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P L D 1958 Dacca 452

 

Before Asir, J

 

 

DADA LTD.‑Appellant

 

versus

 

R. S. N. COMPANY LTD.‑Respondent

 

Second Appeal No. 503 of 1954, decided on 23rd December 1957.

 

River Steam Navigation Co. Ltd. and another v. Manindra Nath Pathak and another 51 C W N 551(554) fol.

 

A. S. Choudhury, B. N. Choudhury and Akbar Hayat for Appellants.

 

P. C. Pakrashi, S. C. Bose and S. S. Huda for Respondents.

 

JUDGMENT

This appeal arises out of a suit for compensation for shortage of rape‑seeds during transit. The plaintiff sent one thousand bags of rape‑seeds from Chittagong on 11th January 1951, to Ktiulna, through the steamer of the defendants. Plaintiff took delivery of the consignment on 25th January 1951, but 274 bags appeared to be slack torn, resewn and the rest, 726 bags, were in good condition. It was found as a consequence that 59 mounds and I seer fell short at the time of delivery. The plaintiff has accordingly made a demand of Rs. 1829‑13‑6 by way of compensation. The plaintiff’s further case is that the defendants were informed and letters were sent but except one reply there was no reply. So the plaintiff was obliged to institute the suit on 12th June 1952.

 

2. The defendants filed a written statement and their con tentions in brief were that the goods were carried at owners’ risk and there was no such shortage as calculated by the plaintiff: The defendants’ further case was that the bags were old and slack from the very start and naturally during transit there was some shortage. The defendants also claimed that the suit was barred by limitation.

 

3. The trial Court found that the suit was one for com pensation for non‑delivery within the meaning of Article 31 of the Limitation Act and that the suit by reason of the fact that the defendants never let the plaintiff know as to the result of their promised enquiry was not barred by limitation. On merits, the learned Munsif took the view that during transit due to natural causes there might have been some loss to the extent of 6 maunds 34 seers. In that view of the matter, the suit was decreed in part for a sum of Rs. 1617‑8‑0 only.

 

4. The defendants preferred an appeal against the decision of the trial Court and the learned Additional District Judge took the view that the loss of the plaintiffs amounting to 59 maunds I seer was not occasioned by any criminal act of the defendant Company or their agents or servants and that the suit was barred by limitation. He, accordingly, allowed the appeal with costs and, set aside the judgment and decree passed by the learned Munsif.

 

5. In this Second Appeal, the learned Advocate for the plaintiff‑appellant contends that the suit as framed was one for recovery of compensation for non‑delivery of certain amount of goods which was due to the negligence on the part of the defendants. It was also contended that, in view of the letter dated 19th February 1951, claiming compensation, it ought to have been held that the matter was taken up for enquiry and, in the absence of a definite refusal, the plaintiff’s suit could not be regarded as being out of time. On merits, it is contended that the special contract as evidenced by the Risk Note Exh. B, cannot, in the absence of a formal proof as to how the goods were dealt with, while in the custody of the dependants, reduce the liability to nil in view of the provision in section 8 of the Carriers Act.

 

6. Mr. Pakrashi, appearing on behalf of the defendants respondents, on the other hand, contends that the suit is clearly barred by limitation not only under Article 31 but also under Article 30 of the Limitation Act. On merits, he, however, contends that in view of the Risk Note Ext. B, the defendants were not liable to pay any compensation in the present case.

 

7. It is more or less settled that while considering the question of limitation one has to see as to whether upon the allegations made in the plaint the suit can be placed under or brought within the scope of Article 31 or Article 30 of the Limitation Act. From the averments made in the plaint it seems the plaintiff has framed the suit as required under Article 31 of the Limitation Act. He bases his claim for compensation for non‑delivery of the portion of the consignment in question due to negligence on the part of ‑the defendants or their servants. It’ is not disputed that to a case governed by Article 30 of the Limitation Act the onus is upon the defendants to show when actually the goods or the part of the consignment could be said to, have been lost or injured. In that case the defendant would have been under a duty to show as to how the goods were dealt with in all‑possible stages as long as they were in their custody. There is no evidence to indicate as to how they have been dealt with while in the custody of the defendants. It is not disputed t1wt out of a total consignment of 1987 maunds 10 seers there hay been a shortage of 59 maunds 1 seer. There being no evidence as to when and how this shortage occurred it is not possible for the defendants to succeed even if Article 30 had applied to the facts of the present case. But apart from that, the suit seems to have been based not merely upon the loss or injury caused to the goods but upon the right of the plaintiff to get compensation for non‑delivery of the part of the con signments representing the shortage in question. As such, to me it seems, Article 31 is the proper Article for the purpose of determining the question as to whether the suit as framed is barred by limitation or not. These two Articles do not appear to be mutually conclusive. On the other hand, the plaintiff may sue for loss as contemplated under Article 30 or he may sue in the alternative within the meaning of Article 31 as well. In the case of Federation of Pakistan v. Muhammnd Iqbal (P L D 1953 Lah.460 (466)) Mr. Justice Kaikaus observed that

