UNION OF INDIA Vs. RAMESHWAR DAS PANNA LAL

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit for recovery of a sum of Rs. 1146/- with interest pendents lite in the following circumstances : On 5-8-1955, 200 bags of sugar were booked under invoice No. 5R/R-No. 563296 Ex. Majhaulia to Patna Ghat, The plaintiff was the owner of that consignment. The consignment reached Patna Ghat On 12-8-1955 and on 13-8-1955 the plaintiff's representative went So the railway station for taking delivery of those bags. He, however, found that 10 bags of sugar were wet and damaged by rain water and as such the contents of those bags were quite unfit for human consumption. He further noticed that 3 bags of sugar were cut and loose and it appeared to him that the contents thereof were taken away. The plaintiffs' representative brought these facts to the notice of the Station Master and requested him by a letter dated 13-8-1955, to make assessment of the damage and give an open delivery of the consignment. He, however, took delivery of 187 bags on that date inasmuch as the Claim Inspector was not available at the spot for making an assessment. On 7-9-1955 the plaintiff requested the Station Master to make arrangement for assessment and an open delivery and on 16-9-1955 the plaintiff's representative again went to the railway station for taking delivery of the remaining bags, but he was told that only 11 bags were lying there. The railway authorities refused to give a certificate in respect of the shortage of two bags and they further declined to make an assessment of the damage in respect of the other bags unless they were accepted on giving a clear receipt The plaintiff sent several letters to the higher authorities but with no effect. On 21-1-1956 the Divisional Superintendent, Dinapore, wrote to the plaintiff intimating that 11 bags were lying at the destination station and he had directed the Claim Inspector, Kiul, to make an assessment and give delivery after realisation of the wharfage. The plaintiff sent a letter dated 9-1-1956 denying the liability to pay any wharfage The plaintiff sent other letters on 20-2-1956 and 2-4-1956 to other authorities of the railway requesting them to look into the matter, but they took no step. The plaintiff alleged that on account of the non-delivery of 13 bags of sugar, there was a loss of Rs. 1146/- and the railway failed to assess damages and pay compensation in spite of the service of various notices. On these allegations, the plaintiff instituted the suit out of which this appeal arises on 3-12-1956. The Union of India, (the defendant), contested the suit on grounds, inter alia, that it was barred by limitation and the plaintiff was not entitled to make any claim inasmuch as there was no justification for asking for an open delivery of the eleven bags of sugar. A further plea was taken that in spite of the service of notices under Sections 55 and 56 of the Indian Railways Act, the plaintiff failed to take delivery of the eleven bags of sugar with the result that they had to be sent to the Lost Property Office, Howrah, for disposal by public auction and ultimately they were sold for Rs. 623/- on 26-10-1956, which the Railway Administration was prepared to pay after deducting the necessary charges. The Munsif held that out of the consignment in question, only 11 bags of sugar were not delivered to the plaintiff, but the suit was barred by limitation. Accordingly, he dismissed the plaintiff's suit. On appeal by the plaintiff, the Subordinate judge held that the suit was within time, but lie found that the plaintiff was not entitled to a decree in respect of the loss in profit to the extent of Rs. 104/-. In view of these findings, ho allowed the appeal in part setting aside the judgment and decree of the learned Munsif,

(2.) Learned counsel for the appellant has urged that the suit was barred by limitation inasmuch as it was filed beyond one year of the date when the plaintiff learnt that a few bags of sugar were damaged for some reason or other. According to him, the provisions of Article 30 of the Indian Limitation Act were applicable to the facts and circumstances of the present case and in support of his contention, he referred to the provisions of that Article and various decisions. Article 30 provides a period of one year for a suit for recovery of compensation in respect of a loss or injury to the goods and that period begins to run from a date when the loss or injury occurs. In the circumstances of the present case, this must is clear that when the plaintiff's representative went to the destination Station on 13-8-1955, he himself found that 10 bags of sugar were damaged by rain water and three bags were loose. The position, therefore, is that the loss or injury occurred sometime before 13-8-1955 and at least the plaintiff's representative learnt of that loss or injury on that date. The learned counsel referred to the decision in the case of Jwala Datt Gobind Ram v. Union of India, Railway Dept, AIR 1953 Pat 367. In that case, the consignment consisted of 700 tins of ground nut oil, out of which it was found at the time, of delivery on 28-10-1942, that 175 tins were badly damaged and were altogether