(1) This is an appeal filed by Asia Udyog Limited, which is a successor Company of Dalmia Jain Airways Limited Delhi (hereinafter referred to as Company) challenging a decree granted to Daulat Ram Kapur in a suit brought by him for recovery of Rs. 2,193/12/- as compensation for the loss of woollen goods sent to Srinagar from Amritsar by the plaintiff through the defendant Company, which acted as a public carrier.
(2) The facts of the case briefly stated are as follows: On the 19th of March, 1949, the plaintiff delivered a package of woollen cloth for carrying the same by air to Srinagar to be delivered to Ahmad Ullah Nakki. That package was never delivered. There was some correspondence between the parties and the suit out of which the present appeal has arisen was filed on the 19th of July,. 1950. The same was resisted on various grounds including the plea of limitation, and a number of issues were settled, which it is not necessary to give in detail.
The learned trial Court held that the goods in question were lost due to no fault of the Company, and that the suit was barred by time and consequently dismissed the same. In appeal, the findings of the Court below on these two issues were reversed by the learned District Judge, who decreed the suit to the extent of Rs. 1839/13/6, the value of the goods as found by the trial Court.
(3) Before us the only point urged was that the decision of the Court below on the issue of limitation was incorrect. for the proper decision of this issue, it is necessary to give in detail the facts as have been established on the record. The package was handed over to the City Office of the Company at Amritsar on the 19th of March, 1949. The same was sent to the aerodrome on the 20th of March, 1949, and was actually put in the plane going for Srinagar on the 29th of March, 1949. It appears that the package was lost while the same was being conveyed in the Company's lorry from the aerodrome to the City Office of the Company at Srinagar.
It is a common ground between the parties that thereafter several enquiries from the Company were made, but the Company was not in a position to give any definite reply. On the 8th of June, 1949, on an enquiry made by the plaintiff, vide Exhibit P. 8, the defendants informed the plaintiff vide Exhibit P. 7 that the goods in question were sent to Srinagar on the 29th of March, 1949. It is further clear from the letter dated the 17th of June, 1949, Exhibit P-9 that plaintiff was informed by the Srinagar Branch of the defendants on the 7th of June, 1949, to the following effect:
'The contents of this cover note have not arrived so far.'
Thus the plaintiff knew that the goods dispatched from Amritsar on the 29th of March, 1949, were not available at the Srinagar Office of the defendant firm on the 7th of June, 1949, though ordinarily it should not take more than a few hours for the journey to be performed by the plane from Amritsar to Srinagar airport and it should take a few hours more thereafter for the goods to be taken to the City Office and being delivered there. The correspondence between the parties, however, continued till on the 7th of July, 1949, vide Exhibit D. 8 the Company informed the plaintiff as follows:
'We have made the most exhaustive enquiries into the loss of the above parcel, but regret to inform you that, so far, we have not been able to trace it.
While we are sorry that you should have suffered this loss, we regret to state that we cannot accept any liability for the loss of this consignment....'
Thereafter on the 22nd of August, 1949, vide Exhibit D. 7, the Company's counsel informed the plaintiff that as a result of enquiry they have come to the conclusion that the consignment in question had been lost.
(4) Relying on the decision reported as The Governor-General in Council v. Kasiram Marwari, AIR 1949 Pt 268, the learned District Judge observed as follows:
'It is clear from the correspondence between the parties that it was in the month of August, 1949, that the plaintiff was finally informed by the Company that the goods had been lost.'
The suit having been instituted in July, the same was held to be in time. Before us, it is contended on behalf of the appellant Company that the view in AIR 1949 Pat 268 was not followed by the Full Bench of this Court in Dominion of India v. Amin Chand Bhola Nath, 1956-58 Pun LR 364: ((S) AIR 1957 Punj 49). The Article applicable to the case is Art. 31 and the sole point in dispute is as to the terminus a quo. According to Art. 31, the period of limitation is one year and the time from which the period begins to run is when the goods ought to be delivered.
