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The New India Assurance Co. Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 32 of 68
Judge
Reported inILR1985Delhi56
ActsLimitation Act, 1908 - Schedule - Article 31
AppellantThe New India Assurance Co. Ltd.
RespondentUnion of India and ors.
Advocates: Arun Kumar,; H.S. Dhir and; Boota Mal, Advs
Excerpt:
.....delay in delivery of goods, shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of dispatch to the place of destination. what is reasonable time must depend on the facts of each case. there is no inflexible principle which can apply uniformly to all cases regardless of the facts. each case necessarily differs from all other in so far as its factual situation is concerned. exceptional circumstances render imperative that each case must be considered on its own facts. the word 'ought' it s a term which is relative in character. there is an almost infinite variety of circumstances to which it will have to be applied. it will be for a court of fact to determine what will be the reasonable time in these..........made it clear that in each case it is a question of fact to determine what will be the reasonable time. 'reasonable time will depend upon the facts of each case', the supreme court says. now on the facts of this case we have come to the conclusion that time began to run from 17th july, 1962 when the goods arrived in a burnt condition and were offered to the plaintiffs for taking delivery which they refused.(11) the supreme court has given an apt illustration. if the bridge between the place of dispatch and the place of destination is destroyed on account of floods the reasonable time will not be normal or usual time. these are special circumstances. it will be for a court of fact to determine what will be the reasonable time in these circumstances. between this illustration and the.....
Judgment:

Avadh Behari, J.

(1) This is an appeal from the judgment and decree of the Subordinate Judge dated 16th September, 1967.

(2) These are the facts. The appellant, the original plaint iff No. 2, and Indian Cable Co. Ltd. plaintiff No. I, brought a suit for the recovery of Rs. 20,000 on account of damages for the non-delivery of a consignment consisting of one cable drum containing 457.2 metres of cable. The goods were dispatched from Tata Nagar in West Bengal on 19th February, 1962. The place of destination was New Delhi, the goods arrived at New Delhi on 17th July, 1962. They were in a burnt condition. The plaintiffs refused to take delivery of the goods without assessment of damans. The Railway did not agree to the procedure of assessment'. So there was no delivery of the goods to the consignee, Delhi Municipal Gorpration. The plaintiffs brought a suit on 16th September, 1963 claiming a decree of Rs. 20,000 on account of damages the measure of damages being the price of the goods burnt during transit Including the freight. Interest was also claimed from the date of the suit till payment,

(3) The Railway resisted the suit. A number of issues were framed. All the issues were found in favor of the plaintiffs. The learned Judge came to the conclusion that the plaintiffs were entitled to a decree of Rs. 20,000. But he found that the suit was barred by time. He, thereforee, dismissed the .suit on the ground of limitation. one of the plaintiffs, namely, the insurance company with which the goods had been insured by the owner, plaintiff No. I, Indian Cable Co. Ltd. has brought this appeal from the order of dismissal made by the learned Subordinate Judge.

(4) The only issue raised in the appeal is the question of limitation. Counsel for the parties agree that to this case Article 31 of the Limitation Act, 1908 will apply. Article 31 says:__

'31.Against a carrier for compensate One year When the goods corporation for con delivery of, or ought to be deadlier in delivering goods,livered.'

(5) The real question is what is the meaning of the words 'ought to be delivered' used in this Article. The facts in this case are not in dispute. The goods were dispatched on 19th February, 1962. They did not arrive at the place of destination in time. The plaintiff No. I Indian Cable Co. Ltd. addressed a letter dated 5th July, 1962 to the Railway making inquiry about the whereabouts of the goods. To this letter the Eastern Railway on 12th July, 1962 sent a reply saying that 'the contents of wagon No. Nr 64507 were-transshipped into wagon No. Er 83239 which is on way to New Delhi' (Ex. P-24).

(6) On the receipt of this letter the plaintiffs waited for the B arrival of the goods. The good,s actually arrived on 17th July, 1962. They were found in a burnt condition, as we have said. The plaintiffs refused to take delivery. They brought the suit on 16th September, 1963. The only substantial question is whether the suit is within time. There is no dispute between the parties that if the period of two months of notice under section 80 Civil Procedure Code is taken into account and the starting point of limitation is held to be 17th July 1962, the date of arrival of the goods, the suit is within time because it wa' brought on 16th September, 1963.

