- (1.) Leave granted.
(2.) We have heard the counsel on both sides. The admitted facts are that the appellant had got insured his truck bearing registration No. HPA 6288 with the respondent No. 1 on March 28, 1983. During the course of employment of carriage of goods, the truck handed over to the driver on October 7, 1983 was not returned to the appellant. Thereby he lost the truck by an Act to misfeasance of the driver. The appellant in the interregnum had the insurance renewed on April 19, 1984, operative upto April 18, 1985. On July 9, 1984, the appellant demanded payment of insured amount due to loss of the truck which liability was disclaimed by the respondents through their letter dated December 31,1984. After exchange of legal notice and reiteration of denial thereof, case No. 34 of 1986 was instituted in the Court of the Chief Judicial Magistrate, Solan, District Solan, Himachal Pradesh, seeking a declaration that the appellant is entitled to the total loss of the truck from the Insurance Company. The Trial Court by its judgment and decree dated July 23, 1988 dismissed the suit holding that the suit for mere declaration without consequential relief for payment of compensation for the loss of truck or specified amount of compensation from the respondents was not maintainable. On appeal, the District Judge in case No. 138-S/13 of 1988 by judgment and decree dated June 16, 1990 confirmed the same which was further affirmed by the High Court in Second Appeal No. 432/90 by judgment dated November 27, 1990.
(3.) Mr. R. K. Khanna, learned counsel after thorough preparation of the case and with all persuasion contended that by operation of Section 28 of the Contract Act, limitation of one year prescribed in Clause 8 of the contract is void The appellant may sue within three years from the date of discovery of the loss of the vehicle. The courts below, therefore, were not justified in dismissing the suit. He contended that since the appellant claimed declaration of the entitlement, an application under Order 6, Rule 17 C.P.C. was filed in the appellate Court seeking consequential relief and that the District Judge and the High Court were not, therefore, right in rejecting the claim holding that the suit is barred by limitation and when the suit was initially instituted within limitation. Consequently, the relief, though during the course of the proceeding debarred by limitation, being incidental to the grant of the declaration, the appellant cannot be denied of the consequential relief. The District Judge and the High Court were not right in refusing to permit amendment of the plaint.;