Report No. 38
146. English law as to limitation.-
The corresponding provision in England is quoted below1:-
"(3) No proceedings shall lie against the Crown under sub-section (2) of section nine of the Crown Proceedings Act, 1947 (which authorises the taking of proceedings against the Crown in respect of loss or damage to Registered inland postal packets) unless the proceedings are begun within the twelve months beginning with the date on which the packet in question was posted".
The provision has been thus explained2
"Sub-section (3).-This is the one exception to the general rule of parity between Crown and subject. When the Grown Proceedings Act, 1947, was passed, the Crown had the benefit of the twelve months period under the Limitation Act, 1939, section 21, so that no special provision was required. With the abolition of section 21, however, it was felt that serious embarrassment would be caused to the Post Office, if, in relation to their liability for registered inland postage packages, the old twelve months period was not re-enacted.
To check a claim and trace out the relevant documents (which ex hypothesi would have to be kept) would after that lapse of time be inordinately expensive, if not impossible, and might well result in a mass of bogus claims to be paid because they could not be refuted. Any honest person would know about, and claim for a lost registered package long before twelve months had gone by, and it seems not unreasonable that a special period should exist for this special type of case. The old limitation period of twelve months is accordingly re-enacted by this sub-section".
1. Section 5, sub-section (3), of the Law Reform (Limitation of Actions) Act, 1954 (2 and Eliz. 2, C. 36).
2. Stephen Chapman Statutes on the Law of Torts, (1962), p. 444.
147. Meaning of the expression "loss", "non-delivery", etc. and scope of relevant articles relating to carriers.-We are aware, that the various expressions used in Articles 10 and 11 (old Articles 30-31), have raised several questions.
Thus, one question is as to the precise meaning of the expression "loss" in Article 301.
As to the starting point under Article 30, it has been held, that time does not run from date of knowledge of loss, but from date of loss2-3-4.
"Loss" in Article 30 means loss to the carrier5.
1. See Jai Narain v. G.G. of India, AIR 1951 Cal 463 (464), para. 12.
2. Fusrhay v. Union of India, AIR 1960 Cal 458 (462), para. 27.
3. E.I. Rly. v. Gopi Lal, AIR 1941 Cal 304.
4. O.T. Rly. v. Karam Chand, AIR 1958 All 234 (253), para. 66.
5. Jugal Kishore v. G.I.P. Rly., ILR 45 All 43: AIR 1923 All 22.
148. Under Article 30, the burden is on the defendant (who seeks to non-suit the plaintiff on the ground of limitation) to prove that the loss occurred before one year from suit1-2.
1. As to "loss" in section 72, Railways Act, see G.G. in Council v. Musaddi Lal, (1961) 3 SCR 647 (651).
2. Union of India v. Amar Singh, (1960) 2 SCR 75 (88): AIR 1960 SC 233 (235).
149. Another question is, as to the meaning of the expression "non-delivery" in Article 31. The expression has now been given a wide meaning by the case-law.
"Non-delivery" of goods may be due to a variety of causes-
"The word "non-delivery" is a genus. Non-delivery of goods may be due to a variety of causes, e.g., (1) loss of the goods by the carrier, that is to say, loss owing to acts such as theft and robbery. (2) Deterioration owing to natural causes. (3) Destruction owing to natural causes such as flood or artificial causes, e.g. incendiarism. (4) Conversion. (5) Detention, e.g., where there is a dispute about wharfage and the railway administration wrongfully detains the goods. (6) Misdelivery either by honest mistake or on account of fraud. (7) Capricious act of the railway employees, e.g., the goods even on arrival at the destination are not delivered to the owner without any rhyme or reason. (8) Wrongful sale of goods, e.g., where the railway administration wrongfully sells the goods on arrival at the destinations.1.
Whatever be the cause of non-delivery, Article 31 applies2.
1. Cf. G.G. in Council v. Mahabir Ram, AIR 1952 All 891 (896).
2. See Union of India v. Ainkumar AIR 1962 MP 190 (192), para. 5.
150. The starting point in old Article 31, as indicated by the words "ought to be delivered", may not be easy to apply, in a particular case1-2. The matter has been discussed elaborately in a judgment approved by the Supreme Court3-4.
