NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

FIRST APPEAL  No. 480   OF 1995

(From the order dated 27.6.95 in Case NO. C-223/93

 of the State Commission, New Delhi)

 

Indian Airlines        .                                                         ...Appellant

      Vs

D.P. Hazra                                                                      ...Respondent

 

BEFORE:-

 

          HON’BLE MR. JUSTICE D.P. WADHWA,

                                                PRESIDENT

          HON’BLE MR. JUSTICE J.K. MEHRA, MEMBER

          MRS. RAJYALAKSHMI RAO, MEMBER

          MR. B.K. TAIMNI, MEMBER

 

Carriage by air  -  limitation - sub-rule (2) of Rule 30 of the Second  Schedule  to the Act - method of calculating  period of limitation - held - period of limitation fixed under sub-rule (2) of Rule 30 be calculated in terms of the Limitation Act, 1963 and also held that action  brought after . right to claim damages extinguished by virtue of sub rule  (2) of Rule 30, there cannot be any extension of limitation.

View taken in Bharat S. Modi Vs. British Airways that there cannot be  any extension of period of limitation prescribed under Section 24A of the Consumer Protection, 1986 affirmed.

 

For the Appellant    :         Mr. S. Ransanathan, Advocate

          For the Respondent:         N E M O      

 

18.02.02

 

O R D E R

 

PER JUSTICE  D.P. WADHA,  PRESIDENT.

This     Appeal     by    the    Indian Airlines, Opposite Party in a complaint    by    the    Respondent,     is    directed     against the   order   of     the      Delhi   State   Commission    dated    27.6.95   rejecting        its

 

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contention that the complaint was barred by limitation under the provisions of the Carriage by Air Act, 1972.  When this Appeal was filed, complaint was still pending with the State Commission.  It was yet to be considered on merits.  Normally, we do not interfere with the interim order but this appeal was filed in 1995 and we are told that the complaint itself stood dismissed for default.  This being the present position, this Petition would not have survived for consideration.  However, it is submitted before us that there is likelihood of an application being filed before the State Commission for setting aside the order dismissing the complaint in default and restoring the same.  In these circumstances, we proceed to consider the question which is on law and may effect many cases.

 An aircraft of the appellant, Indian Airlines, met with an accident on 14.2.90 resulting in the death of many passengers and injuries to others.   The complaint is by one of the survivors whose complaint was for compensation for having suffered injuries in the said accident.  He filed a complaint on 22.3.93.  It was beyond the period  two years from the date of accident occurred.  As noted above, the objection of Indian Airlines that the complaint was barred by limitation was rejected.

The Carriage by Air Act, 1972, for the purpose of claiming damages, applies to travel inside the country in view of the notifications dated 5.7.98 and 26.3.92 issued by the Central Government under section 8 of that Act.  Since both the schedules would apply to air travel in the country and are not limited to international  carriage of persons, luggage and goods, we may refer to Rule 30 of the Second Schedule which reads as under:-

 

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“30.    (I)      The right of damages 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.

 

Right to claim damages stands extinguished after expiry of two years if complaint is not filed from the date of accident.  The question for consideration is; if  period of limitation  to be calculated under the Limitation Act, 1963.  It was submission of Mr. S. Ransanathan, learned Counsel for the Appellant that on no account this period of two years can be extended as right to damages itself gets extinguished after the expiry of period of two years.  But the case of  the complainant was that there was acknowledgement from the Indian Airlines which would extend the period of limitation.  Reference has been made in this connection to letter datedsw 23.3.91 of the Solicitor of the Indian Airlines where they have stated as under:-

 

                                                          23rd March, 1991

Mr. Debi Prasad Hazra,

121, Manicktala Main Road,

Calcutta – 700 054

 

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Dear Sir,

 

                   Re.: Accident to Indian Airlines ‘ VT-EPN at 

                            Bangalore on        14th February, 1990.

                           Mr. D.P. Hazra – Injured Passenger

 

 

          We act for Indian Airlines in the matter of the settlement of claims for compensation arising out of the above accident.  Indian Airlines has accordingly forwarded to us your Claim Form dated 15th March, 1991 with instructions to process your claim.

          We have seen the copies of the Reports/prescriptions which Indian Airlines has forwarded to us.  However, these are not entirely legible/clear to us.  We note that Dr. M.K. Sarkar in his Report of 14th May, 1990 has reported that there has been no external injury.  We shall thank you first please to let us know the exact nature of the injuries sustained by you, indicating the Report making reference to it.

          We shall also thank you to let us know the number of days you were entirely precluded, as a result of the accident, from attending to your usual business or duties or occupation.

          We shall also thank you to please forward to us vouchers/other documentary evidence of actual medical expenses incurred by you and also let us know whether any of

 

 

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these have been reimbursed to you by way of insurance or otherwise.

          On receiving you response, we will be in a position to consider you claim.

          Thanking you,

                                                          Yours faithfully,

Mulla & Mulla & Cragi…..

 

 

(Partner)

 

          This letter cannot be termed as acknowledgement within the meaning of Section 18 of the Limitation Act, 1963.  Section 18 no doubt prescribes that if there is an acknowledgement in writing before the expiry of prescribed period of limitation, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. 

          This letter on behalf of the Indian Airlines is not an acknowledgement of any liability on the part of the Indian Airlines.  That being so, we need  not go further into the question if sub-rule 2 of Rule 30 would extend the period of limitation in the case  of any acknowledgement which is valid.  Never-the-less, we find that Part III of the Limitation Act, 1963   prescribes   as   to   how   the period of limitation is to be computed. 

Words used in Sub Rule 2 of Rule 30 that is “method of calculating the period of limitation” would mean the same as what is “computation of period of limitation.  We  are thus of the view that for the purpose of Sub-Rule 2 of Rule 30 , calculation of period of limitation of two years will have to   be   calculated   in terms of Limitation Act, 1963.   We would, however,

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agree with the proposition that if action is brought after the right to claim damages is extinguished by virtue of Sub-Rule 2 of Rule 30, there cannot be any extension of limitation.  In fact this is also what Section     18        of the Limitation Act states. In Bharat S. Modi Vs. British Airways, we have taken a view that in view of the Rule 30 of the Carriage by Air Act, 1972, there cannot be any extension of period of limitation prescribed u/s 24 (A) of the Consumer Protection Act, 1986.  In that case we were not considering the effect of sub rule (2) of Rule 30 and we also held that provision for consodnation of delay as contained in Sub Section (2) of Section 24 A would not apply.

          We have been referred to some judgements of the foreign courts in support of contention that action would not have been brought after two years as the right itself  would extinguish but those judgements are on different aspects and if we accept the contention of the Indian Airlines then Sub Rule (2) of Rule 30 will become otoise. This Appeal is, therefore, allowed and the impugned order of the State Commission is set aside.  Complaint is dismissed as barred by limitation.

 

........................................J.

                                                                                (D.P. WADHWA)

                                                                                PRESIDENT

 

.........................................J.

                                                                                (J.K. MEHRA)

                                                                                 MEMBER

........................................

                                                                        (RAJYALAKSHMI RAO)

                                                                                    MEMBER

 

........................................

                                                                                  (B.K. TAIMNI)

                                                                                    MEMBER