LAKSHMI BANGLE STORESversusUNION OF INDIA AND ORS.

                   LAKSHMI BANGLE STORES                                 A
                                   v.
                  UNION OF INDIA AND ORS.

                        DECEMBER 6, 1990

         [KULDIP SINGH AND K. RAMASWAMY, JJ.]                            B

     Indian Railways Act: Sections 77-B-Suit for damages for loss of
goods-Limitation-Starting point of-Whether consignor entitled to
change value of consigned goods.

      The appellant had booked a Rail-wagon for consignment of hang- C
les from Ferozabad to Srikakulam on June 3, 1964. He declared the
value of the consigned goods as Rs.25,000 The wagon loaded with the
glass bangles met with an accident on June 22, 1964 and was damaged.
An open assessment delivery of the goods was made to the appellant on
September 4, 1964 at the destination. The appellant found that more
than half of the bangles were damaged.                                D

      The appellant claimed damages ofRs.32869.87 on the ground that
the actual value of the bangles was Rs.56,837 .04. The respondents con-
tested the claim inter alia on the ground that the appellant could not
claim damages by enhancing the value of goods. It was also contended
that the suit having been filed beyond the period of 3 years from the E
date of accident, when loss to the property occurred, the same was
barred by limitation under article 10 of the Limitation Act.

      The Trial Court held that counting the period of limitation from
September 4, 1964, when the extent of loss to the goods was known, the
suit was within limitation. The Court however dismissed the suit bold- F
ing that the respondent was estopped from contending that the value of
goods was more than the declared amllllnt of Rs.25,000.

      The High Court, in appeal, reversed the findings of the Trial
Court on the point of limitation as also on valuation. The High Court
came to the conclusion that the appellant was enlitled to claim the value G
of the consigned goods as Rs.56,837 .04 and the declaration regarding
value at the time of booking the consignment was of no consequence.
The High Court however dismissed the appeal on the ground that the
suit was barred by limitation.

      On behalf of the appellant it was contended before this Court that H

                                 457
    458           SUPREME COURT REPORTS             [1990] Supp. 3 S.C.R.

A   the counting-point for the limitation purposes bas to be September 4,
    1964. On the other hand, it was contended by the respondents that the
    appellant could not be permitted to go back from the valuation of the
    goods which he declared at the time of booking the consignment.

            Dismissing the appeal, this Court,
B
         HELD: (1) The High Court was not justified in relieving the rail-
    way administration of its burden to establish that the damage to the
    goods occurred beyond three years from the date of the snit. I460G]

         Union of India v. Amar Singh, [1960] 2 S.C.R. 75 and Jetmu/l
C   Bhojraj v.Darjeeling Himalyan Railway Company Limited, [1963] 2
    S.C.R. 832, referred to.

         (2) The knowledge of the accident may have given rise to an
  assumption that the goods were damaged in the accident but the burden
  of proving that the damage occurred 3 years beyond the date of suit has
D to be discharged by the railways. There is no material on the record to
  show that the respondents have done so. The High Court was not
  justified in relieving the railway administration of its bnrden. The find-
  ing of the High Court on this issue is, therefore, set aside. [4628-C]

        (3) The appellant should not be permitted to change the value of
E the consigned goods at his convenience and to his advantage. The bills
  produced by the appellant before the Trial Court to substantiate the
  value of the goods must be in existence at the time of booking the
  consignment. There is no explanation whatsoever as to why he declared
  Rs.25,000 as the value of goods at the time of booking against his claim
  of Rs.56,837.04 at the trial. There is no equity in the stand of the
F appellant. The rule of 'fairplay in action' demands that the appellant be
  pinned-down to the valuation of the consigned goods declared by him
  voluntarily. [463E-G]

            Chuni Lal v. Governor General, A.I.R. 1949 Mad 754, approved.

G           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 517 of
    1976.

         From the Judgment and Decree dated 24.7.1974 of the Andhra
    Pradesh High Court in Appeal No. 552 of 1970.

H           A. Subba Rao for the Appellant.
      LAKSHMI BANGLE STORES v. U.0.1. [KULDIP SINGH, J.l          459

     R.B. Datar, Rajendra Singhvi, B.K. Prasad and C.V.S. Rao for        A.
the Respondents.

