TaxTMI 
TaxTMI 
2018 (2) TMI 1450
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....r AWP No.125 80291886 dated 4th January, 2010, from Mumbai to Canada. Due to bad weather conditions at London Airport, the flight could not depart on 6th January, 2010 to Canada and hence the Cargo which was containing perishable items was damaged and destroyed. Respondent, therefore, lodged a claim with the petitioner, on 13th January, 2010 seeking amount of Rs. 1,70,221.56. 6] On 30th June 2010, respondent again sent Cargo containing similar perishable items like fruits and vegetables, through the petitioner Airways under AWB No.125 8464044 dated 2nd July 2010 from Mumbai to Canada. The said Cargo also could not be transported due to insufficient packaging and the consignee also refused to accept delivery, as a result the Cargo could not be sent and was accordingly destroyed. In respect of this Cargo, respondent lodged complaint with the petitioner on 20th July 2010 for a sum of Rs. 4,27,922/-. 7] In respect of both these claims, respondent filed suit against the petitioner on 15th September 2012 before the trial Court bearing S.C. Suit No.5164 of 2012, claiming damages alongwith interest. On 21st June, 2013, petitioner entered appearance in the suit and filed written state....
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....neral and prior law; whereas the Carriage by Air Act, 1972 is a special and later enactment. Hence as held by the Apex Court, in the case of Maya Mathew V. State of Kerala [AIR 2010 Supreme Court 1932] the rules of interpretation when a subject is governed by the two sets of enactments are well settled and they are as follows :- (i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law. The rule-making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule; (ii) When two provisions of law - one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail the same shall be given effect; (iii) If the repugnancy or inconsistency subsists in spite of an effort to ....
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....onsignors, consignees and other persons, shall subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage". 14] Rule 11(1) provides that Airway bill is prima facie evidence of the conclusion of the contract of the receipt of the cargo and all the conditions of the carriage. As per Rule 30 of Schedule II of the Act, the claims for damages against the Airline, in relation to the acts of omission or commission on the part of Airline with regard to the cargo entrusted to it are to be governed by the Rules set out in the said Rules. :- 15] Chapter III of the second Schedule in the said Act deals with "Liability of the Carrier". Rule 30(1) and (2) of the II Schedule to the Carriage by Air Act, 1972 reads as follows :- "30. (1) The right to 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 sha....
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....thin two years from the date of arrival at destination or from the date on which aircraft ought to have arrived or from the date on which the carriage stopped. 19] In the instant case, it is not disputed that the claim arose under the Airway Bill dated 4.1.2010 in respect of the Cargo sent from Mumbai to Canada which was to be delivered on 4.1.2010. The second claim was in respect of the Airway bill dated 2.7.2010 for carriage of goods from Mumbai to Canada which was to be delivered at Canada on 3.7.2010. Therefore, the suit in both Air Way bills was required to be filed prior to 3.7.2012. Admittedly, the suit is not filed on or before 3.7.2012, but it is filed on 6.9.2012 and therefore, it is not within the period of two years, as per Rule 30 (1) of Second Schedule of the Carriage by Air Act. This factual position is not disputed by learned counsel for respondent/plaintiff also. 20] However, according to learned counsel for respondent, the petitioner has, in the notice reply dated 28.10.2010, offered to settle the claim at 50% of the claim amount and therefore, there is acknowledgement of liability on the part of the petitioner. Hence as per Section 18 of the L:imitation Act....
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....ge by Air Act 1972 as well as Consumer Protection Act". 25] While answering these questions of law, the provisions of Rule 30 of Schedule II of the Carriage by Air Act 1972, were discussed in detail and then by placing reliance on its earlier judgment in M/s Air India Bombay Airport and another -vs- M/s Asia Tanning Co. and anr, [2003 (1)LW 622], it was categorically held that Rule 30 of the II Schedule being Special Rule of Limitation in respect of the carriage by air, it will prevail over the general law of limitation and therefore, exclusion from limitation, as sought under Section 14 of the Limitation Act, will not be available. 26] In this respect, learned counsel for petitioner has also placed reliance on the judgment of Madras High Court in case of Shipping Corporation of India, Bombay and anr -vs- Union of India, [air 2004 Madras 476], wherein suit was filed for damages for short landing of consignment under the Carriage of Goods by Sea Act 1924, according to which the suit was to be filed within a period of one year when the ship in which goods were contracted to be carried, had left the port at which delivery was to be made. However, suit was filed five years after ....
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....here being much scope for interpretation. 28] Learned counsel for the petitioner has also placed reliance on the judgment of Punjab and Haryana High Court in the case of Gulf Air Company -vs- Nahar Spinning Mills Ltd and others, [I.L.R. Punjab and Haryana 2000 (1), 238] wherein the issue of jurisdiction of the Court was considered and it was held in paragraph No.8 that:- "As the Carriage by Air Act, 1972 is a special Act, its provisions will prevail over the provisions of the Code of Civil Procedure which is a general Act. Since the Act has stipulated the courts which have the jurisdiction to entertain an action for damages by a consignor/consignee against a carrier, the stipulation contained in Sections 16 to 20 of the Code of Civil Procedure would be ousted". 29] To substantiate this proposition, reliance was placed on the object and reasons of the Act and the provisions of Section 4(1) of the Act. It was held that;- "In view of the above provisions of Act and the Rules framed thereunder and the provisions of Article 253 of the Constitution, the Courts are required to be careful not to attach to the words used in the said provisions anything more or less than their no....