1. The applicant for revision sued the Great Indian Peninsula Railway Company on the 27th April, 1914 for compensation in respect of a consignment of grease booked on the 3rd January, 1913 from Belanganj (Agra) to Nagpur at owner's risk. The plaint alleged that the cause of action arose on or before the 26th January, 1913 and that the Company was liable for non-delivery of the consignment, inasmuch as its employees had been guilty of wilful neglect not covered by the risk-note taken-from the consignor under sub-Section (2)(b), Section 72 of the Indian Railways Act, 1890. The plaintiff admitted having been offered 31 tins, but pleaded that of these 28 contained castoroil while three containing grease, were not part of the consignment in question.
2. The Company pleaded that the suit was barred under Article 31 of the Limitation Schedule and that the risk-note protected it from liability.
3. It was further alleged for the defence that 24 out of the 31 tins offered to the plaintiff contained grease. As to the remaining 7, the written statement is not clear, but the suggestion seems to be that they too formed part of the consignment, the Company having accepted the tins as “said to contain grease.”
4. The following issues were framed on the written pleadings, no oral statements by the parties or their Pleaders being recorded:—
(1) Is the present claim time-barred?
(2) Whether the plaintiff has purchased the goods consigned as alleged by him?
(3) Whether the 31 tins consigned contained grease and whether the tins were shown to and accepted as such by the defendant's servants at Belanganj?
(4) Does the Railway Receipt passed to the consignor, contain the words “said to contain grease?” If so, whether these words absolve the defendant Company from liability to the plaintiff?
(5) Does the fact of the original consignor having executed a risk-note in Form B absolutely absolve the defendant from all liability as carrier?
(6) Did the defendant wrongfully refuse to accept delivery of 31 tins out of which only three contained grease?
5. The parties were not asked to adduce any oral evidence. Arguments were heard on the 1st and 5th issues only and the suit was then dismissed, the Judge holding the claim to be time-barred under Article 31 of the Limitation Schedule and the Company to be free from liability by virtue of the risk-note. The document thus relied on, was not produced in the Small Cause Court, but has been put in here; it is admittedly not in the form now current, which will be found reproduced on page 181, Part I, Gazette of India, 1907, in Notification No. 1851, dated the 27th February, 1907.
6. It is contended here on the plaintiff's behalf that Article 115, not Article 31, of the Limitation Schedule applies to the facts alleged by him. The former relates to suits
“for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for,”
and the argument for the applicant is that by reason of the risk-note, the defendant Company ceased to be a common carrier.
7. Authority for the applicant's contention exists in British India Steam Navigation Company v. Hajee Mahomed Esack & Co. (1881) 3 Mad. 107, Kalu Ram Maigraj v. Madras Railway Company (1881) 3 Mad 240, Mohansing Chawan v. Conder (1883) 7 Bom. 478 and Danmull v. British India Steam Navigation Company (1886) 12 Cal. 477. But the Madras and Calcutta decisions were dissented from in Great Indian Peninsula Railway Company v. Raisett Chandmull (1895) 19 Bom. 165, and subsequently to all these, Article 31 of the Schedule in the Limitation Act of 1877 was amended by the Carriers Act, 1899, which added thereto the words “non-delivery of, or” next before the word ‘delay’ and reduced the period of limitation from two years to one year. Since that amendment, it has been held by Fulton and Starling, JJ., in Haji Ajam Golam Hoosein v. Bombay and Persia Steam Navigation Company (1902) 26 Bom. 562 that Article 31, not Article 115, applies to a suit against a carrier for compensation for non-delivery of goods. This decision was followed by a Full Bench of the Punjab Chief Court in Moti Ram v. East Indian Railway Company (1906) 108 P.R 1906. A similar view was taken in Indian General Navigation and Railway Company v. Nanda Lal Banik (1909) 3 I.C 469 and in The Great Indian Peninsula Railway v. Ganpat Rai (1911) 33 All. 544 , 10 I.C 122.
8. The theory that a common carrier ceases to fill that character if he enters into a special contract limiting his liability, is not supported by any authority. Both the Carriers Act, 1865, and the Indian Railways Act, 1890, expressly contemplate such limitations, and in neither do I find any indication that making a special contract involves the change of status contended for. Moreover, the wording of Article 31, Limitation Schedule, is perfectly general and I can see no reason why its application should be restricted to persons who carry in the course of business as ‘common’ carriers. I would also observe that the definition of a “common carrier” in Section 2 of the Carriers Act, 1865, is framed without reference to the extent of his liability.
9. The plaintiff's case, as put in the Small Cause Court, is clearly one of non-delivery in respect of the entire consignment sent from Belanganj. There was no suggestion by either side that the 31 tins or any of them were lost. The District Traffic Manager's letter of the 5th May, 1913, to which I am referred by the applicant's Counsel, speaks of a ‘shortage’ extending to 7 tins and insists that 24 tins reached Nagpur and should be taken over by the consignee: it contains nothing to indicate what had happened to the 7 tins not at Nagpur. In these circumstances, there is no room for the plea, now taken for the first time, that the claim falls under Article 30 of the Limitation Schedule.
10. It was urged finally that if Article 31 is to be applied, the case should be remanded for a finding as to when the consignment ought to have been delivered at Nagpur. In my opinion, no useful purpose could be served by a remand. The plaintiff himself described his cause of action as having arisen on the 26th January, 1913, and it is certain that 23 days is an ample time for the transit between Belanganj and Nagpur. The expression “when the goods ought to be delivered” in the said Article is identical with that used in Article 51, and there being no usage or time fixed, I think the time for delivery must be a reasonable time after the goods were made over to the Company at Agra: of Boiddonath Shah v. Lalunnissa Bibee (1867) 7 W.R 164. The plaintiff has allowed three months over and above one year from the 26th January, 1913 to elapse before he instituted his suit.
11. Holding that Article 31 of the Limitation Schedule was rightly applied to the facts alleged by the plaintiff, I dismiss this application with costs. Rs. 15 are allowed as Legal Practitioner's fee in this Court.
P.N/R.K
12. Application dismissed.