DOMINION OF INDIA Vs. CENTRAL AERATING GAS COMPANY

JUDGEMENT

(1.) In this appeal against a decree awarding Rs. 3,300/- to the plaintiff as damages for causing wrongful destruction of the plaintiffs truck three questions have been raised by Sri Seth, learned counsel for the appellant: firstly, the suit is barred by limitation; secondly, the plaintiff is entitled, if at all, to get only Rs. 2,100//-; and thirdly, the plaintiff, being guilty of contributory negligence, is not entitled to any damages.

(2.) I propose to take up the question of limitation first. On that question the material facts, which cannot now be disputed, are that on July 19, 1946, at 3 a.m. the plaintiffs truck, laden with gas cylinders, reached the level Crossing No. 87, G. T. Road, Saharanpur; the gate of the level crossing was then closed for letting 3 U. P Frontier Mail pass from Saharanpur to Ambala; then the said train passed but the gate remained still closed; a few minutes thereafter a petrol driven lorry arrived at the scene and stood behind the plaintiff's truck; a person got flown from that lorry and went to the gate; the gateman then opened the gate and allowed the lorry to pass through, the plaintiffs truck, which was gas-driven, followed suit, but no sooner the truck could cross the upline, its engine collided against the incoming 6 Down Calcutta Mail from Ambala; the truck was completely smashed and became a total wreck. It has been found by the learned Civil Judge that the loss caused to the plaintiffs truck was due to the gross and wilful negligence of the gate-keeper employed by the appellant at the level crossing. The suit was filed on July 15, 1949, that is to say, long after the expiry of two years but just within three years from the date of the accident. The suit would be just within time if the limitation be three years; it would be beyond time if the limitation be two years. The learned Civil Judge is of the view that Article 49 of the Limitation Act applies to the case and that the limitation is accordingly three years. Sri Seth argues that Article 36, and not Article 49, applies to the case and that the limitation is only two years from the date of the accident. The parties do not rely on any other Article of the Limitation Act. The straight question, therefore, is: Whether Article 36 or Article 49 is applicable to the facts of the case. Article 36 reads:

(3.) Article 36 is comprehensively worded and would prima facie govern the present case unless Article 49 is applicable. Thus far there is no difficulty. But, says learned counsel for the plaintiff, that the words "wrongfully injuring" in Article 49 are wide enough to embrace the present case. Sri Seth, on the other hand, submits that those words, when construed in their context, as they ought to be, would not cover a case such as the present one. It is a trite saying that the words in a statute are to be interpreted according to their context. The words 'wrong fully injuring" are sandwitched between the two expressions "wrongfully taking" and "wrongfully detaining." In wrongful taking and wrongful detention the moveable property or a person passes or has passed to a third person. This context would suggest that the words "wrongfully injuring envisage a case where the wrongfully injured moveable property is in the hands of the third person and not in the hands of the owner thereof at the time of receiving in jury. That those words contemplate possession of moveable property by a third person at the time of causing in jury is also suggested by the immediate collocation of Article 49. It is directly associated with Article 48 which provides a limitation of three years for suits for specific moveable property lost, or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same. In the cases contemplated by Article 48 moveable property has passed from the hands of the rightful owner to the hands of a third person having no title to the property. The context of the words "wrongfully injuring" in Article 49 thus inclines me to take the view that those words apply to a case of wrongful injury to moveable property where it is injured in the hands of a third person but not in the hands of the rightful owner. In the present case the truck undoubtedly was in the hands of the plaintiffs servant; it was not in the hands of the appellant or the appellant's servant when it met with the accident. Article 49 would not, there fore, apply to the case, inevitably Article 36 would be applicable.