, it is only when the Railway adminislralion fails to discharge its onus, the date of delivery should be taken as the starting point of limitation under Article 30 on the basis that the 'loss or injury' occurred on that date. The same view has also been taken by the Allahabad High Court in the case reported in AIR 1925 All 656 G.I.P Railways v. Radhaymal Mannilal. With great respect. I am in agreement with this view.
10. Reliance was next placed on a decision of the Madras High Court reported in AIR 1963 Mad. 365, Sultan Pillai and Sons v. Unionof India. In that case a consignment of tobacco consisting of 55 bags was booked on 24-7-56. It reached the destination on 27-8-56. The plaintiff found the bags in a damaged condition and refused to take delivery. There was some correspondence between the parties. On 18-9-56 the Railway officials asked the plaintiff to take delivery of the goods or reasonable assessment of the damages The assessment of damages was made and a certificate was issued on 6-12-56. The suit was filed on 4-1-58 In that case no evidence appears to have been given by the Railway administration as to the date when the injurv was caused to the goods There was however some evidence to show that prior to the date of open delivery on 6-12-63 the plaintiff had knowledge of the fact of damages The learned Judge held that:
'But the exact nature of the injury and the quantum thereof on which alone he could claim damages was known to him only when the goods were examined after opening each bag and ascertaining its condition. That was done on 6-12-56.'
They accordingly held the suit to be within time. That case, however, is clearly distinguishable The Railway on whom the onus lay to prove the date of loss or injurv did not come forward with any such evidence. The main plea that appears to have been taken is that prior to the assessment of damages on 6-12-56, the plaintiff was aware of the loss and as such limitation should run from the date of such knowledge. The learned Judges observed that the plaintiff had come to know in a general way that the tobacco had been wetted and damaged, but the exact nature of the injury was known to him on 6-12-56 when the goods were examined. This is not a case where the Railway administration discharged its onus by placing satisfactory evidence before the Court that the loss or injury occurred on some other day as is the present case It is under these circumstances limitation was allowed to run from the date of knowledge.
11. We have alreadv seen from the evidence that the Railway has proved by satisfactory evidence that the 'loss or injury' was caused to the cotton bales in question on 12-4-59 at Moghulsarai. The suit therefore is clearly barred by the law of limitation. No argument was advanced on the quantum of the damages on behalf of the Railway administration.
12. In the result, therefore the appeal is allowed and the plaintiff's suit is dismissed. Under the circumstances of the case the parties to bear their own costs of this Court.
13. I agree.