Carriers Act - Sec.10 -damage to the goods - no damage not applies - misappropriation - compensation for non-delivery of goods Limitation Act Art. 11 - 3 years applies - Limitation starts from the date of ought to be delivery of consignment - Suit for reimbursement from the defendant carrier is barred by limitation =
Though the goods were booked on 06.11.1993, they were not delivered to the 2nd plaintiff at Rajahmundry, as such, a Police complaint was given at III-Town Police Station, Rajahmundry on 23.11.1993, regarding non-delivery of consignment.
Basing on such complaint, a case was registered in Crime No.339 of 1993 and the lorry was reported undetected by the Police, on 04.08.1994.
The consignor-2nd plaintiff, who insured the goods with the 1st plaintiff
as per the policy bearing No.602307/21/26/00201/93, gave a declaration, dated
06.11.1993, estimating the value of goods booked at Rs.6,00,000/- and the 2nd
plaintiff preferred claim of Rs.6,00,000/- by addressing the defendant by way of
Letter, dated 9th December 1993, but there was no reply from the defendant.
The 1st plaintiff, as an insurer, has settled the claim of 2nd plaintiff
at Rs.5,78,471/- as assessed by the surveyor, namely, "One Season Services Pvt.
Ltd.", and obtained letter of subrogation and special power of attorney from the
2nd plaintiff.
Thereafter, the 1st plaintiff has issued notice to the defendant
on 09.09.1996, demanding payment of Rs.5,78,471/-, which was settled in favour
of 2nd plaintiff, but as there was no response, suit is filed for recovery of an
amount of Rs.8,49,571/- including interest at the rate of 24% per annum.=
As per Section 10 of the Carriers Act of 1865, no suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
Article 11 of the Indian Limitation Act,
1963, which reads as under :
"-------------------------------------------------------------------------
----------
Description of suit Period of Time from
which
limitation period begins to run
------------------------------------------------------------------------
-----------
Against a carrier for Three years When the goods
compensation for ought to be
non-delivery of, or delay delivered.
in delivering goods.
------------------------------------------------------------------------
----------" =
On appreciating the oral and documentary evidence on record, the trial
Court rejected the contention of defendant that it is not a common carrier but
is only a lorry broker, and thus, held that it falls within the definition of
"common carrier".
But, with regard to the limitation aspect, the trial Court
has recorded a finding that the claim of plaintiffs is barred by limitation,
as much as they failed to file the suit by 9th December 1996, but it was filed
after expiry of 3 years period stipulated in Article 11 of the Indian Limitation
Act, 1963. With regard to limitation, the trial Court has relied on Ex.A-2 and
recorded a finding that the 1st plaintiff gave Police complaint on 23.11.1993 at
III-Town Police Station, Rajahmundry, with a request to take action in the
matter and to trace the goods.
Basing on the recitals under Ex.A-2, the trial
Court found that the consignment was to reach Mangalore, in any case, by
10.11.1993, therefore, the cause of action arose to the plaintiffs on the next
date i.e. 11.11.1993 as the time begins to run from the said date under Article
11 of the Indian Limitation Act.
Though the appellant/plaintiffs rely on Ex.A-
7, alleging that there is an acknowledgment by the defendant on 10.12.1994 that
the goods were not delivered by the said date, having regard to the language
used in the same, it cannot be termed as an acknowledgment so as to consider it
as a fresh cause of action for filing the suit.
While holding so, the trial
Court has dismissed the suit on the ground of limitation.
whether the suit filed by the plaintiffs for recovery of money is
within the limitation, as prescribed by the Indian Limitation Act, 1963 or not.
As it is not the case of appellants that there is loss
or injury to the goods, so as to compute the limitation from the date of
confirmation by the Police, we reject such contention advanced by the learned
counsel for appellants.
Similarly, we also reject the contention that Ex.A-7
gives a fresh cause of action for filing the suit.
Ex.A-7 is a mere
confirmation by the defendant with regard to non-reaching of the vehicle and it
need not be taken as a fresh cause of action for the purpose of starting point
of limitation under Article 11 of the Indian Limitation Act of 1963.
Looking
from any angle, we are of the view that the findings recorded by the trial Court
are based on the evidence on record and are in conformity with the view taken by
the Hon'ble Supreme Court in the judgments relied on by the learned counsel for
respondent/defendant.
For the aforesaid reasons, we do not find any merit in this appeal and it
is accordingly dismissed. No order as to costs.
HON'BLE SRI JUSTICE R.SUBHASH REDDY AND HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.476 of 2002
Date: 07-10-2013
M/s.National Insurance Co. Ltd., rep. by its Branch Manager No.II, Mangalore,
Karnataka & another....Appellants
Sri Maheswari Lorry Transport, Rajahmundry, rep. by its
Proprietor....Respondent
For the appellants:Sri Kota Subba Rao, Advocate.
For the Respondent:Sri K.Venkatesh, Advocate.
