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M. Sultan Pillai and Sons, a Registered Partnership Firm Vs. the Union of India (Uoi), Represented by the General Manager, Western Railways and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 399 of 1959
Judge
Reported inAIR1963Mad365
ActsLimitation Act, 1908 - Article 30
AppellantM. Sultan Pillai and Sons, a Registered Partnership Firm
RespondentThe Union of India (Uoi), Represented by the General Manager, Western Railways and ors.
Appellant AdvocateD. Ramaswami Iyengar and ;R. Jagannathan, Advs.
Respondent AdvocateS.S. Ramchandra Iyer and ;S.R. Kumaraswami, Advs.
DispositionAppeal allowed
Cases ReferredUnion of India v. S. K. Abdul Razack
Excerpt:
- - the learned judges of the mysore high court held, differing from the view taken by the courts below that the limitation was saved on account of the acknowledgment of liability by the appellant, that the suit was clearly barred by limitation......made to the consignee and the loss was estimated by the commercial inspector on 3-8-1952, but the suit for damages was filed on 12-8-1954, after the lapse of more than one year. the learned judges of the mysore high court held, differing from the view taken by the courts below that the limitation was saved on account of the acknowledgment of liability by the appellant, that the suit was clearly barred by limitation. we are in respectful agreement with this view. but the question as to when time begins to run against the plaintiff for the purpose of article 30 of the limitation act was not considered in this case. that aspect has been gone into in : air1962mad349 , and we respectfully agree with the view expressed by the learned judges in the above case. applying the said ruling, the.....
Judgment:

Kunhamed Kutti, J.

1. The only point that arises for determination in this appeal is whether the suit is barred by limitation. The facts can be briefly stated.

2. On 24-7- 1956 a consignment of beedi tobacco consisting of 55 bags was despatched from Karamsad in the State of Mahrashtra to Tirunelveli junction. The goods had to pass through the Western Railway, Central railway and Southern railway and actually reached Tirunelveli Junction on 27-8-1956, which normally is a much longer time than usually required. The plaintiff who is the consignee of the goods found them wet on arrival and, therefore, did not take delivery. On 1-9-1956 the plaintiff wrote to the Chief Commercial Superintendent of the Southern railway as per Ex. A.13 that the above consignment reached Tirunelvelijunction after a pretty long time and that almost all the bags were found damaged due to rains as the bags had been loaded in an old wagon exposed to sun and rain in transit. By this letter the plaintiff also informed the Chief Commercial Superintendent that, since the bags were damaged, the plaintiff was not in a position to take delivery as the tobacco had completely lost its colour, flavour, taste, strength etc. and was unfit for human consumption. As there was no reply to this letter, the plaintiff again wrote on 11-9-1956 as per Ex. A. 14, setting out the price including the excise duty of the 55 bags of tobacco and requesting the Chief Commercial Superintendent to settle the claim. In reply to the latter letter, the Chief Commercial Superintendent wrote to the plaintiff on 18-9-1956, as per Ex. A.3, asking him to take delivery of the consignment on reasonable assessment of the damage and informing him further that if such delivery was not taken within 3 days from the receipt of the letter, the goods would be disposed of at the plaintiff's risk and responsibility holding him liable for wharfage etc. in accordance with Sections 55 and 56 of the Railways Act. The plaintiff was also informed in this letter that necessary instructions had been issued to the Claims Inspector. Tirunelveli, in the matter of assessment.

3. It would appear that on 9-10-1956 the goods were examined by the Central Excise and Railway Officials (A. T. S. and Commercial Inspector of the railway and Deputy Superintendent and Range Officer of the Central Excise). But as the Commercial Inspector wanted all the damaged bags to be emptied and the tobacco , processed, actual delivery was not given to the plaintiff who, then wrote as per Ex. B.4 on 10-10-1956, that processing wanted by the railway authorities was prohibited under Rule 47 of the Central Excise Act, and that, since the bags were drenched completely in water, the question of processing or curing did not arise. Jn Ex. B.4, therefore, while again requesting the Chief Commercial Superintendent to settle his claim, the plaintiff also asked for a copy of the report forwarded by the Central Excise authorities. A reply to this letter was sent by the Chief Commercial Superintendent on 19-10-1956. He stated that the matter was under correspondence with the Central Excise authorities and further communication would follow. No communication appears to have been subsequently sent; so that' on 25-10-1956, the plaintiff again wrote to the Chief Commercial Superintendent as per Ex. B.7 for settlement of his claim within a week and informed him that if the claim was not settled he would be forced to take legal action against the railway. This was followed by other letters. In their reply, E.x A.10, the railway informed the plaintiff that the beedi tobacco in question was not packed in baskets or mats as required by the prescribed packing condition, P 10 applicable to the consignment in question, that the alleged damage was directly attributable to non-compliance of the said packing condition, and that, further, the consignment was booked at the 9th class rate at owner's risk the conditions of which absolved the railway from all liability for loss, destruction, deterioration or damage to goods arising from any cause whatsoever, except upon proof of negligence or misconduct on the part of the railway or its servants under the provisions of Section 74-C of the Railways Act; the ultimate result of the stand taken by the railway was the issue of suit notice on behalf of the plaintiff as per Ex. B.5 dated 4-10-1957 and the institution of the suit on 4-1-1958 for recovery of Rs. 15,169-39 nP. as damages formisconduct and gross negligence on the part of the railway.

