Malladi Seetharama Sastri vs The Hyderabad State

Mack, J.—The petitioner is the plaintiff, a merchant of Bezwada, who sued the Nizam State Railway of Hyderabad for the recovery of Rs.

305 being the value of some machinery he consigned on 21st August, 1944, from Bezwada to the Circar Engineering Company, Lahore. It is

common ground that the goods had to be carried over three railways. Plaintiff received from the consignee a letter Exhibit P-1 dated 7th

November, 1944, to the effect that the goods had not reached him. He sent a notice to the railway company on 8th February 1945, complaining

that the goods had not been delivered and asking for payment of their value. To this letter he was not vouchsafed any reply. He then, after going

through the necessary formalities, filed this suit on 31st October, 1945. The learned Subordinate Judge dismissed it as time barred under Article 31

of the Limitation. Act which prescribes as the period; of limitation for a suit against a carrier for compensation, non-delivery or delay in delivering

goods one year from the date "" when the goods ought to be delivered"". The learned Subordinate Judge attached importance to the evidence of a

parcels clerk of the Bezwada railway station who deposed that it would normally take one week by passenger train and 15 days by goods train for

a consignment to reach Lahore. On this basis the Subordinate Judge held that the suit was filed out of time. The view taken by him is obvioulsy

incorrect and, cannot be suported.

Two limitation Articles which can govern this case are Article 30 which prescribes for suits against a carrier for compensation for losing or

injuring goods one year from the date when the loss or injury occurred. In The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs.

Bhimappa and Another, , a Bench of this Court observed as regards Article 30 that the burden of proving when the goods were lost is on the

railway company and that in that case they had not proved when they were lost and there was nothing in the evidence to show that they were lost

more than one year before the institution of the suit. Those observations are relevant and pertinent to the facts of the present suit. As regards

Article 31, the difficulty it raises is that it fixes no specific time for the delivery of the goods, the ordinary rule being that goods have to be delivered

by a carrier within a reasonable time. What is a reasonable time has to depend on the facts of each case. In Jugal Kishore v. Great Indian

Peninsular Railway ILR (1922) All. 43, the plaintiff consigned goods on the 28th August, 1918, and filed his suit for damages on the 31st March,

1920. For more than a year plaintiff had been put off by various statements on the part of the railway companies to the effect that the matter was

being enquired into. It was held that the suit was in time and not barred, whether Article 30, or Article 31 was considered applicable to the facts.

That suit was filed about a year and eight months after the consignment, whereas the present suit was filed less than one year and three months

after the consignment. The learned Subordinate Judge relied on M.A.P. Palanichami Nadar Vs. The Governor-General of India in Council, for the

position that time would begin to run under Article 31 from the date of a definite refusal or declaration or inability by the railway company to

deliver the lost goods. But that construction of Article 31 has been obviously misapplied by the learned Subordinate Judge to the facts of this suit.

In the cases in which that construction was given, it merely enlarged the period within which a suit should be brought from the date on which, after

a protracted correspondence with the railway company, they expressed inability to give delivery of the goods for some reason or other. In the

present case, the railway company did not even accord the plaintiff the courtesy of a reply to his original letter of complaint. In fact the decision in

M.A.P. Palanichami Nadar Vs. The Governor-General of India in Council, . gives very strong support following as it does, Jugal Kishore v. Great

Indian Peninsular Railway ILR (1922) All. 43 and The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs. Bhimappa and Another, ,

to the present case of the plaintiff. It has also to be remembered that in 1944 railways were afflicted by war conditions and congestion in transit,

and two months and 16 days could not be, in any event, considered to be an unreasonable period within which a railway company ought to have

delivered the goods. Wheat the plaintiff received the letter Exhibit P-1 from his consignee in Lahore that the goods had not yet reached there, he

can scarcely be blamed for giving a little further time before making his complaint to the railway company. In any event the suit was filed within a

year of Exhibit P-1. There is no substance in this technical plea of limitation taken on behalf of the railway. Nor can I see any substance in another

technical plea to the effect that the railway company has not been correctly impleaded in the suit. The defendant was originally impleaded as the

General Manager of the Nizam State Railway and this, on objection being taken by the defendant, was amended to Hyderabad State represented

by the General Manager of the Nizam State Railway. Even this amended description of the defendant is now objected to by the learned advocate

for the respondent railway on grounds which I am unable to appreciate. It is not disputed, as the learned Subordinate Judge has also found, that

the value of the consignment of machinery is Rs. 300

The petition is allowed with costs and the suit decreed as prayed for against the defendant railway also with full costs.