Madras High Court
Hassaji And Anr. vs The East India Railway Company on 3 August, 1882
Equivalent citations: (1882)ILR 5MAD388
JUDGMENT
Innes, Officiating C.J.
1. This appeal arises in a suit in which the plaintiffs seek compensation for goods belonging to them carried by the East India Railway for delivery to them and not delivered. The consignment consisted of 220 bags of grain, out of which plaintiffs received all but 93. Of these 28 were lost and 65 bags, after arrival, were damaged (as is found upon the evidence by the Courts below) by a complication of causes against which it was impossible for the defendants to provide, and had to be destroyed under orders of the Magistrate. As to the 65 bags, therefore, the defendants cannot be held answerable.
2. In regard to the 28 bags the Company are undoubtedly liable, unless the claim is, as contended, barred. The loss occurred on the 20th September 1877, at latest, as it was discovered on that date, and if the question of the period of limitation be governed by Article 30 of the Second Schedule of Act XV of 1877, this suit is undoubtedly barred as it was not instituted till the 2nd October 1879, and exceeded the period allowed (two years) by some days. That Article applies to cases where goods are lost or injured.
3. It is contended, however, that Article 115 is the Article applicable. That Article applies to cases where compensation is sought for breach of contract, and the time three years runs from the breach of the contract. This contention implies that there was a privity of contract between the plaintiffs and the defendants, otherwise, it is asked, how could the plaintiffs have a right to sue? The contract was entered into between the consignor and the defendants. But the goods were not sent on sample or for approval, and the property passed at once to the consignees on delivery to the defendants; and, therefore, the consignor in contracting with defendants acted as agent of the consignees, the plaintiffs, who can maintain an action for breach of contract for loss or injury to their goods, Dawes v. Peck 8. T.R. 330. We think Article 115 of the Limitation Act properly applies. This allows three years from the breach, a period which had not elapsed when the suit was brought. We, therefore, consider that plaintiffs are not barred as to their claim to the value of the 28 bags. The appeal must be allowed to this extent with proportionate costs throughout.