1. See Mitra, Law of Limitation and Prescription, (1949), p. 409
2. See also Anandalal v. Union of India, AIR 1961 SC 108 (110), para. 5.
3. Bootamal v. Union of India, (1963) 1 SCR 70 (76, 78), approving Dominion of India v. Firm Aminchand, AIR 1957 Punj 49 (FB).
4. The discussion in Dominion of India v. Firm Amir Chand, AIR 1957 Punj 49 (54, 55) para. 21-24 (FB) may be seen.
151. Most High Courts have taken the view that Article 31 applies to suits on contracts, as well as to suits on tort. There is, however, some uncertainty as to whether Article 30 applies to suit on contracts1.
1. See Union of India v. Probhat Marketing Co., AIR 1953 Assam 190 (192), para. 10. (Suit for damages for breach of contract for shortage, Article 115 applies).
152. It may, sometimes, be difficult to decide which of the two articles apply to a case of short delivery1-2.
It is, however, clear, that where the goods are delivered but in a damaged condition, Article 30 applies3-4
1. See the rival contentions put forth in Shambhuram v. Union of India, AIR 1958 Pat 118 (119), para. 4.
2. See case law discussed in O.T. Rly. v. Karam Chand, AIR 1958 All 234, paras. 12, 21, 40, 42 (FB).
3. Jetmull v. D.H. Rly., AIR 1962 SC 1879 (1885), para. 23.
4. See also Dominion of India v. Nagardas and Co., AIR 1955 Mad 235 (236).
153. Further, the question is sometimes raised if there may be some overlapping between the two articles1 or whether the two are distinct from each other2-3.
1. Cf. National Swadeshi Stores v. G.G. Council, AIR 1948 Sind 26 (28), para. 18.
2. For an explanation of the distinction between the two articles, see O.T. Rly. v. Karam Chand, AIR 1958 All 234 (246, 253), paras. 23 and 60 (FB) (Article 30 applies only when the carrier loses or injures the goods. It does not apply when the loss occurs to the plaintiff for some other fault of the carrier. Article 31 was applied for loss owing to misconduct).
3. See Junta Datt v. Union of India, AIR 1953 Pat 351 (368) para. 7 (Sinha J.) (Under Article 30, the goods should be lost or damaged. Under Article 31, the goods should, not have been delivered, or there have been delay).
154. These questions cannot, however, be considered in this Report, For the present purpose, we have to adopt the existing language of the articles in question1.
1. See para. 144, supra.
155. The Articles apply not only to a suit by the consignee, but also to a suit by the consignor1-2-3.
1. Mutsaddi v. B.N. Rly., 1930 ILR 42 All 390: AIR 1992 All 157 (158).
2. Chiranji Lal v. B.N. Rly., (1924) 52 Cal 372: AIR 125 Cal 559 (561). (Article 30 applies only when the carrier loses the goods).
3. Vally Mohamad v. Netherland S.N. Co. Ltd., AIR 1924 Cal 173 (175) (Reviews cases).
156. The question where exactly the new articles1 should be placed, has caused us some anxiety. Articles 10 and 11 (of. the Limitation Act of 1963) are grouped under the heading "Suits on Contracts". If the new articles are placed immediately after them, there is, no doubt, a possibility, that an argument may be advanced that they are confined to suits on contracts. Now, if the liability of the Post Office is regarded as purely statutory2-3-4-5, then the placing of the new Articles after Articles 10 and 11 may become inappropriate. On the whole, however, we think6-7 that it is convenient to place them after Articles 10 and 11, because of the similarity in the language of those Articles (existing Articles 10, 11) and the proposed new Articles.
5. See also paras. 135 and 141-143, supra.
2. See paras. 25-29 and 34, supra.
3. Cf. Lord Denning's judgment, referred to in para. 29, supra.
4. As to Indian cases on statutory liability, see -
(i) Secretary of State v. Guru Prasad, 1892 ILR 20 Cal 51, and
(ii) Mathura Prasad v. Gaya Municipality, AIR 1938 Pat 192 (Article 120 applied),
5. See also paras. 135 and 141-143, supra.
6. See also para. 142, supra.
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