Madras Motor And General Insurance Co. Ltd v. General Assurance Co. Ltd. Calcutta — 1971 DIGILAW 227 (KER)

JUDGMENT P. Unnikrishna Kurup, J. 1. This second appeal raises a question of limitation and has been referred to a Division Bench by a learned Single Judge in view of the conflicting decisions of the courts on the subject. The first plaintiff is the appellant, which is the Madras Motor and General Insurance Co., Ltd., Madras 14. The appellant had insured the 2nd plaintiff's bus K.L.K. 3579 against accidents. On 15th October, 1960 a bus belonging to the 1st defendant bearing registration No. K.L.A. 298 collided with the bus belonging to the 2nd plaintiff, which resulted in the death of the 2nd plaintiff's bus driver and caused considerable damage to his bus. Some of the passengers in the 2nd plaintiff's bus were also injured. The 2nd plaintiff got the damaged bus repaired by the T.V.S. Company, Madurai, at an expense of Rs. 6,562.51. The first defendant's bus had been insured with the 2nd defendant; another Motor Insurance Company, and when the 2nd plaintiff and his insurer, the first plaintiff, demanded damages against the first defendant, the latter replied that as the bus had been insured by the 2nd defendant, the damages should be recovered from the 2nd defendant. Thereupon, the plaintiffs filed this suit impleading the first defendant and the insurer of her bus as the 2nd defendant. 2. The Trial Court held that the evidence adduced was sufficient to show that the 2nd plaintiff's bus was going at a normal speed and keeping to the left of the road, while that of the 1st defendant was going at an abnormal speed and had struck the 2nd plaintiff's bus, as a result of which the front portion of the 2nd plaintiff's bus had been completely damaged, the driver of the bus killed and many of the passengers injured. Although no express findings has been recorded it is clear that the Trial Court was of the view that the 1st defendant's bus driver was at fault and that there was no contributory negligence on the part of the 2nd plaintiff's bus driver. It was, however, held by the Trial Court that Art.36 of the Indian Limitation Act, 1908 applied to the facts of the case and as the suit has been filed two years after the accident it was barred by limitation. In this view, the suit was dismissed by the Trial Court. 3. It was, however, held by the Trial Court that Art.36 of the Indian Limitation Act, 1908 applied to the facts of the case and as the suit has been filed two years after the accident it was barred by limitation. In this view, the suit was dismissed by the Trial Court. 3. In appeal, the learned District Judge of Kottayam upheld this view of the Trial Court and dismissed the appeal. 4. The only point that arises for consideration is whether Art.49 of the Limitation Act, 1908 is applicable as contended by learned counsel for the appellant in which case the suit is within time as it has been filed within three years of the accident. 5. Art.36, 48 and 49 of the Limitation Act are relevant and are extracted below for easy reference: -- Description of suit. 36. For compensation for any malfeasance, misfeasance or nonfeasance independent of contract, and not herein specially provided for Period of Limitation. Two years. Time from which period begins to run. When the malfeasance, misfeasance or nonfeasance takes place. Description of suit. 48. For specific movable property lost, or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same. Period of Limitation. Three years. Time from which period begins to run. When the person having the right to the possession of the property first learns in whose possession it is. Description of suit. 49. For other specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Period of Limitation. Three years. Time from which period begins to run. When the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful. 6. While Art.48 and 49 directly provide for suits for compensation in respect of specific movable property, Art.36 of the limitation act is a general provision dealing with claims for compensation for malfeasance, misfeasance or non feasance independent of contract and not specifically provided for in the Act. The wordings itself denotes that it is residuary provision and that it would not only apply to cases specifically provided for in the Act. Therefore, if Art.48 or 49 is to apply to the facts of a particular case it would follow that Art.36 has no application. 7. The wordings itself denotes that it is residuary provision and that it would not only apply to cases specifically provided for in the Act. Therefore, if Art.48 or 49 is to apply to the facts of a particular case it would follow that Art.36 has no application. 7. The learned counsel for the appellant contended that compensation for injuring a specific movable property is directly provided for in Art.49, that in this case damages claimed is in relation to the injury caused to the 2nd plaintiff's bus by the wrongful act of the first defendant's bus driver and that the case consequently comes within the scope of Art.49 of the Act. The respondents' counsel argued that the reference to specific movables in Art.48 and 49 was of movables not in the possession of the owner and it has been so held in Essoo Bhayaji v. S. S. Savithri (ILR XI Bom. 133) and Corporation of Madras v. B. D. Kothandapani ( AIR 1958 Mad. 620 ). The contention is that Art.48 and 49 applied only when the movable property is in the possession of a person other than the claimant for damages and that those Articles would not apply if the movables are injured while in the possession of the owner himself. There is a divergence of judicial opinion on this point between various High Courts. 