B.N. Agrawal, J.
1. Heard learned Counsel appearing on behalf of the appellant. Nobody has appeared to contest the appeal in spite of service of notices upon the respondents.
2. This appeal has been filed against the order passed by Railway Claims Tribunal, Patna Bench, (hereinafter to as 'the Tribunal') in a claim application by which the appellant's claim has been rejected on the ground of limitation though on merit the Tribunal was of the view that it was a fit case for allowing the claim. According to the Tribunal, the suit was barred under Article 11 of the Limitation Act, 1963 (hereinafter referred to as '1963 Act') which corresponds to Article 31 of the Limitation Act, 1908 (hereinafter referred to as '1908 Act'). In the present case, the claim case was filed on 18.5.1983 for awarding compensation to the tune of Rs. 7,649.46 being price of goods in question on account of short deli very. The question is whether the limitation shall begin to run from 15.1.1980 on which day demand was made for open delivery or from 11.4.1980 when open delivery was granted. It is submitted that keeping in mind nature of the short delivery the present case should be treated to be a case for compensation for loss of goods within the meaning of Article 10 of 1963 Act which corresponds to Article 30 of 1908 Act and not for non-delivery thereof within the meaning of Article 11 of 1963 Act corresponding to which in 1908 Act is Article 31.
3. In support of his submission the learned Counsel for the appellant has placed reliance upon decision of a Division Bench of this Court in the case of Union of India v. Jogendra Chandra Naha, AIR 1971 Pat 24, wherein it has been laid down that in view of the nature of short delivery, in that case, the suit filed for compensation shall be treated to be a suit for realisation of compensation on account of loss of goods within the meaning of Article 30 of 1908 Act and not non-delivery of goods within the meaning of Article 31 of 1908 Act, therefore, it was held that in such a case Article 30 was applicable and the suit could have been filed within a period of three years from the date loss had occurred. It was also laid down that the limitation shall begin to run from the date the loss is detected only when open delivery is made.
4. In my view, the case of Union of India v. Jogendra Chandra Naha AIR 1971 Pat 24, ipso facto does not apply to the case in hand but the appellant can take help from the principle laid down therein. In that case, a suit was filed which was covered by Article 30 of 1908 Act but the present case cannot be brought within the sweep of Article 30 as it was a claim application filed before a Railway Claims Tribunal which cannot be said to be a suit. The present case in my view shall be governed by the residuary Article, i.e., Article 137 of 1963 Act, as no period of limitation for such an application has been provided in any other Article and such an application has to be filed within a period of three years from the date when right to apply accrues.
5. This takes me to consider as to when right to apply accrues in such a case to file claim application before the Tribunal. A person can apply for compensation only when the quantum of loss is ascertained and the ascertainment of loss is made when open delivery is granted. An action for compensation before its ascertainment will be premature as a party will not be in a position to state the quantum of compensation unless open delivery is made. Therefore, on the principle laid down in the case of Union of India v. Jogendra Chandra Naha : AIR1971Pat24 , I hold that right to apply for compensation accrued to the claimant within the meaning of Article 137 of 1963 Act on the date when open delivery was granted.
6. In the present case, open delivery having been granted on 11.4.1980, the claim application filed before the Tribunal on 18.5.1983 was well within the statutory period of three years and two months as two months' time is granted for service of statutory notice. In view of the foregoing discussions, I am clearly of the view of that the Tribunal was not justified in holding that the claim petition was barred by limitation. Since on merit the Tribunal has decided in favour of the appellant and that portion of the decision has not been assailed before me by the respondents, the claim case is fit to be allowed.
6. In the result, this appeal is allowed the impugned order is modified, claim of the appellant is hereby granted and the respondents are directed to pay a sum of Rs. 7,649.46 together with interest thereon at the rate of 12 per cent per annum from 11.4.1980 (date of open delivery) till the date recovery is made. In the circumstances of the case, I direct that the parties shall bear their own costs.