Reckoning of period of limitation for filing suit against a carrier.

The plaintiffs filed this suit against the Union of India represented by General Managers of B.B. and C.I.,G.I.P. and Southern Railways for recovery of Rs. 1,453-13-6 as compensation for the damage done to six bales of cotton cloth consigned by the Surat Cotton Spinning and Weaving Mills, Ltd., to the plaintiffs. The Surat Cotton and Spinning Mills, Ltd. consigned six bales of cotton cloth on 25th August, 1950 to the plaintiffs. When the bales reached Madras they were found wet and thereupon delivery was taken on 21st September, 1950, in the presence of the Railway Inspector who made an endorsement to the effect that all the six bales were found damaged by water on all sides. Water had penetrated far into the bales and wettage could be felt on the gunny covering. Packing was gunny covering with brown paper packing inside. The plaintiffs took delivery on 21st September, 1950 in the expectation that the compensation of Rs. 1,453-13-6 which was fixed as damages to the goods would be paid by the railway authorities. There was correspondence between the plaintiffs and the railway company and by a letter, dated 26th December, 1950, the railway company rejected the claim for compensation on the ground that the bales were not packed with waterproof material and there was no misconduct on the part of the railway servants. The plaintiffs filed the suit on 19th December, 1951.

The trial Court came to the conclusion that the packing by the mills was as per the rules of the railway and that the plaintiffs are entitled to relief. It also found that the railway was guilty of recklessness and carelessness in performance of its duty. The trial Court held that the suit was within time under Articles 30 and 31 because the plaintiffs were entitled to the benefit of the period during which time the matter was in correspondence with the railway company.

On appeal, the Additional Judge, City Civil Court, confirmed the finding of the trial Court that the bales were in sound condition and the damage was caused owing to the carelessness and misconduct on the part of the railway servants. Against the decision of the Additional Judge, City Civil Court, Madras, the railway company has preferred this appeal.

When this appeal came up before Jagadisan, J., he found that the question is one of frequent occurrence and as a substantial question of law was involved and as there was conflict of judicial opinion, placed it before my Lord the Chief Justice for directions to post the case before a Division Bench and in pursuance of the order of my Lord the Chief Justice this case is posted before us.

Both the Courts have come to the conclusion that when the goods were despatched they were properly packed and the damage was due to the carelessness and misconduct on the part of the railway servants. We are in complete agreement with the findings of fact and the learned counsel for the railways did not attempt to dispute the finding. The only contention which the learned counsel raised was that the suit is barred by limitation.

He contended that the goods were in a damaged condition and open delivery was given by the Railway Inspector to the plaintiffs on 21st September, 1950 after noting the details of damage. The plaintiffs were therefore fully aware of the loss or injury to the goods on 21st September, 1950. The suit was filed on 19th December, 1951 and therefore excluding the time taken for notice the suit ought to have been filed on 21st November, 1951 and therefore it is out of time. The learned counsel for the railway contended that Article 30 provides for a suit against a carrier for compensation for losing or injuring the goods and the period of limitation is one year from the time when the loss or injury occurs. He submits that the loss to the goods occurred before 21st September, 1950 when the plaintiffs became aware of the injury to the goods and in any event the period of limitation will start from 21st September, 1950. We feel the contention is so