- (1.) THE suit in O.S.No.1704 of 1989 was initially filed by the plaintiff Development Services (India) Private Limited as against (1) M/s Spencer and Company Limited and (2) Oriental Insurance Company Limited. Subsequently, the said Oriental Insurance Company Limited, as per the order of the trial Court was transposed as Plaintiff No.
(2.) THEREAFTER, M/s K.L.M. Royal Dutch Air Lines was impleaded as one of the defendants. While so, the said M/s K.L.M. Royal Dutch Air Lines initiated third party proceedings under Order VIII A CPC as against Air India. 2. The appeal is focused as against the Cross judgment and decree dated 13.04.1994 passed by the learned II Additional City Civil Judge, Madras, in O.S.No.1704 of 1989. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. The quintessence of the case of the plaintiffs as stood exposited from the amended plaint could be portrayed thus:The first plaintiff entrusted goods worth Rs.34,061/- to wit laces with M/s K.L.M. Royal Dutch Air Lines, D2 for being transported to Belgium from Madras. M/s Spencer and Company Limited shown as D1 in the Judgment is the agent of M/s K.L.M. Royal Dutch Air Lines, D2. M/s K.L.M. Royal Dutch Air Lines, D2 entrusted the goods to D3, Air India for being transported. But, Air India would come forward with the plea that the goods got lost in the transit. Hence, the first plaintiff got insurance coverage amount from the second plaintiff, who stepped into the shoes of the first plaintiff, by virtue of the Power of Attorney executed by the first plaintiff in favour of the second plaintiff. As such the suit was prosecuted claiming damages from the defendants. Per contra, M/s Spencer and Company Limited, D1 filed the written statement, the gist and kernel of it would run thus:-The suit is barred by limitation. D1 is only the authorized sales agent of M/s K.L.M. Royal Dutch Air Lines, D2. The first plaintiff booked a consignment of laces to Belgium through M/s Vinsens Clearing Agent of M/s K.L.M. Royal Dutch Air Lines. The consignment was carried by Air India D.3 from Madras to Singapore enroute Belgium. However the consignment got lost when it was in the custody of D3 Air India, who issued the certificate dated 30.10.1989 that the consignment booked got lost in the transit. The suit as against D1 is not tenable as he happened to be only an agent of the disclosed Principal viz., D.2, M/s K.L.M. Royal Dutch Air Lines.
(3.) THE second defendant M/s K.L.M. Royal Dutch Air Lines, filed the written statement, the pith and marrow of it would run thus:-THE suit is barred by limitation. THE goods entrusted to D2 through Agent was inturn entrusted to Air India, D.3 for being transported to Singapore. But, when the goods were in the custody of Air India, D.3, it got lost. To that effect, D.3, also issued a certificate dated 30.10.1989. D.2 came to know about the loss of consignment only on 19.09.1998, upon receipt of the letter addressed to D2 by the first plaintiff. Second Plaintiff also paid compensation relating to loss of goods and as such no cause of action survives. Accordingly, D.2 M/s K.L.M. Royal Dutch Air Lines prayed for dismissal of the suit. Third defendant, Air India filed the written statement, the warp and woof of it would run thus:-The suit is barred by limitation. Rule 30 of Schedule II of the Carriage by Air Act, 1972 (herein after referred to as the Act) would contemplate two years period of limitation, for claiming damages. Air India, D.3 was impleaded as 3rd defendant long after the expiry of two years from the arisal of the cause of action as contemplated under the said provision and accordingly D.3, prayed for dismissal of the suit.;