EAST INDIAN RAILWAY Vs. GOPILAL SHARMA

JUDGEMENT

(1.) This rule has been obtained by three Railway Companies, over whose systems the goods which were the subject matter of the suit were carried. The learned Munsif has given the plaintiff a decree for the first and third items in the plaint. The first item is for a sum of Rupees 35-11-6 the value of a bundle which was lost; this part of the claim is not disputed; the remainder is for a sum of Rs. 143-12-0 for damage caused to four other bundles in the course of transit. The rule has been pressed on three grounds : (1) that the suit was premature in view of the provisions of Section 80, Civil P.C., (2) that the suit is barred by Limitation. Paradoxical, though it may seem, it would appear that both these contentions are well founded, (3) that the learned Judge has not dealt properly with the question of misconduct. It is conceded by Mr. Das on behalf of the opposite party that the first ground is good in the case of petitioners 1 and 2. He, however, pointed out that it does not apply to petitioner 3 upon whom no notice need be served. This was conceded by Dr. Basak.

(2.) The question of limitation depends upon the date when time begins to run against the opposite party. The suit is governed by Art. 30, Limitation Act. The suit is one for compensation for injuring goods and it must be brought within one year of the time when the injury occurs. Dr. Basak first contended that time began to run from the date when the opposite party wrote a letter Ex. A, i. e., 9 June 1938. Clearly, time does not run from the date of the plaintiff's knowledge. There is ample authority for the proposition that time begins to run from the date when the injury was actually caused and that the burden of proving when the injury was caused rests upon the carrier. Regarded from this point of view the letter Ex. A, is very strong evidence to show that the injury was caused before 9 June 1938. The learned Munsif should have considered it from that point of view; but he omitted to do so from a mistaken opinion that time began to run when the company denied liability. It is not, however, necessary to send the case back in order that the learned Munsif may consider the effect of this piece of evidence. The delivery of the goods took place on 6 August. There, therefore, cannot be any doubt that the injury took place not later than this date. More than a year had elapsed before the opposite party sent notices under Section 80, Civil P.C., to petitioners 1 and 2. The suit was barred by limitation against all the petitioners on the date that it was actually filed.

(3.) On the third point, it is impossible for me to say that there is no evidence from which misconduct could be inferred; but the learned Judge has not dealt with it in a satisfactory way. If the evidence of D. W. 1 is disbelieved, the conclusion that the bundles got wet owing to negligence in the course of the journey would be almost irresistible. On the other hand, the opposite party did not examine the consignor and the petitioners could ask the Court to draw an inference that his evidence would not support the opposite party's case, that the articles were dry at the time of dispatch. The learned Munsif seems to have thought that the failure of the opposite party to examine the consignor was due to a dirty manoeuvre in order to get away from the effect of the risk note. Be that as it may, it would be necessary to consider the effect of the failure of the opposite party to examine him on the credibility of D. W. 1. As, however, the suit fails against the first two petitioners on the first ground and against all the petitioners on the second, no useful purpose would be served by remanding the ease. It appears to me extremely probable that the petitioners have had a lucky escape. I shall, therefore, not allow them any costs. The rule is made absolute and the decree is reduced to the sum of Rs. 35-11-6. Both parties will pay their own costs in both the Courts.