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Judgment
G. Rajasuria, J.—The suit in O.S. No. 1704 of 1989 was initially filed by the plaintiff Development Services (India) Private Limited as
against (1) M/s Spencer and Company Limited and (2) Oriental Insurance Company Limited. Subsequently, the said Oriental Insurance Company
Limited, as per the order of the trial Court was transposed as Plaintiff No.2. Thereafter, M/s K.L.M.Royal Dutch Air Lines was impleaded as one
of the defendants. While so, the said M/s K.L.M.Royal Dutch Air Lines initiated third party proceedings under Order VIII A CPC as against Air
India. The appeal is focussed as against the Cross judgment and decree dated 13.04.1994 passed by the learned II Additional City Civil Judge,
Madras, in O.S. No. 1704 of 1989. For convenience sake, the parties are referred to here under according to their litigative status before the trial
Court.
The quintessence of the case of the plaintiffs as stood exposited from the amended plaint could be portrayed thus:
The first plaintiff entrusted goods worth Rs.34,061/- to wit laces with M/s K.L.M.Royal Dutch Air Lines, D2 for being transported to Belgium
from Madras. M/s Spencer and Company Limited shown as D1 in the Judgement is the agent of M/s K.L.M.Royal Dutch Air Lines, D2. M/s
K.L.M.Royal Dutch Air Lines, D2 entrusted the goods to D3, Air India for being transported. But, Air India would come forward with the plea
that the goods got lost in the transit. Hence, the first plaintiff got insurance coverage amount from the second plaintiff, who stepped into the shoes
of the first plaintiff, by virtue of the Power of Attorney executed by the first plaintiff in favour of the second plaintiff. As such the suit was
prosecuted claiming damages from the defendants.
Per contra, M/s Spencer and Company Limited, D1 filed the written statement, the gist and kernel of it would run thus:-
The suit is barred by limitation. D1 is only the authorised sales agent of M/s K.L.M.Royal Dutch Air Lines, D2. The first plaintiff booked a
consignment of laces to Belgium through M/s Vinsens Clearing Agent of M/s K.L.M.Royal Dutch Air Lines. The consignment was carried by Air
India D.3 from Madras to Singapore enroute Belgium. However the consignment got lost when it was in the custody of D3 Air India, who issued
the certificate dated 30.10.1989 that the consignment booked got lost in the transit. The suit as against D1 is not tenable as he happened to be only
an agent of the disclosed Principal viz., D.2, M/s K.L.M.Royal Dutch Air Lines.
The second defendant M/s K.L.M.Royal Dutch Air Lines, filed the written statement, the pith and marrow of it would run thus:-
The suit is barred by limitation. The goods entrusted to D2 through Agent was in-turn entrusted to Air India, D.3 for being transported to
Singapore. But, when the goods were in the custody of Air India, D.3, it got lost. To that effect, D.3, also issued a certificate dated 30.10.1989.
D.2 came to know about the loss of consignment only on 19.09.1998, upon receipt of the letter addressed to D2 by the first plaintiff. Second
Plaintiff also paid compensation relating to loss of goods and as such no cause of action survives. Accordingly, D.2 M/s K.L.M.Royal Dutch Air
Lines prayed for dismissal of the suit.
Third defendant, Air India filed the written statement, the warp and woof of it would run thus:-
The suit is barred by limitation. Rule 30 of Schedule II of the Carriage by Air Act, 1972 (herein after referred to as the Act) would contemplate
two years period of limitation, for claiming damages. Air India, D.3 was impleaded as 3rd defendant long after the expiry of two years from the
arisal of the cause of action as contemplated under the said provision and accordingly D.3, prayed for dismissal of the suit.
The trial Court framed the relevant issues and additional issues. During the trial, on behalf of the plaintiffs, P.W. 1 was examined and Exs.A1 to
All were marked. On the defendants'' side, no oral evidence was adduced. However, by consent Exs.B1 to B8 were marked.
