JUDGMENT
R.L. Anand, J.
1. This is a R.S.A. and has been directed against the judgment and decree dated 30.10.1979, passed by the District Judge, Sangrur, who allowed the appeal of the defendant – Union of India and set aside the judgment and decree dated 31.12.1977, passed by the Court of Senior Sub Judge, Sangrur, who decreed the money suit of the plaintiff-appellant for the realization of the amount of Rs. 2,255.40, with costs.
2. The brief facts of the case can be noticed in the following manner:-
3. M/s Kundan Lal Narain Dass, Commission Agents, Lehragaga, filed a money suit in the sum of Rs. 2,800/- and it was pleaded by the plaintiff that the plaintiff-firm is registered under the Indian Partnership Act and Raghbir Chand is one of the registered partners. An order was placed upon M/s Mittal Brothers, Calcutta, for 11 bundles of empty gunny bags from Hawra to Lehragaga vide Railway Receipt No.450245 on 4.10.1972, the goods were to be delivered on Railway Station, Lehragaga. The goods did reach Lehragaga on 3.11.1972. The plaintiffs were informed but they refused to take the delivery of the goods because they were burnt and not fit for use. Correspondence and exchanged between the plaintiff and the Superintendent, Northern Railway and ultimately on 19.5.1973, Claims Inspector arrived at Lehragaga Railway Station and assessed the loss, prepared the assessment report and estimated the loss at Rs. 2,255.40. Open delivery was given to the plaintiff on 19.5.1973 itself, the plaintiff also gave notice under Section 80 C.P.C. Hence, the plaintiff claimed a sum of Rs. 2,255.40 as principal amount by way of compensation and Rs. 544.60 by way of interest.
4. Notice of the suit was given to the defendant, who contested the suit mainly on the ground that the suit is not maintainable; that the plaintiff had no cause of action; that the suit was hopelessly barred by time and that the notice under Section 80 C.P.C. was not valid. The defendant also denied the other allegations of the plaintiff.
5. From the pleadings of the parties, the following issues were framed by the trial Court:-
“1. Whether the plaintiff is a firm registered under the Indian Partnership Act? OPP
2. Whether the damage to the consignment of 11 bundles of empty bags was due to accidental fire and not due to the negligence of the railways. If so, its effect? OPD
3. What is the extent of loss suffered by the plaintiffs? OPP
4. Whether the plaintiff is entitled to interest and if so, on what amount and at what rate and to what extent? OPP
5. Whether notice under Section 80 C.P.C. served by the plaintiff on the defendants is valid? OPP
6. Whether the suit is within limitation? OPP
7. Whether the suit is not maintainable in the present form? OPD
8. Whether the plaintiff has no cause of action? OPD
9. Relief.”
6. The parties led oral and documentary evidence and on the conclusion of the trial, all the material issues were decided in favour of the plaintiff and the suit of the plaintiff was decreed. With regard to issue No.6, the trial Court specifically held that the suit of the plaintiff is within limitation.
7. Aggrieved by the judgment and decree of the trial Court, the defendant Union of India filed an appeal before the District Judge, Sangrur, who for the reasons given in paras 9-A to 13, accepted the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff on the ground of limitation. Paras 9-A to 13 of the judgment of the first appellate Court, read as under:-
“9A. As I have already pointed out it is the clear pleading and therefore, the statement of Gainda Ram that the goods were received at Lehra on 3.11.1972 and when they were asked by the Station Master to take the delivery, they found the goods in burn condition. It is further established from the statement of Shri Om Parkash Station Master that the delivery of goods was taken by the plaintiff. On 23.11.1972 after paying the freight and the wharf age. The goods which were the subject of the consignment were bundles of the empty bags. The plaintiffs have thus found for themselves the goods to be in burnt condition on 3.11.1972 and at any rate on 23.11.1972. The damages to the goods is thus established from this evidence to have occurred prior to 23.11.1972.
10. Article 10 of the Limitation Act which is in the same terms as Article 30 of the Repealed Act, reads as under: –
10. Against a carrier for Three Year When the loss
compensation for losing or or injury occurs.
injuring goods
The limitation thus begins to run from 23.11.1972 the date the plaintiff took the delivery and had the full opportunity of examining the goods which were the subject of consignment.