8. In Essoo Bhayaji v. S. S. Savithri (ILR XI Bom. 133) the suit was for recovering damages from the owner of a ship for injuries caused to a country craft (pattimar) by reason of the collision of the ship and the country craft. Farran J. in that case considered the question whether Art.36 or Art.49 applied and expressed the view that the meaning of specific movable property as used in Art.49 excludes the property in one's own possession and that it was only consistent with the view that the movable property was not in the possession of the person claiming compensation for injury. According to that decision, "injury to property will thus be limited to injury to the property of another in the possession of the person in whose custody it is injured". With great respect, we are unable to see how such a construction can be given to the expression specific movable property. According to that decision, "injury to property will thus be limited to injury to the property of another in the possession of the person in whose custody it is injured". With great respect, we are unable to see how such a construction can be given to the expression specific movable property. While Art.48 refers to specific movable property lost, or acquired by theft, or dishonest misappropriation or conversion, Art.49 deals with other specific movable property when the property is wrongfully taken of injured or when the detainer's possession becomes unlawful. We find no reason to think that the specific movable property referred to in Art.49 takes in only movable property in the possession of a person other than the owner and there appears to be no warrant for restricting the scope of the words used in Art.49. 9. The same question came up for consideration in Sithambaram Chetty v. U. Kha Gye [1962 (17) Indian Cases 906] where a Division Bench after considering the decision reported in ILR XI Bombay 133 expressed its inability to agree with that view. The court said: -- "I am unable to agree with the decision of Farran J. in the Bombay case and I agree with the reasoning of the majority of the Calcutta Judges. Art.39 only relates to such cases as are not specially provided for in the Schedule. Art.49 seems to me to specially provide for a case such as the present". .............. "I am unable to import into the Article the meaning which Farran, J., does, namely, that the specific movable property which is injured must be in the possession of some third party for it to apply. ............ Art.49, in my opinion, should be given its natural meaning. It provides for compensation for injury to specific movable property other than that referred to in Art.48 and, therefore, in my opinion, to a case like the present". With respect, we agree with the above view as that appears to us to be more in consonance with the natural meaning of the Article. 10. In Corporation of Madras v. B. D. Kothandapani ( AIR 1958 Mad. 620 ) the Madras High Court followed the decision in XI Bombay 133. On a careful perusal of that case, we are unable to find any reason given for the view taken, except that Farran, J., had taken such a view in ILR XI Bombay 133. 10. In Corporation of Madras v. B. D. Kothandapani ( AIR 1958 Mad. 620 ) the Madras High Court followed the decision in XI Bombay 133. On a careful perusal of that case, we are unable to find any reason given for the view taken, except that Farran, J., had taken such a view in ILR XI Bombay 133. 11. In Ratanlal v. Baboolal ( AIR 1960 M.P. 200 ), the Madhya Pradesh High Court has incidentally remarked that it was unable to see how on he wording of Art.49 the question of possession could be imported, but in that case the question was immaterial as the movable property was in the possession of the wrong doer and not the owner. 12. The learned counsel for the appellant brought to our notice the decision of the Assam High Court reported in Union of India v. Muralidhar (AIR 1952 Assam 141). We are unable to see how that case advances the contention of the appellant. The facts are totally different there and it does not appear to be applicable to the present case. 13. The next case relied on by the learned counsel for the respondents is the decision reported in Raghunath Das v. Gokel Chand and another ( AIR 1958 SC 827 ). There, the question for consideration was whether Art.49 or Art.120 applied and no question arose as to the applicability of Art.36. The court was concerned with respect to a claim for recovery of G. P. Notes and the question that arose for consideration was whether the plaintiff was entitled to certain movable property. The court held that until actual partition by consent of the parties or court the person who was in custody of the notes could not be said to have taken the notes wrongfully and that the possession of them could not be said to be unlawful. It was alleged that the suit was really for partition or division of the movable properties held jointly or as tenants in common by the parties and there being no specific Article applicable to such a suit it must be governed by Art.120. That decision does not appear to be applicable to the facts of this case. Here, the claim for compensation is directly related to the injury caused to the 2nd plaintiff's bus by the first defendant's bus. That decision does not appear to be applicable to the facts of this case. Here, the claim for compensation is directly related to the injury caused to the 2nd plaintiff's bus by the first defendant's bus. It, therefore clearly, comes within the scope of Art.49 and the period of limitation is therefore 3 years, in which case the suit is well within time. 14. Lastly it was contended by the learned counsel for the 1st respondent that under Clause (7) of the Insurance Agreement, the 1st respondent is liable only proportionately along with the appellant. This contention as such has not been raised either in the written statement of the 2nd defendant or at the time of the trial before the first court. We do not think that it would be proper to allow such a plea to be taken in second appeal for the first time and so we disallow this contention. 15. In the result, the decisions of the courts are set aside and the appeal is allowed. There will be a decree in favour of the 1st plaintiff for Rs. 6,562.51 as prayed for, with interest at 6% per annum from the date of suit. The appellant will be entitled to its cost in the Trial Court and the lower appellate court. The parties will suffer their costs in this court.