 

“though, in case of loss of goods, the plaintiff may still sue for non‑delivery, he is not bound to do so. He may, if it suits him, sue for loss or he may sue in the alternative on both causes of action. If the claim is based on both the alter natives, then we will apply both Articles 30 and 31. In so far as the claim is based on non‑delivery, Article 31 will apply and in so far as it is based on loss, Article 30 will apply. The plaintiff need not in so many words take alternative pleas”

 

He further observes that

 

“if the suit be within time, on either of the two bases of claim, if the facts needed for that basis be` all stated and that be not definitely excluded by the wording of the plaint, the suit shall be within time qua that basis. But in such a case the right of the plaintiff is only to be judged with respect to that claim which is within time”.

 

The same view has also been affirmed in the case of Federation of Pakistan v. Raja Fazal Dad Khan (P L D 1954 Lah. 635). In that case at page 639, their Lordships observed that

 

“the onus of proving the time when loss occurred is on the railway, for, that is within their special knowledge”.

 

So, in the absence of any evidence to show as to how the loss or shortage in question occurred, I shall think that the defendants cannot invoke the aid of Article 30 for the purpose of the present case.

 

8. With regard to the question as to whether this suit would be governed by Article 31 of the Limitation Act, the learned Advocate for the respondents has contended that.,there could be no extension of the limitation as provided in Article 31 in view of the fact that all the (one thousand) bags actually reached the destination and out of 1987 maunds 10 seers, 9nly 59 maunds and 1 seer were found to be short on 25th January 1951, and in view of the fact that there was no written acknowledgment of. the liabilities for compensation, the time could not be deemed to have been extended in the facts of the present case. The question of reasonable time according to him does not arise inasmuch as whatever goods were available had been delivered on 25th January 1951, and the plaintiff came to know of the shortage on that date as stated in paragraph 10 of the plaint. He has relied upon certain decisions in support of his contention that the suit is liable to be governed by Article 31 in the present case. He has referred to the cases of Haji Ajam Goolam Hossein v. Bombay and Persia Steam Navigation Company (I L R 26 Bom. 562) ; Mutsaddi Lal v. Bombay Baroda and Central India Ry. Co. (I L R 42 All. 380) ; G. I. P. Railway v. Ganpat (33 All. 544) ; B. N. W. R. Co. v. Kameswar Singh Bahadur (I L R 12 Pat. 67 : A I R 1933 Pat. 45) and Gopi Ram Gouri Sankar v. G. L Ry Co. (I L R 1927 Pat. 335).

 