There were two sets of views as to the interpretation of the words 'ought to be delivered'. According to one set of rulings, the period to be taken into consideration was the normal period that the goods should take to arrive at the destination, while the other view, which went to the other extreme, of which AIR 1949 Pat 268, is an illustration, was that the period of limitation does not begin to run 'until the carrier finally informs the consignee that the goods cannot be delivered.' While discussing this latter view, Bishan Narain J., with whose view the other two learned Judges concurred, observed as follows:
'It appears to me however......... that the words 'when the goods ought to be delivered' cannot be construed to mean when the carrier expresses its inability to or refuse to deliver the goods without doing violence to the language used by the legislature........... If the intention of the legislature had been to fix the date of refusal to deliver the goods as the time for starting the limitation, then it would not have been difficult for it to have used appropriate words for the purpose.'
The Full Bench also did not endorse the strict interpretations put by the authorities adopting the other view that limitation begins to run from the date when the goods in the normal course ought to have been delivered. The view taken by the Full Bench is expressed in these terms:
'The limitation in such cases starts on the expiry of the time between the parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case.'
Consequently, it is for the Court to decide what is the reasonable time within which the consigned goods ought to have been delivered having regard to all the circumstances of the case. In considering when the goods ought to be delivered, the Court, can, therefore, take into consideration traffic conditions prevailing at the time when the goods are handed over to the carrier, the condition of labour, weather and various other matters, which may delay either the carriage or the delivery of the goods in question at the destination.
The mere fact, however, that some correspondence was going on between the consignor and the consignee on the one hand and the carrier on the other, in which the carrier assured the other party that efforts were being made to trace a parcel, which had been lost or stolen, would not, in any way, extend the time when the goods 'ought to have been delivered.' When once it is known that the goods have been stolen or lost before they could be delivered, the mere fact that efforts are being made to trace the same has nothing to do with the question, that taking all the circumstances of traffic, etc., governing the carriage of the goods, the goods ought to have been delivered at a time soon after the time when they are said to have been stolen or lost.
As soon as the goods fail to reach the destination by the time when, in the circumstances of the case, the goods ought to have been delivered, cause of action arises to the consignor or the consignee, and he can bring a suit for the recovery of damages for failure of delivery or for the delay in the delivery of the goods, and the period of limitation begins to run immediately from such date and is not postponed or gets extended by the period that may be spent by the carrier in tracing out the thief or making efforts to recover the goods lost. The tracing of the goods is matter exclusively concerning the carrier. At page 373 (of Pun LR): (at p. 54 of AIR), of the report this matter is referred to as follows:
'The traffic conditions prevailing at the time when the goods are given to the carrier and also the traffic conditions prevailing from that time till the time when the goods are ready for delivery at the destination are matters which appear to me to be relevant for the purpose. The correspondence relating to the tracing of the goods by the railway authorities is not generally material, but if in that correspondence certain matters come to light which are relevant for the purposes of determining reasonable time of delivery then to that extent subsequent correspondence would be relevant. When the carrier undertakes to deliver goods to its destination it is liable to do so at the proper or reasonable time. The cause of action against the carrier therefore should start from the expiry of reasonable time. It is at that time the consignee becomes entitled to compensation.'
(5) In the present case, there can be no manner of doubt that although goods were delivered on the 19th March, 1949, in view of the information received that the same were sent by the plane leaving on the 9th March, the reasonable time when the goods ought to have been delivered, must be taken to be either the 29th or a day thereafter and the limitation ought reasonably to run from that date. In any case, Exhibit D. 8, letter dated the 7th of July, 1949, clearly indicated to the plaintiff that the goods had been lost and the Company had not been able to trace the same. The mere fact that later in October, 1949, some package was recovered by the police and the plaintiff was asked to go and identify the same, would not be at all material. The suit having been brought more than one year after the date when the goods ought to have been delivered and even more than one year after the date when the plaintiff was definitely informed that the goods have been lost and cannot be traced, the same is hopelessly barred by time. Consequently, we accept this appeal, set aside the judgment and the decree of the Court below and dismiss the suit of the plaintiff. In the peculiar circumstances of the case, however, we leave the parties to bear their own costs in this Court.
(6) Appeal allowed.