11. It has been urged by the learned counsel for the plaintiff-respondent that it was for the railway authorities to establish the date of damage to the goods and also to prove that the suit was beyond the period of three years from that date. Reliance has been placed on the observations of their Lordships of Supreme Court in A.I.R. 1962 Supreme court 1879. In A.I.R. 1971 Patna 24, the above quested Supreme Court authority was followed and the period of limitation was held to run from the date the open delivery was given. In A.I.R. 1972 Allahabad 192 the facts were that two out of three cases consigned were delivered. With respect of a third case, open delivery was taken and it was held that the loss of goods could not be considered to have occurred on the date the goods had reached the destination but on the date when open delivery of the goods was given and the loss was detected. In A.I.R. 1955 Calcutta 448, it was held that where the goods carried by rail and the loss or injury occurs in the course of such transit, the onus to prove the date of loss or injury is on the railway and in the absence of said circumstantial evidence, on its part, on this point the date of delivery to the party should be taken as relevant date of injury and as starting point of limitation under Article 30. In A.I. R. 1971 Madras 34, it was held that the period under Article 30 runs from the date of knowledge of the damage and not of quantification of the damages.
12. In the present suit, it has been established that on 23.11.1972, the delivery of the goods were taken by the plaintiffs and thereafter, the goods were no linger in the possession of the railways. The loss came to the knowledge and notice of the plaintiff on that day and the loss had definitely occurred to the goods before that date. Even if the defendants could not prove by definite evidence as to the exact date of the loss to the consigned goods, the evidence brought on record definitely establishes that the loss had occurred prior to 23.11.1972 and had come to the notice and knowledge of the plaintiffs on that date. The non removal of the goods from the premises of the railways after the delivery has no relevancy for determining the date from which the limitation begins to run. This limitation could not be arrested and postponed to 19.5.1973 when the damages were assessed by Commercial Inspector.
13. The plaintiffs also relied upon the report of the Commercial In Spector by way of acknowledgement of the railways. The defendants have denied that the Commercial Inspector was competent to grant the liability on behalf of the Railways. It is a definite statement of PW4 Tirlok Singh who was the Commercial Inspector that the report made by him was without prejudice. In 1957 (A.I.R) Calcutta 666, it was held that the ascertainment of the quantum of damages by Goods Supervisor unaccompanied by admission of Railways that the negligence or misconduct of its officers was responsible for the damages cannot be said to be an acknowledgement of liability within the meaning of Section 19 of the Limitation Act. The above said principle applies to the present suit. It having not been established that a clear admission had been made by the Commercial Inspector and that he was authorised to grant the liability on behalf of the Northern Railway, the report of the Commercial Inspector cannot be deemed to be an acknowledgement for the purposes of limitation.”
8. The learned counsel for the appellant has assailed the judgment and decree of the first appellate Court by submitting that the suit of the plaintiff was within limitation. The cause of action arose to the plaintiff not only on 3.11.1972 but also on 19.5.1973 when the assessment report was made by the employees of the Union of India and the damage to the goods was assessed. The counsel submitted that it was not a case of non delivery of the goods but it is a case of compensation as a result of loss which has been suffered by the plaintiff on account of the goods having been spoiled when those goods were under the control of the defendant.
9. On the contrary, the counsel for the respondent submitted that the cause of action arose to the plaintiff on 3.11.1972 when the plaintiff was informed about the arrival of the goods at Railway Station, Lehragaga, and the suit of the plaintiff was time barred.
10. I do not concur with the submissions raised by the counsel for the respondent. In this case, the cause of action also arose to the plaintiff on 19.5.1973. Assessment of damage was an integral part of the cause of action and without the assessment of the damage, the plaintiff could not institute the suit. The damage was assessed for the first time on 19.5.1973 and from that date, the case of action arose to the plaintiff and, as such, the suit could be instituted within 3 years and 2 months by giving the benefit of the notice under Section 80 C.P.C. In the present case, the suit was instituted on 25.5.1976. The suit is within limitation. In this view of the matter, I am of the considered opinion that the first appellate Court committed a patent illegality by not interpreting the correct position of the law on the point of limitation.
11. Resultantly, the appeal is allowed, the judgment and decree of the first appellate Court is set aside and that of the trial Court is restored and money decree for a sum of Rs. 2,255.40 with costs through out is granted in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.