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Sunday, March 2, 2014

Rule 30 of schedule II of Rules framed under Carriage by Air Act, 1972, and sec. 3,14, and sec. 29 of Indian Limitation Act - Limitation mentioned in special enactment prevails over the general limitation Act -Cargo damaged in transit - Cargo arrived on 17.10.1996 - all bags in cargo in a damaged and wet condition- on 2-1-1997 a notice of loss was sent - independent surveyor appointed as the loss was took place in the custody of first defendant -The consignment was insured with the second plaintiff. As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff - filed OP in Consumer forum - Forum dismissed the same - Civil suit filed - barred by limitation - their Lordships of High court held that as per Rule 30 of the Schedule II of Carriage by Air Act, 1972, the right to damages shall be extinguished if an action is not brought within two years from the date of arrival of the aircraft - since it is an special law , general law of limitation not applies - so the time consumed in wrong forum does not save the limitation and as such confirmed the dismissal orders of Trial court and set aside the appellant court

Rule 30 of schedule II of Rules framed under Carriage by Air Act, 1972, and sec. 3,14, and sec. 29 of Indian Limitation Act - Limitation mentioned in special enactment prevails over the general limitation Act -Cargo damaged in transit - Cargo arrived on 17.10.1996 - all bags in cargo in a damaged and wet condition- on 2-1-1997 a notice of loss was sent - independent surveyor appointed as the loss was took place in the custody of first defendant -The consignment was insured with the second plaintiff.     As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff - filed OP in Consumer forum - Forum dismissed the same - Civil suit filed - barred by limitation - their Lordships of High court held that as per Rule 30 of the Schedule II of Carriage by Air Act, 1972, the right to damages shall be extinguished if an action is not brought within two years from the date of arrival of the aircraft - since it is an special law , general law of limitation not applies - so the time consumed in wrong forum does not save the limitation and as such confirmed the dismissal orders of Trial court and set aside the appellant court =

The cargo belonging to the first plaintiff  was entrusted to the first defendant, who issued the Master Airway Bill and undertook to carry the cargo.    The second defendant, on arrival of the cargo, collected the freight charges from the plaintiffs and the first plaintiff, on payment, collected the cargo.    After the customs examination, the first plaintiff found all the bags in the cargo in a damaged and wet condition thereby defeating the purpose for which the cargo was imported.    On 02.01.1997, a notice of loss was sent to the first defendant holding them liable for the loss.     An independent  surveyor was also appointed to find the quantum the loss as the damage took place while in the custody of the first defendant.    The first defendant as the carrier and the second defendant as the consolidator are jointly and severally liable to pay the loss to the plaintiffs.     The consignment was insured with the second plaintiff.     As per the terms and conditions of the Policy, the second plaintiff processed the claim of the first plaintiff and paid a sum of Rs.2,67,433/- for which the first plaintiff also executed a letter of Subrogation and Special Power of Attorney in favour of the second plaintiff on the strength of which the plaintiffs together filed a complaint bearing O.P. No. 828 of 1998  before the District Consumer Disputes Redressal Forum, Chennai South, on 18.9.1998 and the same was dismissed on 24.5.2000 with liberty to file a Civil Suit.    Since the plaintiffs prosecuted the matter before the District Consumer Disputes Redressal Forum in good faith, the plaintiffs have sought for exclusion of the period spent before the District Consumer Disputes Redressal Forum under Section 14 of the Limitation Act.     Hence, the suit filed is within time according to the plaintiffs.   =
The suit was contested by the first defendant on the ground that the suit is not filed within two years from 17.10.1996 as per Carriage by Air Act, 1972, which is a special enactment.=
Trial Court dismissed the suit against the second defendant and decreed the suit only against the first defendant.     Aggrieved by the same, the first defendant had preferred an appeal in A.S. No.110 of 2005 on the file of the 5th Additional Judge, City Civil Court, Chennai, who had after careful consideration of the facts and law, allowed the appeal and dismissed the suit. =
Second appeal framed issues 
(i) Is Carriage by Air Act of 1972, an International Law?

(ii) Will a Special Enactment exclude the operation of Limitation Act in the absence of specific exclusion?

(iii) Is not a plaintiff / Insurer entitled to avail the benefit of provisions of Limitation Act, viz., Section 14 and Section 29(2), particularly when they have initiated 'action' against the respondent Air Carrier by filing a complaint against them within the time prescribed under the special enactment viz., Carriage by Air Act 1972 as well as Consumer Protection Act.=
The admitted facts are that the cargo arrived at Chennai on 17.10.1996.   The Original Petition before the District Consumer Disputes Redressal Forum was filed on 18.09.1998 and District Consumer Disputes Redressal Forum dismissed the O.P. on 24.5.2000 based the decision in Laxmi Engineering Works   vs.  P.S.G. Industrial Institute reported in 1995 (2) CPJ 1 (SC) which held that the Insurance Companies do not come under the definition "Consumer".     After the dismissal of the O.P., the present suit was filed on 16.6.2000, which is now said to be hit by limitation.
M/s Air India, Bombay Airport and another  vs.  M/s Asia Tanning Co. and another reported in  2003 (1) LW 622, wherein the Division Bench of this Court, in paragraph 7 of the judgment, was precisely on the point.    
Paragraph 7 of the judgment reads as follows:-
"7. Section 4 of the Act deals with the application of amended Convention (Warsaw Convention 1929 as amended by the Hague Protocol, 1955) to India. Sub-section (1) thereof reads thus:
       "The Rules contained in the Second Schedule being the provisions of the amended Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage."
       The Rule of Limitation prescribed in Rule 30 of the Second Schedule is thus a special Rule of Limitation in respect of carriage by air and will prevail over the general law of limitation. The Rules prescribe the forum and the period before which the action is to be brought. Those provisions dealing with the forum and the period of limitation are meant to be the law governing actions against air carriers. Questions of procedure are governed by the law of the Court in which the action is brought, as provided in Rule 29(2) of the Second Schedule to the Act."

16. From the foregoing discussion, it is clear that the plaintiffs instead of going to the Civil Court, moved the District Consumer Disputes Redressal Forum to claim their damages by choice.     The same was rightly dismissed holding firstly that the Insurance Company is not a consumer and secondly, that the transaction is of a commercial nature.     There was no impediment for the plaintiffs to move the Civil Court by filing the suit on the date of cause of action, viz., on 17.10.1996.     Having chosen the wrong forum to make claim, the plaintiffs now cannot take advantage of their own wrong.    Thus, the questions of law are answered in favour of the defendants.    The plaintiff Insurance Company has to suffer for its own imprudent act and the question of limitation is held in favour of the defendants.   

In the result, the Second Appeal is dismissed confirming the judgment and decree dated 17.10.2005 passed by the V Additional Judge, City Civil Court, Chennai, in A.S. No. 110 of 2005.     However, there shall be no order as to costs.

2014 ( Feb. Part )judis.nic.in/judis_chennai/filename=44906

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