HAJEE K ASSAINAR Vs. MALABAR STEAMSHIP COMPANY LTD
HIGH COURT OF KERALA
HAJEE K. ASSAINAR
MALABAR STEAMSHIP COMPANY LTD.
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(1.) The only point that calls for determination in this second appeal relates to the nature and extent of the liability of a carrier for short delivery in terms of weight in a case in which the number of bags and weight noted in the Bills of Lading are qualified by the notation (rubber stamp seal), "Weight declared by the shippers, but not checked."
(2.) The plaintiff was the consignee in respect of 2000 bags of sugar purchased by him through his commission agent, Pw. 2, From a Sugar Factory at Kakkinada and shipped from Vizagapatam in 's.s. Janani' belonging to the defendant Steam Ship Company, under Exts. P1, P1(a), P1(b) and P2, Bills of Lading, which showed the weight of each bag to be 101 Kgs. The plaintiff's forwarding and clearing agent, Pw. 1, at the time of delivery at Cochin found that there was shortage of contents in 40 bags, and on survey being done at his instance, it was revealed that the shortage came to 1002 Kgs., and a shortage certificate to that effect was issued by the local agents of the defendant Steam Ship Company. The plaintiff's suit is one for recovery of the value of the slackage by way of damages from the defendant.
(3.) Pw. 2 in his evidence deposed that he had caused the bags to be weighed at the factory and that the weight was found to be as mentioned in the Bills of Lading. He also stated that he had checked the weight of certain bags taken at random from the whole lot at the time when they were kept in the shed belonging to the shipping agents and found it to be correct. Believing this evidence of Pw. 2, and taking the view that the shipping company was bound by the statement in the Bills Lading in regard to weight, the Trial Court decreed the suit. The view taken by the first appellate court was that Pw. 2's evidence that he had found the weight correct could not be accepted as conclusive as the possibility of shortage occurring during the transit of the goods from Kakkinada to Vizagapatam when the consignment was not accompanied by the agents of the plaintiff or the defendant could not be ruled out. The first appellate court further held that the weight noted in the Bills of Lading was subject to the endorsement incorporated by the rubber stamp seal, "Weight declared by the shippers, but not checked", and as such, the weight noted in the Bills of Lading cannot be treated as prima facie evidence against the carrier so as to shift the burden of proof on the question of initial weight from the shippers to the carrier.;
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