The trial Court ultimately decreed the suit directing the second defendant M/s K.L.M.Royal Dutch Air Lines to pay a sum of Rs.20,416.35 with
interest at 18% p.a. from the day of plaint i.e., 15.02.1989 till the date of realisation; D.2 was also ordered to pay the cost of Rs.4,944/- to the
first plaintiff and the third defendant Air India was directed to reimburse D2 M/s K.L.M.Royal Dutch Air Lines with the amount, which D.2 M/s
K.L.M.Royal Dutch Air Lines would be paying to first plaintiff. The suit as against D1 was dismissed.
Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, D.3 Air India filed this appeal on various grounds. The gist
and kernel of them would run thus:-
The judgment and decree of the trial court is against law, weight of evidence and probabilities of the case. As against D.3 Air India, the decree
should not have been passed. The trial Court failed to hold that the claim as against D.3 Air India was barred by limitation in view of the said Rule
The goods referred to in this case was consigned by D.2 M/s K.L.M.Royal Dutch Air Lines on 22.06.1988, whereas D.3 Air India was
impleaded as a party only on 28.06.1993 and in-fact such a suit if at all to be filed, it should have been filed within a period of two years from the
arisal of the cause of action. But that was not done so. Hence the suit is barred by limitation. The reasoning given by the trial Court for holding that
the suit was not barred by limitation as against D3 Air India is untenable. As per Section 21 of the Limitation Act, relating to the newly added
party, the suit was deemed to have been instituted from the date he was so made a party. The suit was deemed to have been instituted as against
D3 Air India only on 28.06.1993 long after the expiry of two years'' period, as indicated supra. Accordingly, D.3, prayed for the dismissal of the
original suit after setting aside the Judgment and decree of the trial Court.
Heard the learned counsel for the appellants and the learned counsel for the respondents.
The parties restricted their arguments only relating to limitation point. Hence the following points for consideration arise:-
(1) whether the original suit and Order VIII-A proceedings as against D3 Air India are barred by limitation in view of Rule 30 of the II Schedule to
the Carriage By Air Act, 1972? and
(2) whether there is any infirmity in the Judgment and the decree of the trial Court?
Point No.1 The learned counsel for the appellant placing reliance on the said Rule 30 and also Order I Rule 10(5) CPC, would advance his
argument to the effect that D3 Air India, appellant herein was impleaded in the suit only with effect from 28.06.1993, so to say long after the expiry
of two years from the arisal of the cause of action for filing the suit. Whereas the learned counsel for D2 M/s K.L.M.Royal Dutch Air Lines, would
submit that at the instance of D.2 only D3 was impleaded purely for the purpose of safeguarding the interest of D.2 in the event of the trial Court
passing a Judgment directing D.2 to pay damages to the plaintiffs as D.2 entrusted the goods to D.3 for being transported on its behalf from
Madras to Singapore and at that time alone when the goods were in the custody of D3 Air India admittedly, it got lost.
At this juncture, it is worthwhile to reproduce hereunder Rule 30 of the Act:
Rule 30: (1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case"".
and also Order I Rule 10(5) of CPC hereunder:-
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877) Section 22, the proceedings as against any person added as
defendant shall be deemed to have begun only on the service of the summons"".
By way of highlighting the real purport of said Rule 30 of the Act, the learned counsel for the appellant would rely on the Judgment of the
Division Bench of this Court in the case of M/s Air India, Bombay Air Port and another vs. M/s Asia Tanning Co. & Another reported in 2003-1-
L.W.622, an excerpt from it would run thus:-
The word ''damages'' is not defined in the Rules. Rule 17 deals with the damages sustained in the event o death or injury to a passenger; Rule
18 deals with the damage sustained in the event of the destruction or loss of, or damage to, any registered baggage or any cargo; Rule 19 deals
with the liability for damages occasioned by delay in the carriage by air of passengers, baggage or cargo.
Section 4 of the Act deals with the application of amended Convention (Warsaw Convention 1929 as amended by the Hague Protocol, 1955)
to India. Sub-section (1) thereof reads thus:
The Rules contained in the Second Schedule being the provisions of the amended Convention relating to the rights and liabilities of carriers,
passengers, consignors, consignees and other persons, shall subject to the provisions of this Act, have the force of law in India in relation to any
carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage"".