(7) Section 31 of the Limitation Act 1908 came up for interpretation by the Supreme Court in Boota Mal vs . Union of India : [1963]1SCR70 . In that case the Supreme Court held that the words 'when the goods ought to be delivered' can only mean the reasonable time taken (in the absence of any term in the contract from which the time can be inferred expressly or implidly) in the carriage of the goods from the place of dispatch to the place of destination. The very fact that Article 31 deals with both cases of non-delivery of goods and delay in delivering the goods, shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of dispatch to the place of destination. What is reasonable time must depend on the facts of each case. The court then gave an example,

'FOR example take a case where the correspondence shows that a certain bridge between the place of dispatch and the place of destination has been destroyed on account of floods and that is the reason why the goods have not reached the place of destination. In such a case the correspondence may well be taken into account to find out the reasonable time for the carriage of the goods in the circum- stances. This will show that reasonable time will depend upon the facts of each case and that in the absence of any special circumstances the reasonable time would practically be the same between .two stations as would normally or usually or ordinarily be taken for the carriage of goods from the one Station to the other. Further there may be no difficulty in finding out the reasonable time where bulk of. the goods have been delivered and only a part has not been delivered for in such case in the absence of special circumstances it would be easy to see that the reasonable time is that within which the bulk of the goods have been delivered.'

This is a specific pronouncement of the law.

(8) Applying the principles enunciated by the Supreme Court we have to see what is the reasonable time for the carriage of the goods from the place of destination to the place of dispatch in this case. Are there any special circumstances on which this case will turn This is the question. We have seen. that the plaintiffs addressed a letter. In reply the Railway informed that the goods are on way to New Delhi. They had been transhipped from one wagon to another at Gaya. It is also admitted that on 27th February, 1962 the wagon caught fire at a place near Gaya in Bihar, which necessitated the trans shipment of the goods from one wagon to another. On arrival the goods were found in a burnt condition. In these circumstances limitation, in our opinion, starts from 17th July, 1962 when the goods actually reached New Delhi.

(9) The period of two months was spent by the plaintiffs in giving notice under section 80 Civil Procedure Code . The notice under Section 80 was given on 20th June, 1963 (Ex. DX). The learned Judge has referred to this notice and has relied upon the averments made by the plaintiffs namely, that the consignment was due to be received on the destination in the due course of transit in about 10 days time. This, he thought, was the case of the plaintiffs their selves and thereforee was the reasonable time for the arrival of the goods. Computing limitation from 1st March, 1962, the learned Judge held, that the suit instituted in September, 1963 was beyond time.

(10) With this reasoning we cannot agree. The Supreme Court has made it clear that in each case it is a question of fact to determine what will be the reasonable time. 'Reasonable time will depend upon the facts of each case', the Supreme Court says. Now on the facts of this case we have come to the conclusion that time began to run from 17th July, 1962 when the goods arrived in a burnt condition and were offered to the plaintiffs for taking delivery which they refused.

(11) The Supreme Court has given an apt illustration. If the bridge between the place of dispatch and the place of destination is destroyed on account of floods the reasonable time will not be normal or usual time. These are special circumstances. It will be for a court of fact to determine what will be the reasonable time in these circumstances. Between this illustration and the facts of this case there is not much difference. The wagon caught fire. The goods were transhipped from one wagon to another. This was an abnormal situation. The goods were delayed on way. The correspondence reveals the special circumstances of the case. On these facts it will be reasonable to hold that limitation began from 17th July, 1962. To start the limitation from March, 1962 as did the learned Judge, is to shut one's mind to the special circumstances of the( case. There is no inflexible principle which can apply uniformly to all cases regardless of the facts. The Supreme Court has been at pains to tell us that reasonable time will depend on the facts of each case. Each case necessarily differs from all others in so far as its factual situation is concerned. Exceptional circumstances render imperative that each case must be considered on its own facts. The word 'ought' is a term which is relative in character. There is an almost infinite variety of circumstances to which it will have to be applied.

(12) For these reasons we allow the appeal. We set aside the order of the learned Judge. We pass a decree for Rs. 20,000 with interest at the rate of 6 per cent per annum from the date of the suit till realisation. The respondents will pay costs throughout.


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