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Judgment
Kunhamed Kutti, J.—The only point that arises for determination in this appeal is whether the suit is barred by limitation. The facts can be
briefly stated.
On 24-7- 1956 a consignment of beedi tobacco consisting of 55 bags was despatched from Karamsad in the State of Mahrashtra to Tirunelveli
junction. The goods had to pass through the Western Railway, Central railway and Southern railway and actually reached Tirunelveli Junction on
27-8-1956, which normally is a much longer time than usually required. The plaintiff who is the consignee of the goods found them wet on arrival
and, therefore, did not take delivery. On 1-9-1956 the plaintiff wrote to the Chief Commercial Superintendent of the Southern railway as per Ex.
A.13 that the above consignment reached Tirunelveli junction after a pretty long time and that almost all the bags were found damaged due to rains
as the bags had been loaded in an old wagon exposed to sun and rain in transit. By this letter the plaintiff also informed the Chief Commercial
Superintendent that, since the bags were damaged, the plaintiff was not in a position to take delivery as the tobacco had completely lost its colour,
flavour, taste, strength etc. and was unfit for human consumption. As there was no reply to this letter, the plaintiff again wrote on 11-9-1956 as per
Ex. A. 14, setting out the price including the excise duty of the 55 bags of tobacco and requesting the Chief Commercial Superintendent to settle
the claim. In reply to the latter letter, the Chief Commercial Superintendent wrote to the plaintiff on 18-9-1956, as per Ex. A.3, asking him to take
delivery of the consignment on reasonable assessment of the damage and informing him further that if such delivery was not taken within 3 days
from the receipt of the letter, the goods would be disposed of at the plaintiff''s risk and responsibility holding him liable for wharfage etc. in
accordance with Sections 55 and 56 of the Railways Act. The plaintiff was also informed in this letter that necessary instructions had been issued
to the Claims Inspector. Tirunelveli, in the matter of assessment.
It would appear that on 9-10-1956 the goods were examined by the Central Excise and Railway Officials (A. T. S. and Commercial Inspector
of the railway and Deputy Superintendent and Range Officer of the Central Excise). But as the Commercial Inspector wanted all the damaged
bags to be emptied and the tobacco , processed, actual delivery was not given to the plaintiff who, then wrote as per Ex. B.4 on 10-10-1956, that
processing wanted by the railway authorities was prohibited under Rule 47 of the Central Excise Act, and that, since the bags were drenched
completely in water, the question of processing or curing did not arise. Jn Ex. B.4, therefore, while again requesting the Chief Commercial
Superintendent to settle his claim, the plaintiff also asked for a copy of the report forwarded by the Central Excise authorities. A reply to this letter
was sent by the Chief Commercial Superintendent on 19-10-1956. He stated that the matter was under correspondence with the Central Excise
authorities and further communication would follow. No communication appears to have been subsequently sent; so that"" on 25-10-1956, the
plaintiff again wrote to the Chief Commercial Superintendent as per Ex. B.7 for settlement of his claim within a week and informed him that if the
claim was not settled he would be forced to take legal action against the railway. This was followed by other letters. In their reply, E.x A.10, the
railway informed the plaintiff that the beedi tobacco in question was not packed in baskets or mats as required by the prescribed packing
condition, P 10 applicable to the consignment in question, that the alleged damage was directly attributable to non-compliance of the said packing
condition, and that, further, the consignment was booked at the 9th class rate at owner''s risk the conditions of which absolved the railway from all
liability for loss, destruction, deterioration or damage to goods arising from any cause whatsoever, except upon proof of negligence or misconduct
on the part of the railway or its servants under the provisions of Section 74-C of the Railways Act; the ultimate result of the stand taken by the
railway was the issue of suit notice on behalf of the plaintiff as per Ex. B.5 dated 4-10-1957 and the institution of the suit on 4-1-1958 for
recovery of Rs. 15,169-39 nP. as damages for misconduct and gross negligence on the part of the railway.
The railway filed a written statement to the action setting out the plea already raised by it and further contending that the suit was barred by
limitation.
