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1969 Supreme(Pat) 152
PATNA HIGH COURT
N.L.Untwalia and Anwar Ahmad JJ.
Union Of India
Versus
Jogendra Chandra Naha
Appeal From Appellate Decree No. 58 of 1965 ;
Decided On : OCTOBER 04, 1969
In cases of short delivery of goods, the starting point of limitation under Article 30 of the Limitation Act, 1908, is the date when open delivery is given, unless contrary facts are pleaded and proved by the defendant.
Headnote:
LIMITATION ACT, 1908 - ARTICLE 30 - SHORT DELIVERY OF GOODS - STARTING POINT OF LIMITATION - LOSS OF GOODS.
Fact of the Case:
The plaintiff filed a suit for compensation against the defendant railway for short delivery of 121 pairs of shoes and damage to 15 pairs out of a consignment of 163 pairs. The consignment was booked on 12th July 1956 and arrived at the destination on 18th July 1956. The plaintiff took open delivery of the consignment on 3rd August 1956 and filed the suit on 30th October 1957.
Finding of the Court:
The court held that the suit was not barred by limitation as the starting point of limitation was the date of open delivery, i.e., 3rd August 1956, and not the date when the goods were made available for delivery.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the plaintiff was entitled to compensation for loss of profit?
Ratio Decidendi: 1. The court held that in cases of short delivery of goods, the starting point of limitation under Article 30 of the Limitation Act, 1908, is the date when open delivery is given, unless contrary facts are pleaded and proved by the defendant. 2. The court held that the plaintiff was not entitled to compensation for loss of profit as the compensation to which he was entitled was the market value of the goods not delivered and damages for deterioration to a part of the consignment.
Final Decision: The appeal was allowed in part. The judgment and decree of the courts below were modified to the extent that the plaintiff was not entitled to the sum of Rs. 199.37 paise claimed by him on account of loss of profit at 10%. In other respects, the judgment and decree of the courts below were affirmed.
N.L.Untwalia, J.
1. This is a defendants second appeal and arises out of a suit for compensation filed by the plaintiff respondent, for short delivery of 121 pairs of shoes and some damage to 15 pairs out of the consignment of shoes contained in four cases. The total number of pairs packed in the four cases was 163. The consignment was booked on the 12th July, 1956 from Armanian Ghat to Argora, both despatching and the destination stations being on the Railway line of the South Eastern Railway. The consignment arrived at Argora on the 18th July, 3956. When the respondent went to take delivery of the consignment, he found the cases in a pilfered condition. He, therefore, asked for open delivery of the consignment, which was granted by the appellant on the 3rd August, 1956.
The suit was filed on the 30th October, 1957, claiming 1,945 as the price of 121 pairs of shoes delivered short, Rs. 23/9/-on account of the damage to the 15 pairs, the damage assessed at the time of open delivery being 10% of the total value of the said 15 pairs, Rs. 25 on account of packing charges and Rs. 199/6/- on account of loss of profit at 10% on the total value of Rs. 1,993/9/-. The total claim in the suit was for a sum of Rs. 2192/15/-. The suit has been decreed in full by the trial court. The appeal preferred by the Union of India has been dismissed by the appellate court. Therefore, it has come to this court in second appeal.
2. Only two points were urged by Mr. P. K. Bose, Learned Counsel for the appellant, in support of the appeal (i) that the suit was barred by limitation and the courts below have committed an error in holding it otherwise, and (ii) that in any view of the matter a decree for the loss of profit at 10% ought not to have been granted, that is to say, a sum of Rs. 199/6/- should not have been included in the amount of compensation decreed.
3. It is to be pointed out at the outset that it is not a case of non-delivery, either of the whole of the consignment or of a part of the consignment in the sense of nondelivery of one or more full packages or cases; it is a case of short delivery which at times in some of the decisions has been characterised as non-delivery of a part of the consignment. In the instant case four cases were delivered, no doubt, but the full contents despatched in the four cases were not delivered. There was a short delivery of 121 pairs and 15 pairs were delivered in a deteriorated condition. In the situation, a question arises as to whether it is a case which should be governed by Article 30 of the Limitation Act 1908, with which we are concerned in this case or it would be a case which would be governed by Article 31. In either view of the matter, what would be the starting point of limitation.
4. Under Article 31, the starting point or a period of one year is "when the goods ought to have been delivered", provided it is a suit for compensation against a carrier for non-delivery of goods; while, under Article 30 the starting point for the same would be when the loss or injury occurs in a suit for compensation against a carrier for losing or injuring goods. There is no difficulty in taking the view that, in so far as the amount claimed by way of compensation for injury to the 15 pairs of shoes is concerned, the starting point would be the 3rd August, 1956 when the injury became known to the plaintiff and that would be so in absence of any fact pleaded or proved by the defendant to show that the injury had occurred prior to the date. This is the view which has been expressed by the Supreme Court in Jethmull Bhojraj V/s. Darjeeling Himalayan Rly. Co. Ltd., AIR 1962 SC 1879. Following this decision in regard to the case of deterioration in the value of the goods, the same view has been taken by a Bench of this Court in Union of India V/s. Gauri Shankar Badri Narain, 1968 BLJR 568. The question, however, arises as to whether in a case of short delivery, the shortage being detected when open delivery was giv