<Gist:
>Head Note:
?CITATIONS:
1. 2007 (2) ACJ 1360
2. 2002 (2) ACJ 1200
3. AIR 1962 SC 1716
4. AIR 2000 SC 3634
HON'BLE SRI JUSTICE R.SUBHASH REDDY
AND
HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.476 of 2002
JUDGMENT : (Per R.Subhash Reddy, J)
This appeal suit is filed under Section 96 of CPC, by the plaintiffs in
the suit in O.S.No.69 of 1997 on the file of learned Principal Senior Civil
Judge, Rajahmundry, aggrieved by the judgment and decree, dated 3rd October
2001, passed in the said suit. By the aforesaid judgment and decree, the suit
filed by the appellant/plaintiffs for recovery of an amount of Rs.8,49,571/-
with future interest, is dismissed.
The suit in O.S.No.69 of 1997 is filed with the following averments :
The 1st plaintiff is a Company registered under the Companies Act of 1956
and is engaged in the Insurance business, having its offices all over India.
The 2nd plaintiff is a Limited Company, having its registered office at
Mangalore. The Defendant is a proprietary concern, engaged in the business of
transportation.
The branch office of 2nd plaintiff at Rajahmundry engaged the
defendant for transportation of 441 tins of cashew kernels and other goods
valued at Rs.6,00,000/- and the defendant arranged the lorry bearing No.TSX 5002
for carrying goods from Meruvada village to Mangalore under lorry receipt No.B/1
and way bill No.2594, dated 06.11.1993.
The defendant charged Rs.8,320/- for
carrying the goods and collected an amount of Rs.3,820/- towards advance.
Though the goods were booked on 06.11.1993, they were not delivered to the 2nd plaintiff at Rajahmundry, as such, a Police complaint was given at III-Town Police Station, Rajahmundry on 23.11.1993, regarding non-delivery of consignment.
Basing on such complaint, a case was registered in Crime No.339 of 1993 and the lorry was reported undetected by the Police, on 04.08.1994.
The consignor-2nd plaintiff, who insured the goods with the 1st plaintiff
as per the policy bearing No.602307/21/26/00201/93, gave a declaration, dated
06.11.1993, estimating the value of goods booked at Rs.6,00,000/- and the 2nd
plaintiff preferred claim of Rs.6,00,000/- by addressing the defendant by way of
Letter, dated 9th December 1993, but there was no reply from the defendant.
The 1st plaintiff, as an insurer, has settled the claim of 2nd plaintiff
at Rs.5,78,471/- as assessed by the surveyor, namely, "One Season Services Pvt.
Ltd.", and obtained letter of subrogation and special power of attorney from the
2nd plaintiff.
Thereafter, the 1st plaintiff has issued notice to the defendant
on 09.09.1996, demanding payment of Rs.5,78,471/-, which was settled in favour
of 2nd plaintiff, but as there was no response, suit is filed for recovery of an
amount of Rs.8,49,571/- including interest at the rate of 24% per annum.
The defendant/Transporter, through its proprietor, has filed written
statement. While denying the various allegations of plaintiffs in the suit, it
was the case of defendant in the written statement that the Court has no
jurisdiction to try the suit and the claim of plaintiffs is hopelessly time-
barred. It is further pleaded that the defendant cannot be called as carrier
doing transport business. In the written statement, defendant also denied
undertaking of any such transportation as alleged and charging an amount of
Rs.8,320/- for carrying the goods and collecting Rs.3,820/- towards advance.
Precisely, it was the case of defendant before the trial Court that the
defendant was neither the consignor nor the consignee, but is a simple lorry
broker and his job ended when he took the lorry driver to the consignor. With
the above pleadings, the defendant has prayed for dismissal of suit.
On the basis of above pleadings, the trial Court has framed the following
issues:
"1.Whether the 2nd plaintiff engaged the defendant for transportation of 441
tins of Cashew Kernels and whether there is any negligence or misconduct on the
part of the defendant ?
2. Whether the 1st plaintiff is entitled to recover the suit amount as prayed
for ?
3. To what relief ?
On behalf of plaintiffs, Pws.1 to 3 were examined and Exs.A-1 to A-13
were marked, whereas, the Proprietor of the defendant-concern was examined as
DW-1.
On appreciating the oral and documentary evidence on record, the trial
Court rejected the contention of defendant that it is not a common carrier but
is only a lorry broker, and thus, held that it falls within the definition of
"common carrier".
But, with regard to the limitation aspect, the trial Court
has recorded a finding that the claim of plaintiffs is barred by limitation,
as much as they failed to file the suit by 9th December 1996, but it was filed
after expiry of 3 years period stipulated in Article 11 of the Indian Limitation
Act, 1963. With regard to limitation, the trial Court has relied on Ex.A-2 and
recorded a finding that the 1st plaintiff gave Police complaint on 23.11.1993 at
III-Town Police Station, Rajahmundry, with a request to take action in the
matter and to trace the goods.
Basing on the recitals under Ex.A-2, the trial
Court found that the consignment was to reach Mangalore, in any case, by
10.11.1993, therefore, the cause of action arose to the plaintiffs on the next
date i.e. 11.11.1993 as the time begins to run from the said date under Article
11 of the Indian Limitation Act.