empty. After correspondence, the Union of India rejected the claim on 21-9-1943 and the suit was then filed on 19-1-1944. The trial court decreed the suit but the lower appellate Court dismissed it holding that it was barred under Article 30 of the Indian Limitation Act. It was held that the time for that suit for compensation for the loss started running from 28-10-1942 and thus the suit was obviously barred under Article 30, inasmuch as it was filed more than a year after the date of the loss. It appears that when that consignment arrived at Ranchi and delivery was taken, all the 700 tins were found in the wagon but out of them 175 tins were damaged. It was not a case of non-delivery and On the facts of that case, it was held that the provisions of Article 30 were applicable. It was held in the case of East Indian Rly. v. Gopilal Sharma, AIR 1941 Cal 304, that in a suit against the carrier for compensation for injuring goods, time began to run from the date when the injury was actually caused and the burden of proving as to when the injury was caused rested upon the earrier. This decision was quoted with approval in the case of Union of India v. Gujrat Tobacco Co., AIR 1955 Cal 448, and it was held that the onus to prove the date of "loss or injury", mentioned in the third column of Article 30 was on the railway when the goods were carried by rail and in the event of its failure to discharge that onus, the date of delivery to the party should be taken as the relevant date of "loss or injury", or, in other words as the starting point of limitation under that Article. In Secy of State v. Neaz Ali-Hamid Ali, AIR 1935 All 407, as well, it was held that under Article 30 time begins to run from a perfectly definite date, that is when the loss or injury occurs and not from the date of open delivery. This decision was relied upon in the case of Dominion of India v. Batchu Ramiah Chetty and Sons, AIR 1951 Mys 68, and it was held that the period of one year fixed under Article 30 commences from the time when the loss or injury occurs and the said period could not be extended even if a party claiming damages chose to have some correspondence with the Railway Authorities for an open delivery of the goods. The learned counsel referred to some other un-reportecl decisions of this Court and I will now deal with them. First Appeal No. 180 of 1955, Dudhi Co-operative and Development Federation Ltd. v. The Union of India, decided on 23-11-1960 arose out of a suit for the delivery of sixteen bags of undelivered seed lac in perfect condition or, in the alternative, for the recovery of the price thereof and there was a further prayer in the suit for the recovery of a certain sum on account of deterioration of the 'delivered goods'. I have underlined the words 'delivered goods' (here in ' '). On the evidence adduced by the Railway Administration it was found that the goods were injured on 1-7-1951 and it was thus held that the claim on account of the deterioration of the delivered goods was barred under Article 30, inasmuch as the suit was filed on 21-10-1952. The distinction between that case and the present case is that even the deteriorated goods were delivered in that case, but the position in the present case which is the subject matter of the second appeal, is different. Second Appeal 790 of 1955, Zahoor Hussain v. Union of India decided on 5-11-1958 arose out of a suit for compensation on account of a loss incurred as a result of the leakage of oil from a wagon and it was held that the provisions of Article 30 were applicable to that case. The consignment was of about 250 maunds of mustard oil and it was booked at Kanpur Railway station for Bettiah. The wagon arrived at Bettiah and the delivery was taken of the mustard oil, but it was discovered that there was a shortage of about 30 maunds and odd of oil. The plaintiff had thus sued for the recovery of the compensation in respect of that shortage. It was not a case of non-delivery of the consignment and as such the provisions of Article 30 were applicable to that case. There was an application for leave to appeal under Clause 10 of the Letters Patent, but the leave was refused by Sahay J. on 2-3-1959. His Lordship, while refusing tie prayer, observed that the case was one in which loss was caused to the consignment of mustard oil sent to the plaintiff petitioner through the Railway and Article 30 of the Limitation Act admittedly applied to that case. The suit which gave rise to the Second Appeal No. 339 of 1953, Bihar Journals Ltd. v. Indian Union, decided on 26-8-1957, was instituted by the plaintiff for compensation, inasmuch as a consignment of rolls newsprint paper was considerably damaged in transit by fire and there was a further damage to it by water having been poured to extinguish the fire. It was held that the provisions of Article 30 were applicable to that case. It however, appears from the judgment itself, that the case of the plaintiff was that the goods were delivered in a damaged condition and it was not the case of any one that the railway had failed to deliver the goods within the period stipulated. This is the distinguishing feature between that case and the case in hand.

