Civil Procedure - Carriers & Transportation - Limitation Act, 1963, s. 29(2) - Carriage by Air Act, 1972, r. 30, sch. II - Suit for recovery of money and damages - Limitation - Legality - Held, it could be reasonably seen that the 1972 Act, being an International Law, s. 29(1) and (2) of 1963 would not have applicability over the same as the International Law would prevail over the General Laws - Contention of appellants that the 1963, being local law, would be made applicable to instant case, was untenable and could not be accepted - It was clear that appellants instead of going to Civil Court, moved the District Consumer Disputes Redressal Forum to claim their damages by choice - Same was rightly dismissed holding firstly that the Insurance Company was not a consumer and secondly, that the transaction was of a commercial nature - There was no impediment for appellants to move the Civil Court by filing the suit on the date of cause of action - Having chosen the wrong forum to make claim, appellants could not take advantage of their own wrong - Impugned judgment passed by Lower Appellate Court was upheld.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03 - 02 2014
Coram
The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA
Second Appeal No. 1151 of 2006
The plaintiffs who had filed the suit for recovery of money, have filed this Second Appeal challenging the judgment and decree dated 17.10.2005 passed by the First Appellate Court in A.S. No. 110 of 2005 wherein and by which the judgment and decree dated 22.06.2004 made in O.S. No. 4799 of 2000 on the file of the XI Assistant Judge, City Civil Court, Chennai, was reversed allowing the First Appeal at the instance of the first defendant.
2. The first plaintiff is the owner of the cargo and the second plaintiff is the Insurance Company with whom the cargo was insured. The first defendant is the Air Carrier and the second defendant is the consolidator of the first defendant. 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.
3. 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. It is further stated that there was no cause of action for the suit. The second defendant consolidator also had filed a written statement taking the same defence that the suit is barred by limitation.
4. 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. Aggrieved by the same, this Second Appeal is being preferred by the plaintiffs.
5. At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration:-
(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.
6. Heard Mr. G. Guruswaminathan, learned counsel appearing for the appellants and Mr. O.R. Santhanakrishnan, learned counsel for the first respondent as well as Mr. Ravikumar Paul, learned for counsel for the second respondent and perused the records.
7. 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.
8. Learned counsel appearing for the appellants argued that admittedly, the cargo arrived Chennai on 17.10.1996 and 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. Therefore, as per the above said Rule of the Act, the suit ought to have been filed on or before 16.10.1998. Even before the District Consumer Disputes Redressal Forum, Chennai South, the Original Petition was filed on 18.9.1998, just before the expiry of limitation. Learned counsel for the appellants further submitted that if the period from 18.9.1998 to 24.5.2000 is excluded, the suit which was filed on 16.6.2000 is well within time as the last date was 21.6.2000. Therefore, according to the learned counsel, the time taken for contesting the O.P. before the District Consumer Disputes Redressal Forum should be excluded and on this calculation only, the trial Court had decreed the suit.
9. Learned counsel for the respondents argued that only International Law will prevail over the General Laws like Limitation Act. The Carriage by Air Act 1972, being special enactment, the law of limitation is not applicable and, therefore, the exclusion of time taken by the plaintiffs before the District Consumer Disputes Redressal Forum is not possible as prescribed under Section 29(2) of the Limitation Act. Therefore, the only point to be seen is whether the suit filed by the plaintiffs is within limitation as prescribed under the Carriage by Air Act.
10. The Carriage by Air Act itself is to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on 12.10.1929 and to the said Convention as amended by the Hague Protocol on 28.9.1955 and to make provision in its original form and in the amended form subject to exceptions, adaptations and modifications to non-international carriage by air and for matters connected therewith.
11. Rule 30 (1) and (2) of the II schedule to the Carriage by Air Act, 1972 read as follows:-
"30. (1) The right to damage shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case."
12. Learned counsel appearing for the appellants argued that as per the above Rule, only if an action is not brought within two years, the right gets extinguished whereas it was contended by him that the O.P. before the District Consumer Disputes Redressal Forum was filed well within two years from the date of arrival of the cargo, ie., on 17.10.1996. However, only in view of the decision of the Hon'ble Supreme Court that Insurance Companies will not come under the definition of "Consumer", he had to revert to the Civil Court. It is further contended that Section 29(2) of the Limitation Act will apply to the Special Law and that if the Limitation Act is made applicable, the suit will be well within time. For better appreciation, Section 29 (1) and (2) the Limitation Act is reproduced below:-
"29. Savings.-- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
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13. On a reading of the above provision, it could be reasonably seen that the Carriage by Air Act, 1972, being an International Law, above section will not have applicability over the same as the International Law will prevail over the General Laws. Rule 29 of Schedule III of the Carriage by Air Act, 1972, reads as follows:-
"29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under these rules or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in these rules without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable."
14. Regarding the jurisdiction of the place, the action for damages must be brought at the option of the plaintiffs in the territory of one of the high contracting parties before the Court having jurisdiction where the carrier is ordinarily resident or in the principal place of business or an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. Therefore, only the question of procedure shall be governed by the law of the Court seized of the case. Therefore, the contention of the learned counsel for the appellants that the Limitation Act, being local law, will be made applicable to the case on hand, is untenable and cannot be accepted. The further contention of the appellants that the liberty given by the District Consumer Disputes Redressal Forum for filing civil suit does not automatically take away the time spent in the District Consumer Disputes Redressal Forum as the said Forum is not a Court and it is only Quasi-Judicial Tribunal brought into existence to render inexpensive and speedy remedies to the consumers.
15. Learned counsel appearing for the respondents in turn, placed reliance on the decision of this Court in 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.
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