Though the appellant/plaintiffs rely on Ex.A-
7, alleging that there is an acknowledgment by the defendant on 10.12.1994 that
the goods were not delivered by the said date, having regard to the language
used in the same, it cannot be termed as an acknowledgment so as to consider it
as a fresh cause of action for filing the suit.
While holding so, the trial
Court has dismissed the suit on the ground of limitation.
In this appeal, it is contended by Sri Kota Subba Rao, learned counsel
appearing for the 1st appellant-Company that three years period is to be
computed from the date of confirmation of loss by the defendant. It is further
submitted that the goods under dispute should be treated to have lost from the
date when the Police gave a certificate that the goods lost could not be
recovered. It is pleaded that as the Police gave such certificate only on
04.08.1994 under Ex.A-3, the suit is filed on 19.03.1997, as such, it is well
within time.
The learned counsel has further submitted that under Ex.A-7, the
defendant-Company has confirmed that goods were not delivered, and as the suit
was filed within three years from the date of Ex.A-7, it is well within
limitation, but the trial Court has not considered the issue of limitation in
proper perspective.
The learned counsel has placed reliance on the judgment of
Hon'ble Supreme Court in the case of M/s.Transport Corporation of India Ltd. Vs.
M/s.Veljan Hydrair Ltd.1 and also on the judgment of Gujarat High Court in the
case of Kirankumar Kamalkumar Vs. Himmat Transport Service & another2.
On the other hand, it is submitted by the learned counsel appearing for
the respondent/defendant that even according to the case of plaintiffs, goods
were booked on 06.11.1993, and in ordinary course, they were to be reached
Mangalore by 10.11.1993, as such, the limitation period starts from the
aforesaid date.
It is further submitted that it is a case of compensation for
non-delivery of goods, and as per Article 11 of the Indian Limitation Act, 1963,
the period of limitation is three years from the period when the goods ought to
have been delivered.
It is submitted that the judgments relied on by the
learned counsel for appellants are not applicable to the facts of the case. The
learned counsel has placed reliance on the judgments of Hon'ble Supreme Court in
the case of Boota Mal Vs. Union of India3 and in the case of M/s.Bhagwan Dass
Rama Shanker (dead) through L.Rs. Vs. Union of India & others4.
Having heard learned counsel for the parties, we have also perused the
material on record.
As issue No.1 in the suit was decided in favour of plaintiffs and as there
was no appeal by the respondent/defendant, it is not necessary to go into the
said issue in this appeal. The only question which falls for consideration in
this appeal is whether the suit filed by the plaintiffs for recovery of money is
within the limitation, as prescribed by the Indian Limitation Act, 1963 or not.
As evident from Ex.A-1, the consignment was booked on 06.11.1993 at
Maruvada village near Tuni in East Godavari District of Andhra Pradesh and it
was to be delivered at Mangalore of Karnataka State, but it did not reach the
factory of 2nd plaintiff at Mangalore even after the lapse of 15 days from the
date of its booking.
It is also not in dispute that the 2nd plaintiff gave a
complaint at III-Town Police Station, Rajahmundry on 23.11.1993, suspecting
misappropriation of goods by the driver of the vehicle.
The 2nd plaintiff also
addressed a letter to the defendant on 9th December 1993, intimating that the
lorry did not reach the factory at Mangalore even by that date. Ex.A-4 is the
copy of the letter, dated 9th December 1993.
It is true that in the crime
registered in Crime No.339 of 1993, Ex.A-3 proceedings were issued by the Police
on 04.08.1994, stating that the lorry could not be detected. It is also
relevant to note that the defendant had issued Ex.A-7 letter, dated 12.10.1994,
confirming that the lorry did not reach the destination.
As the goods booked by
the 2nd plaintiff were insured with the 1st plaintiff, the 1st plaintiff-insurer
has paid the value basing on the assessment of value of goods which were not
delivered at destination point. It is also to be noticed in this case that the
suit is filed on 19.03.1997.
Having regard to the pleadings and evidence on record, it is the case for
recovery of amount towards compensation for non-delivery of goods booked by the
2nd plaintiff, insured with the 1st plaintiff, therefore, the period of
limitation in this case, is governed by Article 11 of the Indian Limitation Act,
1963, which reads as under :
"-------------------------------------------------------------------------
----------
Description of suit Period of Time from
which
limitation period begins to run
------------------------------------------------------------------------
-----------
Against a carrier for Three years When the goods
compensation for ought to be
non-delivery of, or delay delivered.
in delivering goods.
------------------------------------------------------------------------
----------"
Various dates and events in this case are not in dispute, but the 2nd appellant
claims that as the goods were not delivered at the destination point, they were
to be treated as lost and the period of limitation is to be counted from the
certificate given under Ex.A-3 by the Police on 04.08.1994. It is the case of
appellants that only from the said date, it is to be construed that the
plaintiffs have suffered loss and injury and as the suit is filed within three
years from the date of Ex.A-3, it is well within the period of limitation.
Ex.A-2, which is the complaint made by the plaintiffs to the III-Town Police at
Rajahmundry, is relevant for the purpose of deciding the issue of limitation.