The Rule of Limitation prescribed in Rule 30 of the Second Schedule is thus a Special Rule of Limitation in respect of carriage by air and will
prevail over the general law of limitation. The Rules prescribe the forum and the period before which the action is to be brought. Those provisions
dealing with the forum and the period of limitation are meant to be the law governing actions against air carriers. Questions of procedure are
governed by the law of the Court in which the action is brought, as provided in Rule 29(2) of the Second Schedule to the Act.
The Rules contained in Chapter III of the Second Schedule are in relation to the claims for damages against the carriers in relation to, inter alia,
the carriage of goods by air. Such carriage of goods is normally made only after an Airway bill is issued for which provision is made in Rule 5 in
Part III of Chapter II to the Second Schedule. Chapter II is titled as ''Documents of Carriage''. Part I of Chapter II is the passenger ticket; Part II
of Chapter II is the Baggage check; and Part III of Chapter II is the Airway bill"".
Apparently the aforesaid facts would clearly indicate that D.3 Air India was impleaded long after two years and hence as against D3, the trial
Court should not have passed the Judgment. He would also try to press into service Section 4 (1) of the Act, which is reproduced hereunder:-
Application of amended Convention to India :- (1) The rules contained in the Second Schedule, being the provisions of the amended
Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the provisions of
this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft
performing the carriage"".
Infact, in the decision cited by him referred to above, the said provision is found referred to at Paragraph No.7.
The learned counsel for the appellant D3 would try to torpedo the argument of the learned counsel for D.2 by advancing his arguments that the
limitation as contemplated under Rule 30 of the said Act is not only applicable relating to a suit filed by the actual consignor of goods with the
consignee Air Carrier, but it will also apply between two Air Carriers so to say if one air Carrier inturn entrust the goods of the consignor to
another air carrier for transporting it on its behalf and if the former is constrained to pay damages to the consignor for the loss of goods, while the
latter carrier transporting it, then the former Air Carrier also is bound by the limitation period contemplated therein.
In order to understand the real purport of Rule 30 of the act, the principles governing interpretation of statutes should necessarily be adhered
to. The principle Bonum partem so to say the words are prima facie to be taken in their lawful and rightful sense, should be resorted to for
understanding the real purport of Rule 30. An excerpt from Chapter V of Maxwell on the Interpretation of Statutes (Vol.XII) would run thus:-
BEFORE adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or
consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is
presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not frequently necessary, therefore, to
limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal
meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or
grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its
intention in a slovenly manner, than that a meaning should be given to them which could not have been intended"".
A reading of various provisions of the Act including the rules as found set out under Schedule II of it would make it quite obvious that dispute
between two AIR carriers in matters of this nature, is not covered by the limitation of two years as found set out therein. The rule preceding Rule
30 also should be read. Rule 29 is extracted hereunder for ready reference:-
(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before
the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the
contract has been made or before the Court having jurisdiction at the place of destination.
(2) Questions of procedure shall be governed by the law of the Court seized of the case"".
A reading of Rule 29 would clearly indicate what was in the mind of the Legislature in formulating Rules 29, 30 etc. The consignor of goods
should be provided with facility to seek their redressal within the time frame and those provisions are intended to discipline both the consignor and
the air carrier in this regard. No doubt in an hypothetical case where one air carrier entrusts its own goods to another air carrier for transport, the
former becomes the original consignor and the latter becomes the original consignee and in such a case the position would be different. But here
the factual position is entirely different. The original consignor is only the first plaintiff and by no stretch of imagination, D.2 M/s K.L.M.Royal
Dutch Air Lines could be described as original consignor. Infact, in international air transport, one and same air carrier cannot be in a position to
transport the air cargo from one place to another and as such there is contractual understanding between the air carriers concerned. As such the
goods entrusted by one consignor to one air carrier would be transported by one other air carrier and if any dispute arises between such two air
carriers, in such circumstances, the limitation found as envisaged under Rule 30 of the Act cannot be pressed into service.
