MUGAL LINE LTD Vs. FOOD CORPORATION OF INDIA

JUDGEMENT

(1.) The 1st defendant against whom a decree for realisation of Rs. 20,214.26 with interest at 6 per cent per annum thereon from the date of suit till realisation with proportionate costs of suit was decreed has come up in appeal challenging the same. The Government of India through its Chief Controller of Chartering, Central Chartering Committee, New Delhi "chartered the 1st defendant's ship s.s. "SAUDI" whereunder the 1st defendant agreed to carry 5000 long tons 5 per cent more or less, at the 1st defendant's option, rice in gunny bags from J Ports out of Burma for discharge at Cochin 1/2 Ports East Coast India or 1/2 Ports West Coast India at the option of the Government of India, the Charterer. Pursuant to the aforesaid Charter Party Agreement which is evidenced in this case by Ext. P1 dated 1st November 1965 the 1st defendant received into their ship s.s. "SAUDI" on 16th November 1960 55,406 bags of rice, on 1st December 1965, 23, 511 bags of rice and on 4th December 1965 another consignment of six bags of rice The total weight of the rice contained in these bags was 5611-19-1-21 L.T. Exts. D4, D5 and D6 are the respective bills of lading, Exts. P2, Ext. P3 and P4 are respectively the duplicate copies of Exts. D4, D5 and D6. It is the case of the plaintiff (The Food Corporation of India) in whose favour Exts. D4 to D6 Bills of Lading were endorsed by the Charterer, the Government of India, that after all adjustments made there was a net short delivery of 36-943-202 M. T. of rice by the carrier, the 1st defendant. The plaintiff, therefore, filed the suit out of which this appeal arises for damages for short delivery. As already stated that claim was upheld and the suit was decreed.

(2.) The Steamer s.s. "SAUDI" arrived at Cochin on 13th December 1965 and completed discharge of cargo on 19th December 1963. While the goods were being discharged and removed to the Wharf the Dock Inspector of the Plaintiff Corporation, who has been examined in this case as Pw. 1 noticed that certain bags were burst or torn or slack; he, therefore, requested the 2nd defendant, M/s Pierce Leslie and Co., Ltd., who are the agents of the 1st defendant, for a survey of the goods. Ext. P7 is the copy of the letter requesting survey addressed to the 2nd defendant and is dated 20th December 1965. After discharge the cargo was stacked inside the Port Transit Shed in the wharf. The goods were surveyed by Lloyd's Agents and Ext. P8 dated 17th June 1966 is the survey report. Ext. P8 shows that the cargo was surveyed on 24th, 27th and 28th December 1965 as also on 1st, 3rd and 23rd February 1966 in the Port Transit Shed. The survey report further shows that 2060 bags were torn and the slack and mouth burst, 522 bag opened and loosely restitched and six bags were torn The total shortage in the aforesaid bags numbering 2588 with reference to the weight given in the three bills of lading was 78-001-640 M. T. Another 72 bags over and above the aforesaid 2588 bags were found wet and the contents thereof had been discoloured and damaged. Those 72 bags of rice were reconditioned and surveyed. The survey report shows that the damage to the contents of these 72 bags was occasioned due to the same having come into contact with water at some stage during transit. The survey report also states that on chemical test the damaged rice indicated no traces of salt. After adjusting the sweepings taking into account deduction allowance as noted by the surveyors the shortage in the 72 bags was reckoned as 0-397-160 M. T. Thus the total net weight of the goods short delivered to the plaintiff was 78-398 800 M. T. The plaintiff claimed damages in respect of short delivery as aforesaid of the goods entrusted to the 1st defendant for carriage, at the invoice rate; and also claimed proportionate freight and insurance. The plaintiff submitted claim bills Exts. P15 and P16 both dated 18th July 1966. However, in calculating the average weight per bag the plaintiff committed an error and therefore revised claim bills, Exts. P18 and P19 were submitted on 24th October 1966 and 26th October 1966. The suit claim is in accordance with the revised claim bills.

(3.) The only contention raised before us was that the plaintiff has not discharged the initial burden of proof. The argument was that the plaintiff has not established a prima facie case that the loss or damage occurred while the goods were in the shipowner's custody and since the plaintiff has failed to establish that the damage occurred on account of improper or negligent storage while the goods were in the custody of the 1st defendant, the plaint claim for damages is unsustainable. In support of this argument the learned counsel for the 1st defendant appellant relied on the statement in the bills of lading: "said to weigh". He also relied on another statement in the bills of lading, viz., "Ship not responsible for weight of bags on the outturn". However, all the three bills of lading Exts. D4 to D6 as also their duplicates Exts. P2 to P4 show that the goods were "Shipped in apparent good order and condition" which means that the Ist defendant issued clean bills of lading without any reservation.