The said complaint reads as under :
"The said lorry in the usual course has to reach at Mangalore by 10-11-
1993, but on enquiries and by Telephone calls at our Head Office we came to know
that the lorry has not reached Mangalore as per the enquiries on 11.11.1993 and
continuously, we have enquired on all dates till today whether the lorry with
goods has reached to Mangalore and as the delay may occur due to heavy rains in
the Andhra Pradesh and Karnataka and Madras (Tamilnadu). But to our surprise
the lorry has not reached till yesterday evening i.e. 18-11-1993."
From the aforesaid complaint, it is clear that the goods were booked on
06.11.1993, and the lorry was to reach Mangalore by 10.11.1993, but it did not
reach Mangalore even by one day prior to the date of filing of complaint, which
was filed on 23.11.1993.
As it is never the case of plaintiffs that either the
goods were lost or any damage was caused to the goods booked by them, it is a
clear case where plaintiffs claimed compensation for non-delivery of goods, in
which event, only Article 11 of the Indian Limitation Act, 1963 will apply.
If
said Article 11 is to be applied, the limitation starts from the date when the
goods ought to have been delivered. The judgment relied on by the learned
counsel for respondent/defendant in Boota Mal's case (3 supra) supports his
case. In the aforesaid judgment, while considering identical issue under
Article 31 of the Limitation Act, 1908 (Act 9 of 1908), which corresponds to
Article 11 of the Limitation Act, 1963, in clear terms, the Hon'ble Supreme
Court has held that the time would run after elapsing of reasonable time, on the
expiry of which, delivery ought to have been made.
Even in the case of
M/s.Bhagwan Dass Rama Shanker (4 supra), it was held by the Hon'ble Supreme
Court that the time of delivery of goods to the consignee has to be ascertained
from the terms of contract between the consignor and the consignee and the
carrier, and in the absence of any contract, express or implied, the normal time
of delivery of goods is to be determined having regard to the nature of carrier,
distance and other relevant factors on the facts of each case. Coming to the
facts of the case on hand, as evident from Ex.A-2, goods were booked on
06.11.1993 and they were to reach Mangalore by 10.11.1993. The complaint under
Ex.A-2 itself was filed before the Police on 23.11.1993, and even in the said
complaint, it is categorically pleaded that the goods were not delivered even by
that time. Article 11 of the Limitation Act, 1963 deals with both the cases of
non-delivery of goods as well as the delay in delivering the goods, and in
either case, the starting point for limitation is after reasonable time is
elapsed for carrying the goods from the place of transport to the place of
destination. In this case, goods were dispatched from Maruvada village in
Andhra Pradesh, to be delivered at Mangalore in Karnataka State. Having regard
to the distance, and further, based on Ex.A-2, even according to the plaintiffs,
the goods were to be delivered by 10.11.1993. By applying the judgment of
Hon'ble Supreme Court in Boota Mal's case (3 supra), reasonable time is to be
gauzed having regard to the facts and circumstances of each case. Unless some
circumstances are shown by way of cogent evidence that goods could not have been
reached for the reasons beyond human control i.e. like damage of bridges or
roads etc., for the purpose of computing the period of limitation, Article 11 of
the Indian Limitation Act, 1963 is to be taken into consideration, and as
admitted by the plaintiffs, the reasonable time for reaching the goods at
destination i.e. Mangalore, would have been by 10.11.1993. Even the complaint
was also lodged with the Police at III-Town Police Station, Rajahmundry on
23.11.1993, and even from that date also, suit was not filed within the period
of three years, but it was filed only on 19.03.1997, after the expiry of three
years period as prescribed under Article 11 of the Indian Limitation Act, 1963.
Thus, by applying the above said provisions, we are of the view that the
Tribunal has correctly appreciated the evidence on record and recorded the
finding that the suit claim is barred by limitation.
Though the learned counsel for appellants has placed reliance on the
judgments of Hon'ble Supreme Court in the case of M/s.Transport Corporation of
India Ltd. (1 supra) and in the case of Kirankumar Kamalkumar (2 supra), the
said judgments are with reference to a provision under the Carriers Act of 1865.
As per Section 10 of the Carriers Act of 1865, no suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
Having regard to
the language used under Article 11 of the Limitation Act of 1963, the judgments
relied on by the learned counsel for appellant/plaintiffs, which are with
reference to the provision under Section 10 of the Carriers Act of 1865, are of
no help to their case.
As it is not the case of appellants that there is loss
or injury to the goods, so as to compute the limitation from the date of
confirmation by the Police, we reject such contention advanced by the learned
counsel for appellants.
Similarly, we also reject the contention that Ex.A-7
gives a fresh cause of action for filing the suit.
Ex.A-7 is a mere
confirmation by the defendant with regard to non-reaching of the vehicle and it
need not be taken as a fresh cause of action for the purpose of starting point
of limitation under Article 11 of the Indian Limitation Act of 1963.
Looking
from any angle, we are of the view that the findings recorded by the trial Court
are based on the evidence on record and are in conformity with the view taken by
the Hon'ble Supreme Court in the judgments relied on by the learned counsel for
respondent/defendant.
