1. This appeal has been filed on behalf of the plaintiff who had brought a suit for compensation arising out of a damage caused to a consignment despatched by defendant No. 3 from Ankapalle railway station on the M. S. M. Railway on the 6th of October 1942, to the plaintiff to be delivered at Ranchi railway station on the B. N. Railway. The consignment consisted of 700 tins of ground nut oil, out of which at the time of delivery on 28-10-1942, it was found that 175 tin’s were badly damaged and were altogether empty.
2. The respondents pleaded a number of defences including one of limitation.
3. The first Court decreed the plaintiff’s suit. On appeal the learned Additional Subordinate Judge dismissed the suit on the ground of limitation. It has been held that the suit is barred under Article 30 of Schedule 1, Limitation Act.
4. Mr. Mitter, learned Counsel appearing on behalf of the appellant, has submitted that after the delivery was taken on 28-10-1942, his client had to engage himself in correspondence with the defendant companies, and ultimately on 21-9-1943, the claim was rejected by the defendant No. 1. The suit having been filed, it is Said on 19-1-1944, it was not barred by limitation.
5. Mr. Mitter contends that the limitation in this case would run from 21-9-1943, the date when the claim, of the plaintiff was finally rejected by the B. N. Railway Company. In my judgment, there is no substance in this contention. Article 30, Schedule 1, Limitation Act, prescribes one year from the date when the loss or injury occurs ‘against a carrier for compensation for losing or injuring goods’. When the consignment arrived at Ranchi and delivery was taken on 28-10-1942, all these 700 tins were found in the wagon. Out of these 700 tins, 175 tins were, however, empty. The question arises, whether in the condition in which the consignment arrived, there was any room left for doubt as to the contents of the 175 tins; the 175 tins were found in damaged condition, and the only reasonable inference was that the contents of those tins had been lost due to leakage. Therefore, the loss was due to leakage before the delivery was taken; the leakage might be during the whole course of transit from the station of despatch to the station of destination.
6. The loss, therefore, must have been previous to the time the delivery of the other tins was taken. In that view of the matter, the plaintiff need not have waited to be told that the contents of the 175 tins had been lost. If that were so, then in my judgment, the time for a suit for compensation for the loss started running latest on 28-10-1942, and the suit having been filed on 19-1-1944, it was obviously barred under Article 30 mentioned above as having been filed more than one year after the date of loss.
7. In the view which I have taken, it is not at all necessary to refer to a number of cases decided on the applicability or otherwise of Article 31, Schedule 1, Limitation Act. but as some of the cases have bearing upon the view which I have taken, I would like to menlion them. Before I do that, I would like to mention that Article 31 prescribes one year for a suit from the date when the goods ought to be delivered ‘against a carrier for compensation for non-delivery of, or delay in delivering goods.’ It will be Seen that the two Articles 30 and 31 are quite different: one refers to the loss or injury to the goods, the other refers to non-delivery or the delay in delivering the goods. In the one case, the goods have been either lost or damaged and in the other the goods have not been delivered, or there has been, delay in delivering the goods.
8. Mr. Mitter has referred me io a decision of this Court in — B. & N. W. Rly. Co. Ltd. v. Kameshwar Singh’, AIR 1933 Pat 45 (A). That was, a case where Article 31 was held applicable on the facts of that case. In that case, on the 27-8-1922, a consignment of 3,229 bundles of round steel rod’s weighing 851 maunds and also four wooden frames were despatched from Ramkristapur railway station on the East Indian Railway to Muktapur railway station on the Bengal and North Western Railway. The delivery was made in 3 instalments on the 14-9-1922, 20-9-1922 and 21-9-1922. It was found that there was a shortage of 248 maunds, and further the wooden frames were delivered by a road-van on 5-10-1922. There was correspondence between the plaintiff of the suit and the railway company.
