F ACT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) PLAINTIFFS in O. S. No. 136 of 1980 on the file of the court of Addl. Subordinate Judge, Cochin, are the appellants in this appeal.

(2.) THE suit was for recovery of Rs. 30,544. 11 representing the insured value of two damaged Pan Segments. A consignment of four Pan segments C. I. Casting was consigned by M/s. Binny Ltd. , Madras, under R. R. No. 286115 dated 31-5-1977/1-6-1977 for carriage at railway risk and for delivery at Cochin Harbour Terminus to the consignee, the 1st plaintiff. On 30-6-1977 the consignment reached Cochin Harbour Terminus and when the 1st plaintiff went to take delivery of the same two pan segments were found broken. THErefore, the 1st plaintiff demanded open delivery of the consignment. Accordingly open delivery was given and the Divisional Commercial Inspector, Southern Railway, Cochin harbour Terminus issued a certificate of damage dated 9-7-1977. THE damage occurred as a result of negligence and careless handling of the Railway. Ist plaintiff launched a claim petition with the defendant in respect of the two damaged pan segments on 1-8-1977. On 15-5-1978 a claim was preferred to the Chief commercial Superintendent Southern Railway, for Rs. 35663. 18. Since the claim was not settled, a lawyer's notice was sent on 26-3-1980 to the General Manager of the defendant-Railway claiming Rs. 30,544. 11 towards the price of the two broken pan segments. THE defendant did not settle the claim and hence the suit

(3.) IN this appeal, learned counsel for the appellant challenged the finding of the trial court on the question of limitation. It is not disputed that the article which would apply to the case on hand is Art. 10 of the Limitation Act. It prescribes three years period for filing a suit against the carrier for compensation for loss or injury. The time from which period of limitation begins to run is stated to be when the loss or injury occurred. Delivery of the goods was on 9-7-1977. The suit was filed on 26-7-1980 i. e. beyond the period of three years. However, learned counsel for the appellant relied on the provisions contained in S. 15 (2) of the Limitation act and contended that the notice period of two months prescribed under S. 80 cpc for institution of a suit against the Government or against a public officer in respect of any act purporting to be done in his official capacity has to be excluded in view of S. 15 (2) of the Limitation Act. S. 15 (2) of the limitation Act 1963 provides that in computing the period of limitation for any suit of which notice has been given or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law for the time being in force, the period of such notice or as the case may be, the time required for obtaining such consent or sanction shall be excluded. It is not disputed that if two months are excluded then the suit was filed within the prescribed time. The lower court however held that the notice period of two months cannot be excluded. IN reaching this conclusion the lower court relied on the decision of the Supreme court in Amar Chand INani v. Union of INdia (AIR 1973 SC. 313 ). The Supreme court said: 7. S. 80 of the Civil Procedure Code provides, among other things, that no suit shall be instituted against the Central Government, where it relates to a Railway, until the expiration of two months next after notice in writing has been delivered to or left at the Office of the General Manager of the Railway. It was not open to the plaintiff-appellant to wait till the 29th of December, 1958, for delivery of the notice and say that till the expiration of the two months from that date, no suit could be filed and that the suit is therefore, within the period of limitation though filed after 1 year and two months from the date when the injury was committed. S. 80 only prescribes a condition precedent for the institution of the suit and has nothing to do with the period of limitation for a suit except that under s. 15 (2) of the Act, the period of notice can be deducted in calculating the period of limitation. " IN my view there is nothing in the above decision to support the view taken by the lower court. On the other hand it really supports the contention of the counsel for the appellant that notice period is liable to be excluded in reckoning the period of limitation.