For the aforesaid reasons, we do not find any merit in this appeal and it
is accordingly dismissed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
_____________________
R.SUBHASH REDDY, J
_________________
A.V. SESHA SAI, J
dated:07-10-2013
Though the goods were booked on 06.11.1993, they were not delivered to the 2nd plaintiff at Rajahmundry, as such, a Police complaint was given at III-Town Police Station, Rajahmundry on 23.11.1993, regarding non-delivery of consignment.
Basing on such complaint, a case was registered in Crime No.339 of 1993 and the lorry was reported undetected by the Police, on 04.08.1994.
The consignor-2nd plaintiff, who insured the goods with the 1st plaintiff
as per the policy bearing No.602307/21/26/00201/93, gave a declaration, dated
06.11.1993, estimating the value of goods booked at Rs.6,00,000/- and the 2nd
plaintiff preferred claim of Rs.6,00,000/- by addressing the defendant by way of
Letter, dated 9th December 1993, but there was no reply from the defendant.
The 1st plaintiff, as an insurer, has settled the claim of 2nd plaintiff
at Rs.5,78,471/- as assessed by the surveyor, namely, "One Season Services Pvt.
Ltd.", and obtained letter of subrogation and special power of attorney from the
2nd plaintiff.
Thereafter, the 1st plaintiff has issued notice to the defendant
on 09.09.1996, demanding payment of Rs.5,78,471/-, which was settled in favour
of 2nd plaintiff, but as there was no response, suit is filed for recovery of an
amount of Rs.8,49,571/- including interest at the rate of 24% per annum.=
As per Section 10 of the Carriers Act of 1865, no suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
Article 11 of the Indian Limitation Act,
1963, which reads as under :
"-------------------------------------------------------------------------
----------
Description of suit Period of Time from
which
limitation period begins to run
------------------------------------------------------------------------
-----------
Against a carrier for Three years When the goods
compensation for ought to be
non-delivery of, or delay delivered.
in delivering goods.
------------------------------------------------------------------------
----------" =
On appreciating the oral and documentary evidence on record, the trial
Court rejected the contention of defendant that it is not a common carrier but
is only a lorry broker, and thus, held that it falls within the definition of
"common carrier".
But, with regard to the limitation aspect, the trial Court
has recorded a finding that the claim of plaintiffs is barred by limitation,
as much as they failed to file the suit by 9th December 1996, but it was filed
after expiry of 3 years period stipulated in Article 11 of the Indian Limitation
Act, 1963. With regard to limitation, the trial Court has relied on Ex.A-2 and
recorded a finding that the 1st plaintiff gave Police complaint on 23.11.1993 at
III-Town Police Station, Rajahmundry, with a request to take action in the
matter and to trace the goods.
Basing on the recitals under Ex.A-2, the trial
Court found that the consignment was to reach Mangalore, in any case, by
10.11.1993, therefore, the cause of action arose to the plaintiffs on the next
date i.e. 11.11.1993 as the time begins to run from the said date under Article
11 of the Indian Limitation Act.
Though the appellant/plaintiffs rely on Ex.A-
7, alleging that there is an acknowledgment by the defendant on 10.12.1994 that
the goods were not delivered by the said date, having regard to the language
used in the same, it cannot be termed as an acknowledgment so as to consider it
as a fresh cause of action for filing the suit.
While holding so, the trial
Court has dismissed the suit on the ground of limitation.
whether the suit filed by the plaintiffs for recovery of money is
within the limitation, as prescribed by the Indian Limitation Act, 1963 or not.
As it is not the case of appellants that there is loss
or injury to the goods, so as to compute the limitation from the date of
confirmation by the Police, we reject such contention advanced by the learned
counsel for appellants.
Similarly, we also reject the contention that Ex.A-7
gives a fresh cause of action for filing the suit.
Ex.A-7 is a mere
confirmation by the defendant with regard to non-reaching of the vehicle and it
need not be taken as a fresh cause of action for the purpose of starting point
of limitation under Article 11 of the Indian Limitation Act of 1963.
Looking
from any angle, we are of the view that the findings recorded by the trial Court
are based on the evidence on record and are in conformity with the view taken by
the Hon'ble Supreme Court in the judgments relied on by the learned counsel for
respondent/defendant.
For the aforesaid reasons, we do not find any merit in this appeal and it
is accordingly dismissed. No order as to costs.
HON'BLE SRI JUSTICE R.SUBHASH REDDY AND HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.476 of 2002
Date: 07-10-2013
M/s.National Insurance Co. Ltd., rep. by its Branch Manager No.II, Mangalore,
Karnataka & another....Appellants
Sri Maheswari Lorry Transport, Rajahmundry, rep. by its
Proprietor....Respondent
For the appellants:Sri Kota Subba Rao, Advocate.
For the Respondent:Sri K.Venkatesh, Advocate.