It was contended on behalf of the railway company in that case that the suit having been brought on 4-10-1923, it was more than one year from 21-9-1922, the last date of delivery, and it was held that Article 31, Schedule 1, Limitation Act would apply; and as the wooden frames were delivered on 5-10-1922, the suit could not be said to be beyond one year and the limitation was further saved because the defendant company had not made the position about non-delivery clear to the plaintiff until a long time after. In that case the plaintiff could not have known that it was a case of loss when the deliveries were taken of a major portion Of the consignment and he had to wait to know whether the railway company was in a position to deliver the non-delivered parts of the consignment. The other Patna case referred at the bar was — ‘Rameshwar Dass Mali Ram v. East Indian Rly. Co. Ltd.’, AIR 1923 Pat 298 (B), decided by Ross J. In that case the consignment was delivered short by 5 bags in November, 1920 and the suit was brought on 11-2-1922. It was on the 7-9-1921, that the plaintiff was informed by the railway company that 5 bags had been lost. On the facts of that case, it was held that the suit was barred under Article 30 of the Limitation Act, and his Lordship held, following — ‘G. W. Rly. Co. v. Wills’, (1917) AC 148 (C), that, “non-delivery of the consignment means non-delivery of the consignment as a whole as contrasted with short delivery.” With great respect I feel doubt about the correctness of that decision.
9. Even in cases of short delivery, the question of non-delivery may be involved but I do not like to deal with the matter any further because it is not necessary to do so to dispose of the present case. Another decision of this Court referred to is that of — ‘Gopi Ram Gouri Shankar v. G. I. P. Rly. Co.’, AIR 1927 Pat 335 (D). This again was a case of non-delivery where 5 bags of flour out of 250 bags were not delivered, and it was held that Article 31 applied. Their Lordships also held that where the major part of a consignment had been delivered, the balance of the consignment ought to be deemed to have been delivered on the very day and limitation would start running from the day when the major portion of the consignment was delivered. In my judgment, that decision, with great respect to the learned Judges, does not appear to me to be correct. If 5 bags were not delivered, the reason of non-delivery may be more than one. The 5 bags may have been mis-delivered, or they may have been misdirected, or they might not have been despatched along with the major portion of the consignment and might still be with the carrier. In such a case, the railway company concerned had to trace out the non-delivered 5 bags of flour, and the date of refusal by the railway company either to deliver the non-delivered 5 bags or to state that the 5 bags were lost, would ordinarily be the date from which the time would run under Article 31 of the Limitation Act.
10. But as I have already indicated while referring to the case of — ‘AIR 1923 Pat 298’ (B), it is not necessary in this case to consider in any greater detail the authority of these cases. Mr. Mitter has also referred to — ‘Rajgarh Jute Mills Ltd. v. Commrs. for the port of Calcutta’, AIR 1947 Cal 98 (E) and — ‘M. A.P. Palanichami Nadar v. Governor General of India in Council’, AIR 1946 Mad 133 (F). The former was a case of non-delivery of one wagon of jute out of 4 wagons and Article 31 was held to be applicable to that case, and the latter was also a case of non-delivery. In both these cases the view taken by this court in –‘AIR 1923 Pat 298’ (B) and — ‘AIR 1927 Pat 335’ (D) has not been followed and this Court’s view expressed in — ‘AIR 1933 Pat 45’, (A) was held to be a good law.
11. In Article 30, Schedule 1, Limitation Act, the expression ‘against a carrier for losing or injuring goods’ suggests not a mere loss of the goods to the owner or to the consignee or to the consignor which may be caused by misdelivery or some other reason, but it means actual losing of the goods by the carrier himself. In the present case when the goods were delivered to the plaintiff, it must have been obvious to the plaintiff that it was a case where the carrier had actually lost the goods. In that view of the matter, in my judgment, the Court below is perfectly right in applying the provisions of Article 30, Schedule 1, Limitation Act, and holding that the suit is barred. I would accordingly dismiss this appeal with costs.