     The Judgment of the Court was delivered by

       KULDIP SINGH, J. Messrs Lakshmi Bangle Stores instituted a
                                                                         B
suit for damages against the Eastern Railway and the South-Eastern
Railway through Union of India. The Trial Court dismissed the S1Jit.
On appeal a division bench of the High Court set aside the findings of
the Trial Court on merits but dismissed the appeal on the ground that
the suit was barred by limitation. This appeal via Special Leave Peti-
tion is against the Judgment of the High Court.
                                                                         c
      We may state the necessary facts. The appellant booked a Rail-
wagon for consignment of bangles from Ferozabad to Srikakulam on
June J, 1964 He declared the value of the consigned-goods as
Rs.25,000. The wagon loaded with the glass bangles met with an acci-
dent. at Ganguli Railway Station on June 22, 1964 and was damaged.
                                                                       0
Thereafter, the bangle-cases were transferred to another wagon by the
Railway Authorities. The consignmept reached Srikakulam on July 25,
1964 and an open assessment delivery of the goods was made to the
appellant on September 4, 1964. The appellant found that more than
half of the bangles were damaged. According to the appellant the
actual value of the bangles was Rs.56,837.04 and the value of the E
un-damaged stock delivered back to him was Rs.27,752.87. The appel-
lant thus claimed damages to the tune of Rs.32,869.87. The· respon-
dents contested the claim of the appellant. It was pleaded that the
appellant having declared the value of the entire consignment as
Rs.25,000 he could not claim damages by enhancing the value to
Rs.56.837 .04. It was also stated that in view of the provisions of F
Section 77-B of the Indian Railway Act the appellant was not entitled
to the damages. It was further pleaded that the suit having been filed
beyond the period of 3 years from the date of accident, when loss to
the property occurred, the same was barred by limitation under article
10 of the Limitation Act.

      The Trial Court in its judgment dated February 7, 1970 came to     0
the following conclusions:

      1. The accident which occurred on June 20, 1964 was duet;; the
      negligence and carelessness of the railway-servants and was not
      providential.
    460         SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

          2. The damaged bangles were delivered to the appellant-plain-
A
          tiff on September 4, 1964, when the extent of loss to the goods,
          was known. Counting the period of limitation from September 4,
          1964, the suit was within limitation.

          3. Section 77-B of the Indian Railways Act was not attracted to
B         the facts of the case.

          4. The appellant-plaintiff having declared the value of the goods
          at Rs.25,000 he was estopped from contending that the said value
          was more than that amount.


c from Intheview of the above findings, the appellant having received back
             ,Railway undamaged goods of the value of Rs.27,754.87,
    which value was more than the declared value,his suit was dismissed by
    the Trial Court.

        The High Court approved the findings of the Trial Court to the
D effect that the accident was due to the negligence of the railway-
  servants and that section 77-B of the Indian Railways Act was not
  applicable. The High Court, however, reve_rsed the findings of the Tria'
  Court on the point of limitation and also on valuation. The High Court
  came to the conclusion that the appellant was entitled to claim the
  value of the consigned goods as Rs.56,837.04 and the declaration
E regarding value at the time of booking the consignment was of no
  consequence. The High Court finally dismissed the appeal on the
  ground that the suit was barred by limitation.

          Mr. A. Subba Rao, learned counsel appearing for the appellant
    has contended that the High Court has erred in counting the period of
F   limitation from the date of accident. According to him the consignor
    would not know for certain. till the open delivery of the goods was
    made to him, as to whether the goods were damaged in the accident
    and to what extent. He, therefore, contends that the counting-point
    for the limitation purpose has to be September 4, 1964 when the
    damaged goods were delivered to the appellant. We do not wish to
G   examine the argument because we are of the view that the High Court
    was not justified in relieving the railway administration of its burden to
    establish that the damage to the goods occurred beyond three years
    from the date of the suit. This court in Union of India v. Amar Singh,
    [1960] 2 S.C.R. 75 held as under:

H               "The question now is, when does the period of limitation


                                                              •
        LAKSHMI BANGLE STORES v. U.0.1. [KULDIP SINGH, J.I             461

            under article 30 start to run against the claimant? The third
            column against article 30 mentions that the said claim            A
            should be made within one year fr()m the date when the loss
            or injury occurs. The burden is upon the defendant who
            seeks to non-suit the plaintiff on the ground of limitation to
            establish that the loss occurred beyond one year from the
            date of the suit. The proposition is self-evident and no          B
            citation is called for." (Article 30 under the old Act is
            Article 10 under the new Act and the period of limitation is
            3 years)".

  .     Again in Jetmu/l Bhojraj v. Darjeeling Hima/yan Railway Com-
  pany Limited, [1963] 2 S.C.R. 832 this court reiterated the"legal pu>i-
. tion as under:                                                -             c
            "According to colum'1 3 the starting point would be the
            date of the loss or injury to the goods. Now when goods are
            consigned by a consignor he would not be in a position to
            know the precise date on which the loss or injury has occur-      D
            red. In Union of India v. Amar Singh, [1960] 2 S.C.R. 75
            this court has held that the burden would be on the railway
            administration who want to non-suit the plaintiff on the
            ground of limitation to establish that the loss or injury
            occurred more than the year before the institution of the
            suit."'                                                           E

     No evidence whatsoever was produced by the respondent railway
administration to show that the damage to the goods occurred more
than 3 years before the suit was instituted. There is no finding in this
respect by any of the courts below. The High Court decided the issue
against the appellant in the following words:                            F

            "In the present case, the plaintiff deposed that after taking
            open delivery he made enquiries and came to know that the
            damage was due to the collision and to the transhipment.
            Knowing when the collision and transhipment had taken
            place the plaintiff was himself to blame if he did not file the   G
            suit within the prescribed period of limitation."