<Gist:
>Head Note:
?CITATIONS:
1. 2007 (2) ACJ 1360
2. 2002 (2) ACJ 1200
3. AIR 1962 SC 1716
4. AIR 2000 SC 3634
HON'BLE SRI JUSTICE R.SUBHASH REDDY
AND
HON'BLE SRI JUSTICE A.V.SESHA SAI
APPEAL SUIT No.476 of 2002
JUDGMENT : (Per R.Subhash Reddy, J)
This appeal suit is filed under Section 96 of CPC, by the plaintiffs in
the suit in O.S.No.69 of 1997 on the file of learned Principal Senior Civil
Judge, Rajahmundry, aggrieved by the judgment and decree, dated 3rd October
2001, passed in the said suit. By the aforesaid judgment and decree, the suit
filed by the appellant/plaintiffs for recovery of an amount of Rs.8,49,571/-
with future interest, is dismissed.
The suit in O.S.No.69 of 1997 is filed with the following averments :
The 1st plaintiff is a Company registered under the Companies Act of 1956
and is engaged in the Insurance business, having its offices all over India.
The 2nd plaintiff is a Limited Company, having its registered office at
Mangalore. The Defendant is a proprietary concern, engaged in the business of
transportation.
The branch office of 2nd plaintiff at Rajahmundry engaged the
defendant for transportation of 441 tins of cashew kernels and other goods
valued at Rs.6,00,000/- and the defendant arranged the lorry bearing No.TSX 5002
for carrying goods from Meruvada village to Mangalore under lorry receipt No.B/1
and way bill No.2594, dated 06.11.1993.
The defendant charged Rs.8,320/- for
carrying the goods and collected an amount of Rs.3,820/- towards advance.
Though the goods were booked on 06.11.1993, they were not delivered to the 2nd plaintiff at Rajahmundry, as such, a Police complaint was given at III-Town Police Station, Rajahmundry on 23.11.1993, regarding non-delivery of consignment.
Basing on such complaint, a case was registered in Crime No.339 of 1993 and the lorry was reported undetected by the Police, on 04.08.1994.
The consignor-2nd plaintiff, who insured the goods with the 1st plaintiff
as per the policy bearing No.602307/21/26/00201/93, gave a declaration, dated
06.11.1993, estimating the value of goods booked at Rs.6,00,000/- and the 2nd
plaintiff preferred claim of Rs.6,00,000/- by addressing the defendant by way of
Letter, dated 9th December 1993, but there was no reply from the defendant.
The 1st plaintiff, as an insurer, has settled the claim of 2nd plaintiff
at Rs.5,78,471/- as assessed by the surveyor, namely, "One Season Services Pvt.
Ltd.", and obtained letter of subrogation and special power of attorney from the
2nd plaintiff.
Thereafter, the 1st plaintiff has issued notice to the defendant
on 09.09.1996, demanding payment of Rs.5,78,471/-, which was settled in favour
of 2nd plaintiff, but as there was no response, suit is filed for recovery of an
amount of Rs.8,49,571/- including interest at the rate of 24% per annum.
The defendant/Transporter, through its proprietor, has filed written
statement. While denying the various allegations of plaintiffs in the suit, it
was the case of defendant in the written statement that the Court has no
jurisdiction to try the suit and the claim of plaintiffs is hopelessly time-
barred. It is further pleaded that the defendant cannot be called as carrier
doing transport business. In the written statement, defendant also denied
undertaking of any such transportation as alleged and charging an amount of
Rs.8,320/- for carrying the goods and collecting Rs.3,820/- towards advance.
Precisely, it was the case of defendant before the trial Court that the
defendant was neither the consignor nor the consignee, but is a simple lorry
broker and his job ended when he took the lorry driver to the consignor. With
the above pleadings, the defendant has prayed for dismissal of suit.
On the basis of above pleadings, the trial Court has framed the following
issues:
"1.Whether the 2nd plaintiff engaged the defendant for transportation of 441
tins of Cashew Kernels and whether there is any negligence or misconduct on the
part of the defendant ?
2. Whether the 1st plaintiff is entitled to recover the suit amount as prayed
for ?
3. To what relief ?
On behalf of plaintiffs, Pws.1 to 3 were examined and Exs.A-1 to A-13
were marked, whereas, the Proprietor of the defendant-concern was examined as
DW-1.
On appreciating the oral and documentary evidence on record, the trial
Court rejected the contention of defendant that it is not a common carrier but
is only a lorry broker, and thus, held that it falls within the definition of
"common carrier".
But, with regard to the limitation aspect, the trial Court
has recorded a finding that the claim of plaintiffs is barred by limitation,
as much as they failed to file the suit by 9th December 1996, but it was filed
after expiry of 3 years period stipulated in Article 11 of the Indian Limitation
Act, 1963. With regard to limitation, the trial Court has relied on Ex.A-2 and
recorded a finding that the 1st plaintiff gave Police complaint on 23.11.1993 at
III-Town Police Station, Rajahmundry, with a request to take action in the
matter and to trace the goods.
Basing on the recitals under Ex.A-2, the trial
Court found that the consignment was to reach Mangalore, in any case, by
10.11.1993, therefore, the cause of action arose to the plaintiffs on the next
date i.e. 11.11.1993 as the time begins to run from the said date under Article
11 of the Indian Limitation Act.
Though the appellant/plaintiffs rely on Ex.A-
7, alleging that there is an acknowledgment by the defendant on 10.12.1994 that
the goods were not delivered by the said date, having regard to the language
used in the same, it cannot be termed as an acknowledgment so as to consider it
as a fresh cause of action for filing the suit.