The facts involved in the case dealt with by the Division Bench of this Court are entirely different from the facts involved in this case. In the
cited precedent, the facts were to the effect that finished leather was entrusted to Air India for being transported and delivered to the consignee at
Boston and that occurred short delivery for which the Air India was sued beyond two years and in those circumstances, this Court held that the
limitation period of 2 years should be applied as against the consignor and as such the cited decision is not covering the factual aspects involved in
this case. D.2 could have in this case without invoking Order VIII RuleA so to say the third Party proceedings and contested the original suit and in
the event of D.2 M/s K.L.M.Royal Dutch Air Lines having been ordered to pay damages to the plaintiffs and after making such payment, D.2 M/s.
K.L.M.Royal Dutch Air Lines could have instituted a separate suit namely contribution suit for reimbursement form D3 by adhering to the
provisions of the Limitation Act. The Core question arises, whether in such a suit Air India could press into service the said Rule 30.1 am of the
considered opinion that certainly Rule 30 is having no application to contribution suits or suits for reimbursement by one Air Carrier against another
Air Carrier. By way of avoiding multiplicity of proceedings, D.2 M/s K.L.M.Royal Dutch Air Lines invoked Order VIII-A of CPC. In such a
case, the question of pressing into service Rule 30 of the Act as against D.2 M/s K.L.M.Royal Dutch Air Lines does not arise at all. The very
purport of Order VIII-A itself would denote and connote that relating to the remedy between the defendant who invokes Order VIII-A and the
third party is concerned separate law of limitation is applicable dehors the law of Limitation as applicable to the original suit.
The learned counsel for the appellant D.3 placing reliance on Section 4(1) of the Act as extracted supra would draw the attention of this Court
to the words ""other persons"" and develop his argument that those words would include air carriers. My mind is redolent with the principle Ejusdem
generis. The term ''other persons'' should be understood in concinnity and in consonance with the words carriers, passengers, consignors,
consignees and other persons and that too in the light of the object of the relevant rules and provisions. The legislatures never intended to apply it
to contribution suits and reimbursement suits and in such a case, Rule 30 cannot be pressed into service as against D3. Infact, plaintiffs have no
cause of action directly as against D.3 and it was D.2 M/s K.L.M.Royal Dutch Air Lines in order to safeguard its interest and that too in the event
of suffering a decree wanted to get reimbursed from D2. Hence in such a case, D3 Air India is not justified in raising the limitation point as against
D.2 by relying on Rule 30.
The learned counsel for D.3 also cited the decision of the Hon''ble Apex Court in the case of M/s Bihar Supply Syndicate vs. Asiatic
Navigation and others reported in AIR 1993 S.C. 2054 = 1993-2-L.W.1 12 relating to Marine Insurance Act, which contemplates only one year
limitation period. The decision of this Court in the case of The Shipping Corporation of India Ltd., vs. Union of India reported in 2004(3) CTC
686 = 2005-1-L.W. 174 also relates to Indian Carriage of Goods by Sea Act, 1925 and there also the claim was dismissed on the ground of
limitation. In view of my discussion supra, those decisions are not applicable to the factual circumstances involved in this case.
The learned counsel for D2 also has come forward with an alternative argument that infact the suit by the plaintiffs as against D.2 was barred
by limitation in view of Rule 30 as between the plaintiffs and D.2, Rule 30 would be applicable and that originally D.2 was not impleaded as one of
the defendants'' but later, so to say, after a lapse of two years from the date of filing of the suit, D.2 was impleaded.
Indubitably and incontrovertibly the goods were entrusted by the first plaintiff to D. 1, the agent of D.2 on 20.06.1988. The policy of insurance
emerged dated 21.06.1988 was issued by P2 to PI. On 13.09.1988 the consignee confirmed that consignment did not reach him. On 19.12.1988,
notice was served to D.2 Airlines by first plaintiff. Notice was sent by first plaintiff to second plaintiff on 14.12.1988, for recovering the insurance
amount. Only on 15.02.1989 the plaint was filed in Court. On 30.10.1989, Air India D.3 issued certificate confirming the loss of goods in transit.
D.2 M/s K.L.M.Royal Dutch Air Lines was impleaded on 02.04.1991, as per the order of the trial Court in I.A. No. 22910 of 1989. As such the
learned counsel for the second defendant would develop his argument that two years period of limitation as contemplated under Rule 30 of the Act
had long ago got expired as against D2.