4. The railway filed a written statement to theaction setting out the plea already raised by it andfurther contending that the suit was barred bylimitation.

5. The learned Subordinate Judge framed five issues in the suit of which issue No. 4 raised the question whether the suit was in time and was not barred under Article 30 of the Limitation Act. The ether issues related to the pleas raised by the defendants that there was no privity of contract between the plaintiff and the defendants, that the tariff rules of packing were not complied with by the plaintiff, and that the railway was not guilty of misconduct or negligence. All these issues were found against the railway as either they were not seriously pressed or the evidence needed to come to a finding for the defendants was not placed before the Court. Indeed, as regards issue 3, the Court below was compelled to draw an adverse inference against the defendants under Section 114(g) of the Evidence Act, because on an order passed by the Court directing the defendants to produce the Wagon Movement registers and other documents, they did not choose to produce them in Court.

6. No circumstances have been placed before us by the learned counsel for the railways to hold that on the materials available to the learned Subordinate Judge, he was wrong in recording the findings in the manner done by him. The question, however, is whether the suit is barred by the statute of limitation.

7. This was a case of damage to, and not a case of non-delivery of, the goods. The appropriate Article of the Limitation Act applicable in the circumstances, is Article 30. The question is when does time begin to run against the plaintiff.

8. In paragraph 10 (a) of the plaint, the plaintiff has averred that since the defendant acknowledged its liability within the meaning of Section 19 of the Limitation Act, in the certificate of damages issued under the signature of the defendant's agent and official on 6-12-1956, and since the period of two months required for sending a notice to the defendant had to be excluded, the suit was within the time. The assessment of damage was on 6-12-1956. The certificate of damage was issued without prejudice and no liability was sought to be acknowledged by the document. The learned Subordinate Judge, relying on a Calcutta ruling reported in Balchand Badriprasad v. Union of India, (S) : AIR1957Cal666 took this view and held that mere ascertainment of damages in the certificate of damage, (Ex. A.8), by itself did not amount to acknowledgment of liability. Unfortunately, however, he did not consider the question with reference to Article 30 of the Limitation Act. Under Article 30 which, as we have stated, is the appropriate Article applicable to the case, the period fixed for a suit against a carrier for compensation for losing or injuring goods is one year from the time when the loss or injury occurs. There is no doubt evidence in this case that prior to the open delivery, the plaintjff had come to know, in a general way, that the tobacco had been wetted and damaged. But the exact nature of the injury and 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. This was on 6-12-1956.

A Bench of this Court has held in Union of India v. Sitaramiah, : AIR1962Mad349 , that for a suit for compensation for damages to goods against a carrier time will rununder. Article 30 of the Limitation Act from the date on which the consignee becomes aware of the damage, and that the date of repudiation of the claim by the carrier cannot be the starting point of limitation in such cases. Union of India v. S. K. Abdul Razack, AIR 1962 Mys 23 relied on for the respondent, was a case where bags of toor dhal arrived at the destination had been damaged by rain on the way. Open delivery was made to the consignee and the loss was estimated by the Commercial Inspector on 3-8-1952, But the suit for damages was filed on 12-8-1954, after the lapse of more than one year. The learned Judges of the Mysore High Court held, differing from the view taken by the Courts below that the limitation was saved on account of the acknowledgment of liability by the appellant, that the suit was clearly barred by limitation. We are in respectful agreement with this view. But the question as to when time begins to run against the plaintiff for the purpose of Article 30 of the Limitation Act was not considered in this case. That aspect has been gone into in : AIR1962Mad349 , and we respectfully agree with the view expressed by the learned Judges in the above case. Applying the said ruling, the period began to run against the plaintiff only from 6-12-1956. He is entitled to add on to this period the two months time prescribed for notice. The suit filed on 4-1-1958 is, therefore, within the time.

9. The decree and judgment of the Court below are accordingly set aside and the appeal is allowed with costs throughout.


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