9. Mr. A. S. Choudhury appearing for the appellant on the other hand contends that the legal test for a plaintiff in a case like this is as to whether there was any reasonable cause for him to institute the present suit beyond one year from 25th January 1951. He submits that the expression ought to be delivered’ as used in Article 31, leaves room for consideration as to whether under the circumstances the whole or part of the consignment could be expected to be delivered. According to him, until there was a definite refusal from the side of the defendants the plaintiff would be quite reasonable in expecting the delivery of the goods found short or the compensation as demanded in lieu thereof. He had relied upon the decisions in the cases of Raigarh Jute Mills Ltd. v. Commissioners ,for the Port of Calcutta (A I R 1947 Cal. 98) : Jai Narain v. The Governor‑General of India epresenting the B. & A. Rly. Calcutta (A I R 1951 Cal. 462) ; and S. ‑ Kushal Chand &. Co. v. Sree Ambica Steam Navigation Co. Ltd. (100 CLJ 45). In the case of Raigarh Jute Mills Ltd. v. Commissioners for the Port of Calcutta, Gentle, J. considered the decisions reported in I L R 42 All. 380 and A I R 1923 All. 22 corresponding to I L R 45 All. 43 in which the decisions reported in I L R 42 All. 380 and I L R 33 All. 544 had also been considered. Mr. Justice Gentle also considered the decisions in the cases of Gopi Ram Gouri Sankar v. G I P Ry. Co. Bengal and North Western Ry. Co. Ltd. v. Kameshwar Singh Bahadur and following the decision in A I R 1933 Pat. 45 held that Article 31 applied to a claim in respect of non‑delivery of a part of a consignment. In the case of Jainarain v. The Governor‑General of India, representing the B. & A. Rly. Calcutta Chakravartti, J. after reviewing several decisions including the decision reported in A I R 1947 Cal. 98 observed that it is not necessary that there should be a specific and direct acknowledgment of the particular liability which is sought to be enforced and if there is an admission of facts of which the liability in question is a necessary consequence there would be an acknowledgment within the meaning of section 19 of the Limitation Act, Chakravartti, J. approved the principle; as laid down in the case reported in A I R 1947 Cal. 98: Where Gentle, J. held that where a plaintiff brings a suit for damages for non‑delivery of a part of a consignment, the time under Article 31 begins to run from after a definite refusal to deliver‑and the cause of action arises ‘when the owner of the goods is made aware that there will be no further delivery of the undelivered part of the consignment‑ In a recent decision of the Calcutta High Court in S. Kushal Chand & Co. v. Sree Ambica Steam Navigation Co. Ltd. G. K. Mitter, J. has reviewed most of the relevant decisions on the point and though there has been a discordant note in a Full Bench decision of the Punjab High Court, as now constituted in India, yet having followed the rule of stare decisis has held that Article 31 of the Limitation Act applies and a suit against a carrier does not run so long as the carrier writes to the claimant to say that it is making enquiries in the matter and does not admit that the goods are lost. In the case of Haji Ajam Goolam Hoosein v. Bombay and Persia Steam Navigation Company relied upon by Mr. Pakrasi, it was held that the suit was not barred by the provision of the Limitation Act and it was found that Article 31 was the Article applicable to the case. I do not think that decision in any way helps the learned Advocate for the respondent. The decisions, as relied upon by Mr. Pakrashi, do not, therefore, appear to support his contention that, even if Article 31 applied, the starting point for limitation should be taken as 25th January 1951, in view of Exh. 1 (b) whereby the defendants intimated to the plaintiff in reply to the latter’s correspondence dated the 29th January 1951, that the matter was being enquired into and that the result would be communicated. In fact, the plaintiff being assured of an enquiry and a further communication on the subject, there was nothing wrong on his part to wait for some more reasonable time for settlement of the matter. In the case of Federation of Pakistan v. Raja Fazal Dad Khan it has been indicated as to when the plaintiff should institute a suit like this. It has been observed as follows at page 638 of the same report ;‑

 

A proper way of determining, when the goods ought to be delivered’, is to find out when the plaintiff could have filed a suit for compensation without being met by a plea that the suit was premature”.

 

If, in the face of a correspondence as per Exh. 1 (b), the plaintiff had filed a suit without waiting for some reasonable time, his suit was likely to be considered as a premature one and in that case he might stand the risk of losing costs at least even if he‑ could substantiate his cause of action. Though in the case cited upon, the facts as found therein, the learned Judges did not think it proper to apply or invoke Article 31 of the Limitation Act in favour of the plaintiff yet the principle as to the test as to when a suit like this should be filed as indicated by their Lordships should not be lost sight of. It seems the decision in the case of Raigarh Jute Mills Ltd. v. Commissioners for the Port of Calcutta came to be considered in some cases before the Lahore High Court as well. Although in a Single Bench decision in the case of Federation of Pakistan through General Manager North Western Railway Lahore v. The Co‑opera tive Insurance Society of Pakistan Ltd. Lahore (P L D 1956 Lah. 878) a distinction was made upon evidence on record so far as the principle laid down in A I R 1947 Cal. 98 was concerned; yet, in another decision of a Division Bench of the same Court, in the case of Firm Muhammad Sadiq Imam Din v. The Federation of Pakistan (P L D 1956 Lah. 1093) following the principle as indicated in A I R 1947 Cal. 98 their Lordships held that “the time under Article 31 of the Limitation Act would run from definite refusal or declaration of inability to deliver the goods made by the defendant, and that the cause of action in such cases would arise when the owner of the goods is made aware that there would be no further delivery”.