But the learned counsel for the Insurance Company, the second plaintiff would correctly and convincingly argue that even though the order of
the trial Court is dated 02.04.1991 impleading D.2 M/s K.L.M.Royal Dutch Air Lines, yet, the necessary application in I.A. No. 22910 of 1989
for impleadment was filed even in the year 1989 and the very number itself is indicative of the said fact. As such, it is clear that during the year
1989, two years period did not get lapsed.
The learned counsel for D.2 placing reliance on Order I Rule 10(5)CPC would develop his argument that from the date of receipt of such suit
summons alone, D.2 would be deemed to have been impleaded as a party as per the limitation Act. At this juncture, I would like to highlight that
the said provision has to be read harmoniously with regard to the case laws as such. It is trite proposition of law that before impleading the party in
a suit, in the IA for impleadment, notice should be sent to the proposed party. Obviously, it would take time even years together at times. If the
argument of the learned counsel for D.2 M/s K.L.M.Royal Dutch Air Lines is accepted, then, pragmatically speaking in no case, parties could be
added additionally within the period of limitation. It is well known that there is no statutory time limit for disposal of IA and also for pronouncement
of orders and in such cases, the proposed parties would be bent upon dragging on the proceedings. In almost all the cases, the attempt to implead
necessary new parties will end in a fiasco. As such the time taken for impleading new parties should be excluded while computing the period of
limitation. So, what could be legally and logically, practically and pragmatically, reasonably and justifiably held is that the date of filing of the
application for impleading new parties should be taken for reckoning limitation, as otherwise, it will lead to disastrous consequence in the litigative
process resulting in causing injustice to litigant public. Accordingly if viewed, D.2 M/s K.L.M.Royal Dutch Air Lines cannot press into service the
plea of limitation. As such the contention of D.2 that the original suit filed by the plaintiffs as against D.2 was barred by limitation is not tenable.
Infact, D.2 attempted to get the original suit itself dismissed so that not only D.2 would be benefited, consequently D.3 also would be benefited.
But in my opinion, such a plea suggested is not legally tenable.
The learned counsel for D.2 M/s K.L.M.Royal Dutch Air Lines would justify his right to argue on his alternative plea as aforesaid, by placing
reliance on Order XLI Rule 33 CPC even though no cross appeal was filed or separate appeal was filed by D.2 as against rejection of D.2'' s plea
of limitation. In support of his contention, he cited the following decision:-
1) Mahant Dhangir and Another vs. Shri Madan Mohan reported in AIR 1988 Supreme Court 54
There is no quarrel over the proposition that the appellate Court can invoke Order XLI Rule 33 CPC in appropriate cases. Here, considering
Order XLI Rule 33 only, I permitted the learned counsel to argue on the alternative plea that the suit was barred by limitation as against D.2 M/s
K.L.M.Royal Dutch Air Lines. But on merits, I could see that such a plea of limitation as sought to be putforth by D.2 also was untenable.
Before concluding this Judgment, I would like to cite here the following Judgment:-
The Oriental Insurance Co. Limited vs. Karur Vsya Bank Limited (reported in 2001 (2) CTC 400 = 2001-3-L.W.866)
Not to put too fine a point on it, the aforesaid Judgment is clearly indicative of the fact that Government, Government Organisations and
Corporations, when once it finds that they are at fault, they should not rely on limitation point so as to deny the legitimate claim of the public. Here,
without mincing words, the appellant D.3 admitted that it got lost the goods while the same were in its custody. In such a case, D3 should have
come forward to pay the claim in all fairness. No doubt, I do not lay down a general principle that Government and Government Organisations
should not raise limitation point at all in all cases. But in a case like this, where D.3 are found was at fault, in view of having lost the cargo, it should
have, without any demur come forward to pay compensation, but it failed to do so. Accordingly, point No. 1 is decided in favour of the plaintiffs.
Point No. 11 In view of my discussions supra, I am of the considered view that there is no infirmity in the Judgment and decree passed by the trial
Court, consequently, the appeal is dismissed confirming the same. However, there shall be no order as to costs.