The Trustees of the Port or Madras vs Roberts Maclean and Company Limited and Another

K.S. Venkataraman, J.—This appeal has been filed by the Madras Port Trust. It arises out of a claim for Rs. 6,639-58 being the value of

one case containing T. 30. mobile metafilter, which was lost while it was in the custody of the Port Trust after landing. The case in question and ten

drams methsil were consigned from England on board the ship ""s.s. Mohanada"". to Madras, the consignee being the first plaintiff, Messrs. Roberts

Maclean & Company Limited. The ship arrived in Madras on 1st Apr 1, 1961. The Port Trust took charge of the consignment in good condition

(according to the tally sheet but delivered only the ten drums of mevarsil and not the case in question, namely. T.30. mobile metafilter. They issued

a""C"" certificate to the first plaintiff on 12th October, 1961. A copy of the ""C"" certificate has been marked as Exhibit A-2. The first plaintiff made a

claim for Rs. 15,246-01 with the Port Trust under Exhibit A-3 dated 3rd November, 1961. It followed it up by a reminder, Exhibit A-4 dated

18th January, 1962. The Port Trust sent a reply Exhibit A-5 dated 13th February, 1962 pleading Section 40(2) of the Act (By the Act, we mean

the Madras Port Trust Act, 1905) as a bar and stating that since the letter of enquiry (Exhibit B-1) dated 7th July, 1961 of the first plaintiff had not

been received within one month of the landing of the cargo, the claim was not sustainable.

Later, on 1st September, 1962 the first plaintiff collected a sum of Rs. 6,639-58 from the second plaintiff which is the insurance company with

whom the case had been insured by or on behalf of the first plaintiff. It was thereupon the two plaintiffs filed the suit out of which this appeal arises

for recovery of Rs. 6,639-58 from the defendants.

The defendants pleaded that there was no negligence on their part, that they had taken reasonable care which was expected of a bailee and that

the claim was time-barred both u/s 40(2) and section no of the Act. The learned Judge of the City Civil Court held that the negligence was proved

and rejected the pleas of limitation. He therefore, granted a decree. Hence, the appeal.

Sri R.G. Rajan raises before us the same two questions, namely, that there was no negligence and the claim was time-barred. But he is not able

to say anything useful on the finding of negligence. The goods were lost in the custody of the defendant and that itself prim facie proves the

negliegence. We are not satisfied that the defendants took reasonable care as bailees. We, therefore, confirm the finding of the learned trial Judge

on that point. On the question of limitation, the learned Counsel does not press the plea u/s 40 (2) of the Act. But he presses the plea u/s No.

Section no reads thus:

Notice and limitation of suits or other proceedings :--No suit or other proceeding shall be commenced against any person for any thing done,

or purporting to have been done, in pursuance of this Act without giving to such person one month''s previous notice in writing of the intended suit

or other proceedings, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding.

The contention of the learned Counsel for the appellants is that the cause of action accrued on 12th October, 1961 when the ""C"" certificate was

issued, and that the suit was filed on 29th November, 1962 more than six months thereafter. The answer of the plaintiffs is that the cause of action

accrued to the second plaintiff finally on 1st September, 1962 when the second plaintiff paid the insurance amount to the first plaintiff and became

subrogated to the rights of the first plaintiff. For this proposition, they rely on the decision of Ganapathia Pillai, J. in The Home Insurance Company,

Limited Vs. The Trustees of the Port of Madras, . In fact, the learned trial Judge followed this decision in upholding the contention of the plaintiffs

but that decision had since been overruled by a Bench of this Court in Trustees of the Port of Madras Vs. Home Insurance Co. Ltd., . The learned

Judges say at page 514.

In the light of the above discussion we have no hesitation in the circumstances in holding that the claims against the Board in actions falling u/s 110

of the Madras Port Trust Act like those now under consideration whoever figures as the plaintiff--whether it be the assured or the insurer--must be

within six months from the accrual of the cause for the claim by the assured against the Board. There can be no fresh start u/s no, on the insurer

getting subrogated to the rights of the assured.

Two reasons have been given in support of the decision, firstly that the content of the right of the insurer in the suit against the Board is the same as

the content of the right of the insured and the insurer only steps into the shoes of the insured. The second is that the shorter period of limitation has

been provided because the Board is a public body and the evidence in its possession may be lost if the suit is not brought within such a short time

of six months. Indeed, if there is delay on the part of the insurer paying the insured, that would indefinitely prolong the suit against the Board and

valuable evidence in the possession of the Board might be lost; This decision holds the field now and we respectfully follow it.

According to the decision of a Bench of this Court in Trustees of the Port of Madras Vs. Union of India (UOI), , in cases where ""C"" certificates

are issued, the date of the accrual of the cause of action for the purpose of section no of the Act is the date of the issue of the ""C"" certificate--may

be the date of the receipt, which in this case is 12 th October, 1961. We may add that even taking for the sake of argument that the final reply,

Exhibit A-5 dated 13th February, 1962 of the Board was the definite and final rejection by the Board of the claim of the first plaintiff, the suit was

filed more than six months thereafter. In any view, therefore, the suit was time-barred.

The suit has therefore to be dismissed. But, on the question of costs, we would observe that when the suit was brought and was decreed, the

decision of Ganapatia Pillai, J., held the field and according to it, the suit was within time.

Hence we think that the proper order to pass in this case is that the parties should bear their own costs in both the Courts. But, in view of the

fact that the articles was lost while it was in the custody of the Board and on account of their negligence, there is a moral responsibility of the Board

to reimburse the plaintiff apart from the technical plea of limitation, and we trust the Board, being a public body, will favourably consider the claim

of the plaintiff.