(3.) I will now refer to the two cases relied upon by the learned Subordinate Judge. The first one is Civil Revision No. 454 of 1957, Firm Harchand Rai Bansidhar V. Union of India, decided on 26-10-1959. It appears that in that case two bales of cloth had arrived at the Khagaria Railway station on 18-1-1955. One of them was delivered on 21-1-1955 but the other one was found damaged as such the plaintiff did not take delivery thereof. Ultimately the railway gave an open delivery of that bale to the plaintiff on 12th February, 1955, and it was found that 30 thans were short in that bale. The suit was then filed for damages in respect of the short delivery or non-delivery of those 30 thans. The small cause court judge took the view that limitation started on 18-1-1955 when the two bales arrived and they were ready for delivery and hence he held that the suit instituted on 3-4-1956 was barred by limitation. That view was reversed and it was held that the suit was not barred by limitation, inasmuch as the plaintiff came to know of that shortage of 30 thans on 12th February, 1955, when an open delivery of the damaged bale was made to it The second case is that of Union of India v. Textile Trading Co. AIR 1960 Pat 102. It appears that in that case, out of the 67 bales of cotton goods entrusted to the railway to be delivered to the plaintiff at Raxaul, only 64 bales were delivered to the plaintiff and certificate of shortage of three bales was granted to the latter. The plaintiff then filed a suit for damages on account of the non-delivery of a Part of the consignment and it was held that the period of limitation commenced from the time when the plaintiff's claim was rejected by the railway I find that there is another Division Bench decision of the court in the case of Union of India v. Jagatpal Darolia AIR 1960 Pat 340 which is on all fours, and I will refer to certain facts of that case. The plaintiff's case was that a consignment of Woollen fardis and hand-loom table cloths was booked from Amritsar to Jharia railway station for being delivered to the plaintiffs. The consignment arrived at Jharia on or about the 18th November, 1950 and when plaintiff No. 2 went to take delivery it was discovered that the consignment was in a torn condition and some of the Articles from the consignment had been removed. The parcel clerk refused to give delivery of the consignment and referred the matter to the claims Inspector at Dhanbad. After some correspondence plaintiff No. 2 asked for delivery of the consignment in open condition, but the claims Inspector also refused to give delivery and informed that plaintiff that the matter would be referred to the higher authorities. Ultimately there was no delivery of the consignment to the plaintiffs who had to institute a suit for realisation of damages from the defendant. The lower appellate court in that case had, held that the suit was not barred by limitation and hence the Union of India had preferred a second appeal. A contention was raised on behalf of the appellant (Union of India) that the suit was barred by Article 30 of the Limitation Act, but it was repelled and it was held that the proper article applicable was Article 31 and not article 30, inasmuch as the admitted position was that the consignment was not delivered at all to the plaintiffs at any stage. The allegation of the plaintiffs in that case as well, was that there was no delivery of the consignment at all, even in a damaged condition, and in those circumstances it was observed that the suit was governed by Article 31 of the Limitation Act.