The learned Subordinate Judge framed five issues in the suit of which issue No. 4 raised the question whether the suit was in time and was not
barred under Article 30 of the Limitation Act. The ether issues related to the pleas raised by the defendants that there was no privity of contract
between the plaintiff and the defendants, that the tariff rules of packing were not complied with by the plaintiff, and that the railway was not guilty of
misconduct or negligence. All these issues were found against the railway as either they were not seriously pressed or the evidence needed to come
to a finding for the defendants was not placed before the Court. Indeed, as regards issue 3, the Court below was compelled to draw an adverse
inference against the defendants u/s 114(g) of the Evidence Act, because on an order passed by the Court directing the defendants to produce the
Wagon Movement registers and other documents, they did not choose to produce them in Court.
No circumstances have been placed before us by the learned counsel for the railways to hold that on the materials available to the learned
Subordinate Judge, he was wrong in recording the findings in the manner done by him. The question, however, is whether the suit is barred by the
statute of limitation.
This was a case of damage to, and not a case of non-delivery of, the goods. The appropriate Article of the Limitation Act applicable in the
circumstances, is Article 30. The question is when does time begin to run against the plaintiff.
In paragraph 10 (a) of the plaint, the plaintiff has averred that since the defendant acknowledged its liability within the meaning of Section 19 of
the Limitation Act, in the certificate of damages issued under the signature of the defendant''s agent and official on 6-12-1956, and since the period
of two months required for sending a notice to the defendant had to be excluded, the suit was within the time. The assessment of damage was on
6-12-1956. The certificate of damage was issued without prejudice and no liability was sought to be acknowledged by the document. The learned
Subordinate Judge, relying on a Calcutta ruling reported in Balchand Badriprasad Vs. Union of India (UOI), took this view and held that mere
ascertainment of damages in the certificate of damage, (Ex. A.8), by itself did not amount to acknowledgment of liability. Unfortunately, however,
he did not consider the question with reference to Article 30 of the Limitation Act. Under Article 30 which, as we have stated, is the appropriate
Article applicable to the case, the period fixed for a suit against a carrier for compensation for losing or injuring goods is one year from the time
when the loss or injury occurs. There is no doubt evidence in this case that prior to the open delivery, the plaintjff had come to know, in a general
way, that the tobacco had been wetted and damaged. But the exact nature of the injury and quantum thereof on which alone he could claim
damages, was known to him only when the goods were examined after opening each bag and ascertaining its condition. This was on 6-12-1956.
A Bench of this Court has held in Union of India Vs. B.L.N. Sitaramiah and Others, , that for a suit for compensation for damages to goods
against a carrier time will run under. Article 30 of the Limitation Act from the date on which the consignee becomes aware of the damage, and that
the date of repudiation of the claim by the carrier cannot be the starting point of limitation in such cases. Union of India v. S. K. Abdul Razack,
AIR 1962 Mys 23 relied on for the respondent, was a case where bags of toor dhal arrived at the destination had been damaged by rain on the
way. Open delivery was made to the consignee and the loss was estimated by the Commercial Inspector on 3-8-1952, But the suit for damages
was filed on 12-8-1954, after the lapse of more than one year. The learned Judges of the Mysore High Court held, differing from the view taken
by the Courts below that the limitation was saved on account of the acknowledgment of liability by the appellant, that the suit was clearly barred by
limitation. We are in respectful agreement with this view. But the question as to when time begins to run against the plaintiff for the purpose of
Article 30 of the Limitation Act was not considered in this case. That aspect has been gone into in Union of India Vs. B.L.N. Sitaramiah and
Others, , and we respectfully agree with the view expressed by the learned Judges in the above case. Applying the said ruling, the period began to
run against the plaintiff only from 6-12-1956. He is entitled to add on to this period the two months time prescribed for notice. The suit filed on 4-
1-1958 is, therefore, within the time.
The decree and judgment of the Court below are accordingly set aside and the appeal is allowed with costs throughout.