            "In the case before us, the very case of the plaintiff was
            that the goods were damaged on the date of collision and
            the cjate of transhipment. The railway administration was
            thus relieved of the burden of establishing •vhen the             H
    462         SUPREME COURT REPORTS              [1990] Supp. 3 S.C.R.

               damage was caused. The suii was filed beyond the period
A              prescribed by Article 10 of the limitation Act read with
               S. 15 of the Limitation Act."

        We do not agree with the High Court. The date of accident was
  mentioned in the plaint to narrate a fact. It was also averred that the
B plaintiff came to know about the damage on September 4, 1964 when
  he received open delivery of the goods. The Knowledge of ihe acci-
  dent may have given rise to an assumption that the goods were
  damaged in the accident but the burden of proving that the damage
  occurred 3 years beyond the date of suit has to be discharged by the
  railways. There is no material on the record to show that the respon-
  dents have done so. The High Court was not justified in relieving the
C railway administration of its burden. We, therefore, set aside the find-
  ings of the High Court on this issue.

         Since we have decided the limitation-issue against the Railways
   it has become necessary to deal with the argument of Mr. R.B. Datar,
I) learned senior advocate appearing for the respondents, on the other
   issue. He has contended that the High Court wrongly set aside the
   finding of the Trial Court on the issue of valuation of the goods.
   According to him, the appellant cannot be permitted to go back from
   the valuation of the goods which he declared at the time of booking the
   consignment. The appellant having declared the value of the con-
E signed-goods to be Rs.25,000, he cannot now claim Rs.56,837.04 for
   the same.

         The question for our consideration is whether the Railway
    administration is liable to pay the appellant compensation in excess of
    the valuation which was declared by him at the time of booking the
F   goods, though he was under no legal obligation to make such a
    declaration.

         Mr. Datar seeks support from Chuni Lal v. Governor General,
    A.LR. 1949 Madras 754 Mack, J. who delivered the judgment
    observed as under:
G
               "An interesting point for determination is whether if
               plaintiff though under no legal obligation to value the con-
               tents of the box, does so of his own accord, the railway
               company is legally liable to pay him compensation in excess
               of his own valuation ............... I am of the opinion
H              that where a consignor takes it upon himself specifically to
         LAKSHMI BANGLE STORES v. U.0.1. (KUI.DIP SINGH, J.I          463

            value a box and its contents consigned by rail, it is not open
                                                                             A
            to him to claim from the railway company anything in
                                          0
            excess of that valuation and to content that the box con-
            tained more valuable things, an averment, which the rail-
            way company may have great difficulty in refuting."
     Chuni Lal's case (supra) was noticed by the High Court but the
                                                                             B
High Court disagreed with the view taken by Mack, J. in the following
words: Im 20.
            "The learned Judge did not state the principle on which he
            has basing his conclusion. If it was his view that the con-
            signor was estopped from claiming more than the value
            mentioned in the declaration we do not see how there can
            be any estoppal unless the railway administration had done
                                                                          c
            something in furtherance of the representation contained
            in the declaration. The learned Judge referred to the diffi-
            culty of the railway administration in refuting a claim about
            the actual value of the goods. That is only a matter of
            evidence and proof and we would think that the consignor D
            would be under a greater difficulty in proving that the
            actual value of the goods was higher than that which he
            himself had voluntarily declared. We, therefore, hold that
            the valuation mentioned in the forwarding note does not
            bind the plaintiff."
                                                                          E
      We have given our thoughtful consideration to the point in issue.
We are of the view that the appellant should not be permitted to
change the value of the consigned goods at his convenience and to his
advantage. The bills produced by the appellant before the Trial Court
to substantiate the value of the goods must be in existence at the time
of booking the consignment There is no explanation what>oever as to
                                                                          F
why he declared Rs.25,000 as the value of the goods at the time of
booking against his claim of Rs.56,837.04 at the trial. We see no equity
in the stand of the appellant. The rule of 'fairplay in action' demands
that the appellant be pinned-down to the valuation of the consigned
goods declared by him voluntarily. We approve the view expressed by
Mack. J. in Chuni Lal's case (supra). We set aside the findings of the
                                                                          G
High Court in this respect and restore that of the Trial Court.
       In spite of zig-zag findings on the issues, the net result for the
appellant remains the same. The appeal is dismissed with no order as to
costs.

R.S.S.                                                Appeal dismissed.