While holding so, the trial
Court has dismissed the suit on the ground of limitation.
In this appeal, it is contended by Sri Kota Subba Rao, learned counsel
appearing for the 1st appellant-Company that three years period is to be
computed from the date of confirmation of loss by the defendant. It is further
submitted that the goods under dispute should be treated to have lost from the
date when the Police gave a certificate that the goods lost could not be
recovered. It is pleaded that as the Police gave such certificate only on
04.08.1994 under Ex.A-3, the suit is filed on 19.03.1997, as such, it is well
within time.
The learned counsel has further submitted that under Ex.A-7, the
defendant-Company has confirmed that goods were not delivered, and as the suit
was filed within three years from the date of Ex.A-7, it is well within
limitation, but the trial Court has not considered the issue of limitation in
proper perspective.
The learned counsel has placed reliance on the judgment of
Hon'ble Supreme Court in the case of M/s.Transport Corporation of India Ltd. Vs.
M/s.Veljan Hydrair Ltd.1 and also on the judgment of Gujarat High Court in the
case of Kirankumar Kamalkumar Vs. Himmat Transport Service & another2.
On the other hand, it is submitted by the learned counsel appearing for
the respondent/defendant that even according to the case of plaintiffs, goods
were booked on 06.11.1993, and in ordinary course, they were to be reached
Mangalore by 10.11.1993, as such, the limitation period starts from the
aforesaid date.
It is further submitted that it is a case of compensation for
non-delivery of goods, and as per Article 11 of the Indian Limitation Act, 1963,
the period of limitation is three years from the period when the goods ought to
have been delivered.
It is submitted that the judgments relied on by the
learned counsel for appellants are not applicable to the facts of the case. The
learned counsel has placed reliance on the judgments of Hon'ble Supreme Court in
the case of Boota Mal Vs. Union of India3 and in the case of M/s.Bhagwan Dass
Rama Shanker (dead) through L.Rs. Vs. Union of India & others4.
Having heard learned counsel for the parties, we have also perused the
material on record.
As issue No.1 in the suit was decided in favour of plaintiffs and as there
was no appeal by the respondent/defendant, it is not necessary to go into the
said issue in this appeal. The only question which falls for consideration in
this appeal is whether the suit filed by the plaintiffs for recovery of money is
within the limitation, as prescribed by the Indian Limitation Act, 1963 or not.
As evident from Ex.A-1, the consignment was booked on 06.11.1993 at
Maruvada village near Tuni in East Godavari District of Andhra Pradesh and it
was to be delivered at Mangalore of Karnataka State, but it did not reach the
factory of 2nd plaintiff at Mangalore even after the lapse of 15 days from the
date of its booking.
It is also not in dispute that the 2nd plaintiff gave a
complaint at III-Town Police Station, Rajahmundry on 23.11.1993, suspecting
misappropriation of goods by the driver of the vehicle.
The 2nd plaintiff also
addressed a letter to the defendant on 9th December 1993, intimating that the
lorry did not reach the factory at Mangalore even by that date. Ex.A-4 is the
copy of the letter, dated 9th December 1993.
It is true that in the crime
registered in Crime No.339 of 1993, Ex.A-3 proceedings were issued by the Police
on 04.08.1994, stating that the lorry could not be detected. It is also
relevant to note that the defendant had issued Ex.A-7 letter, dated 12.10.1994,
confirming that the lorry did not reach the destination.
As the goods booked by
the 2nd plaintiff were insured with the 1st plaintiff, the 1st plaintiff-insurer
has paid the value basing on the assessment of value of goods which were not
delivered at destination point. It is also to be noticed in this case that the
suit is filed on 19.03.1997.
Having regard to the pleadings and evidence on record, it is the case for
recovery of amount towards compensation for non-delivery of goods booked by the
2nd plaintiff, insured with the 1st plaintiff, therefore, the period of
limitation in this case, is governed by Article 11 of the Indian Limitation Act,
1963, which reads as under :
"-------------------------------------------------------------------------
----------
Description of suit Period of Time from
which
limitation period begins to run
------------------------------------------------------------------------
-----------
Against a carrier for Three years When the goods
compensation for ought to be
non-delivery of, or delay delivered.
in delivering goods.
------------------------------------------------------------------------
----------"
Various dates and events in this case are not in dispute, but the 2nd appellant
claims that as the goods were not delivered at the destination point, they were
to be treated as lost and the period of limitation is to be counted from the
certificate given under Ex.A-3 by the Police on 04.08.1994. It is the case of
appellants that only from the said date, it is to be construed that the
plaintiffs have suffered loss and injury and as the suit is filed within three
years from the date of Ex.A-3, it is well within the period of limitation.
Ex.A-2, which is the complaint made by the plaintiffs to the III-Town Police at
Rajahmundry, is relevant for the purpose of deciding the issue of limitation.