 

Applying this test to the facts of the present case, there being no evidence on record, far from it being case of the defendant to the effect that any further correspondence was addressed by the defendant to the plaintiff after 19th February 1951, indicating or communicating that they were not in a position to accede to the request or claim of the plaintiff, I do not think it proper to hold that the plaintiff was not right in waiting for a few months more for a settlement of the matter in dispute. It is unfortunate that the defendants having a large organisation of their own did not care to intimate as to whether they were in a position to settle up or dispose of the question in a business‑like manner. If they had really made up their minds not to allow the claim of the plaintiff they should have plainly told the plaintiff in that way. If on the other hand, they were in a difficult position to ascertain as to what happened to the goods or the part of the consignment in question, they should have addressed accordingly the plaintiff and settled up the matter accordingly. It cannot be suggested that a Company concern like that of the defendants was not aware of the position in law in so far their dealings with various parties might be affected by Article 30 or Article 31 of the Limitation Act. In view of the conduct of the defendants and in view of the fact that nothing appears on record to suggest that the defendants expressly denied their liability in question, it, can safely be assumed that they were simply keeping the plaintiff in unnecessary suspense with an ulterior end in view to take shelter under either of the two Articles of the Limitation Act. If they had really made up their mind and were certain that the quantity of goods which appeared to be wanting on 25th January 1951, could no longer be traced, there was no sense in writing a letter on 19th February 1951, to the effect that the matter would be enquired into and further communication would be addressed. For all these and other reasons I am inclined to think that the suit cannot be said to have been barred by limitation either under Article 30 or Article 31 of the Limitation Act. The learned Additional District Judge does not appear to have considered these aspects of the question and I do not think his decision on this point is quite in accordance with the legal principle involved in the present case. The shortage of 59 ends. and 1 seer being not disputed, It matters very little whether all the containers or bags reached the destination or not.

 

10. On merits, the learned Advocate for the respondent submits that in view of the special contract as per Exh: B the onus which lay initially on his client under section 9 of the Carriers Act should be deemed to have been shifted on to the plaintiff. I am afraid section 9 is very clear on this point. This is a suit for realisation of compensation on the ground of negligence on the part of the carrier or its servants or agents and, according to section 9, it is not necessary for the plaintiff to prove that such loss, damages or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents. In fact, no evidence has been led as to how the ‘shortage occurred during the period when the goods were in the custody of the defendants. The special contract as per Risk Note, Exh. B, might reduce the quantum of liability if properly shown by the defendants but, in any case, in view of section 8 of the Carriers Act, it cannot be suggested that while limiting the liability within the meaning of section 6 it can be reduced to nil. It is well settled that parties cannot contract themselves out of the statute. The Statute fixes and lays down the principle of liability and if, by special contract, the parties were allowed to agree to a condition exempting the carrier from all liabilities whatsoever then the shipper or others might be com pelled to book their goods at the mercy of the carrier concerned: Section 6, in my view, enables the parties to reduce their liabilities in certain circumstances but, in view ‘of section 8 of the Carriers Act, it is hardly tenable to suggest that even without proof of relevant or requisite circumstances the liability as such can be said to be nil altogether. The scheme of the Carriers Act does hot, in my view, indicate that the carrier can be regarded by special contract to be absolutely free from all liabilities what‑ 1 If there is a special contract, then evidence should have been adduced to show as to the extent or degree of reduction claimed on the basis of such special condition. As this is, a case based ‑on the negligence on the part of the defendants, they would not be entitled to limit their liability upon the facts of the present case by any special contract in view of section 8 of the Carriers Act. A similar view seems to have been taken by Biswas, J. in a decision in the case of River Steam Navigation Co. Ltd. and another v. Manindra Nath Pathak and another (51 C W N 551 (554)).

 

11. For all these reasons, I am inclined to think that even on merits the onus of proof which lay upon the defendants by virtue of section 9 of the Carriers Act cannot be said to have been discharged by them and the plaintiff should, accordingly, succeed.

 

12. No other contention’s were advanced before me by the learned Advocate for the respondents.

 

13. In the result, this appeal succeeds and the judgment and decree of the learned Additional District Judge are set aside and those of the trial Court restored:

14. The defendants‑respondents will pay costs throughout.

 

Z. A.S.

 

Appeal allowed.

 

 

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