The said complaint reads as under :
"The said lorry in the usual course has to reach at Mangalore by 10-11-
1993, but on enquiries and by Telephone calls at our Head Office we came to know
that the lorry has not reached Mangalore as per the enquiries on 11.11.1993 and
continuously, we have enquired on all dates till today whether the lorry with
goods has reached to Mangalore and as the delay may occur due to heavy rains in
the Andhra Pradesh and Karnataka and Madras (Tamilnadu). But to our surprise
the lorry has not reached till yesterday evening i.e. 18-11-1993."
From the aforesaid complaint, it is clear that the goods were booked on
06.11.1993, and the lorry was to reach Mangalore by 10.11.1993, but it did not
reach Mangalore even by one day prior to the date of filing of complaint, which
was filed on 23.11.1993.
As it is never the case of plaintiffs that either the
goods were lost or any damage was caused to the goods booked by them, it is a
clear case where plaintiffs claimed compensation for non-delivery of goods, in
which event, only Article 11 of the Indian Limitation Act, 1963 will apply.
If
said Article 11 is to be applied, the limitation starts from the date when the
goods ought to have been delivered. The judgment relied on by the learned
counsel for respondent/defendant in Boota Mal's case (3 supra) supports his
case. In the aforesaid judgment, while considering identical issue under
Article 31 of the Limitation Act, 1908 (Act 9 of 1908), which corresponds to
Article 11 of the Limitation Act, 1963, in clear terms, the Hon'ble Supreme
Court has held that the time would run after elapsing of reasonable time, on the
expiry of which, delivery ought to have been made.
Even in the case of
M/s.Bhagwan Dass Rama Shanker (4 supra), it was held by the Hon'ble Supreme
Court that the time of delivery of goods to the consignee has to be ascertained
from the terms of contract between the consignor and the consignee and the
carrier, and in the absence of any contract, express or implied, the normal time
of delivery of goods is to be determined having regard to the nature of carrier,
distance and other relevant factors on the facts of each case. Coming to the
facts of the case on hand, as evident from Ex.A-2, goods were booked on
06.11.1993 and they were to reach Mangalore by 10.11.1993. The complaint under
Ex.A-2 itself was filed before the Police on 23.11.1993, and even in the said
complaint, it is categorically pleaded that the goods were not delivered even by
that time. Article 11 of the Limitation Act, 1963 deals with both the cases of
non-delivery of goods as well as the delay in delivering the goods, and in
either case, the starting point for limitation is after reasonable time is
elapsed for carrying the goods from the place of transport to the place of
destination. In this case, goods were dispatched from Maruvada village in
Andhra Pradesh, to be delivered at Mangalore in Karnataka State. Having regard
to the distance, and further, based on Ex.A-2, even according to the plaintiffs,
the goods were to be delivered by 10.11.1993. By applying the judgment of
Hon'ble Supreme Court in Boota Mal's case (3 supra), reasonable time is to be
gauzed having regard to the facts and circumstances of each case. Unless some
circumstances are shown by way of cogent evidence that goods could not have been
reached for the reasons beyond human control i.e. like damage of bridges or
roads etc., for the purpose of computing the period of limitation, Article 11 of
the Indian Limitation Act, 1963 is to be taken into consideration, and as
admitted by the plaintiffs, the reasonable time for reaching the goods at
destination i.e. Mangalore, would have been by 10.11.1993. Even the complaint
was also lodged with the Police at III-Town Police Station, Rajahmundry on
23.11.1993, and even from that date also, suit was not filed within the period
of three years, but it was filed only on 19.03.1997, after the expiry of three
years period as prescribed under Article 11 of the Indian Limitation Act, 1963.
Thus, by applying the above said provisions, we are of the view that the
Tribunal has correctly appreciated the evidence on record and recorded the
finding that the suit claim is barred by limitation.
Though the learned counsel for appellants has placed reliance on the
judgments of Hon'ble Supreme Court in the case of M/s.Transport Corporation of
India Ltd. (1 supra) and in the case of Kirankumar Kamalkumar (2 supra), the
said judgments are with reference to a provision under the Carriers Act of 1865.
As per Section 10 of the Carriers Act of 1865, no suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
Having regard to
the language used under Article 11 of the Limitation Act of 1963, the judgments
relied on by the learned counsel for appellant/plaintiffs, which are with
reference to the provision under Section 10 of the Carriers Act of 1865, are of
no help to their case.
As it is not the case of appellants that there is loss
or injury to the goods, so as to compute the limitation from the date of
confirmation by the Police, we reject such contention advanced by the learned
counsel for appellants.
Similarly, we also reject the contention that Ex.A-7
gives a fresh cause of action for filing the suit.
Ex.A-7 is a mere
confirmation by the defendant with regard to non-reaching of the vehicle and it
need not be taken as a fresh cause of action for the purpose of starting point
of limitation under Article 11 of the Indian Limitation Act of 1963.
Looking
from any angle, we are of the view that the findings recorded by the trial Court
are based on the evidence on record and are in conformity with the view taken by
the Hon'ble Supreme Court in the judgments relied on by the learned counsel for
respondent/defendant.
For the aforesaid reasons, we do not find any merit in this appeal and it
is accordingly dismissed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
_____________________
R.SUBHASH REDDY, J
_________________
A.V. SESHA SAI, J
dated:07-10-2013
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