1986 PLP 1392 (MLD)

Date of hearing: 9th March, 1986. This suit was filed for the recovery of Rs.7,00,000 being the value of the goods which, according to the plaintiff, were shipped from Chittagong to Karachi and which were lost on the high‑seas on account of the attack by Indian Planes and the sinking of the Vessel during the voyage. According to para. 1 of the plaint the plaintiffs shipped from Chittagong to Karachi goods as per details given in the Schedule "A" attached to the plaint and valued at Rs.7,74,863.72 per S.S. "AI‑Abbas" on or about between 30th November. 1971 and Ist week of December, 1971 by different bills of ladings issued by defendant No.4 to whom the said ship "A1‑Abbas" belonged." Insurance cover was obtained in respect of these goods by the plaintiff from defendant No.1 on 4th December, 1971 for a sum of Rs.7,00,000 under different Cover Notes and subsequently regular policies were obtained from defendant No.1. It is also admitted position that letter on these goods were further insured under the War Risks Insurance Ordinance read with Scheme framed there under. According to the plaintiff the goods never reached Karachi as the ship S.S. "Al‑Abbas" on which they were loaded was lost in transit either on account of the enemy action or it was forcibly seized by the enemy. The defendants contested the claim by filing separate written statements and as many as 10 issues were framed. In the situation of the case Issue No.3 would be a decisive factor and it would not be necessary to dispose of other issues. Issue No.3 is as follows:‑ "Did the plaintiff's ship goods from Chittagong on board 'A1‑Alibas' between 30th November, 1971 and 1st week of December, 1971? If so, what was the nature, quantity and value of the goods?" The contention of the learned counsel for the defendants Nos.l, 2 and 3 is that their liability would accrue only if the goods were proved to have been shipped on the Vessel and the loss has occurred during the voyage. On this argument there is no quarrel and it is established position that if the goods were not shipped on board the ship, the Insurance Companies would not be answerable for any hazard. On this point the burden was on the plaintiff to prove that the goods were actually shipped. In the statement of defendant No.4 it is clearly denied that these goods were ever shipped or were among cargo that sunk with the ship. The following para. of the written statement of defendant No.4 is relevant which may be reproduced below:‑ "The allegations contained in paragraph 1 of the plaint are denied except the fact that the Vessel 'Al‑Abbas' belonged to these defendants." Again in para 3 of the written statement it is alleged that "it is, however, denied that the plaintiff's goods‑were also on board the ship as alleged by them." With this denial of the defendant No.4 on the record Issue No.3 as produced earlier, was framed and the plaintiff proceeded to examine the evidence on this issue. Mr.Abdul Ghaffar P.W.1 has been examined and he has produced 10 bills of lading Exh.5/1 to 5/10 in order to show that the goods were shipped on board Vessel "A1‑Abbas". The production of these documents was objected to by the defendants and they have not been exhibited but simply have been marked. The contention raised is that these documents do not bear the signature of the Shipping Company or the agent of the Shipping Company and therefore, they do not qualify to be called bills of lading. They are mere pro‑formas of the bill of lading. An attempt was made by the witness to indicate that the bills of lading were sent to the Shipping Company at the time when the claim was lodged. It appears that the witness wanted to show that the original did exist and he had sent those original to the Shipping Company. The Shipping Company, however, denies that these bills of lading were ever sent to them. Additionally they contend that whatever documents were sent, they were returned under their covering letter, dated 12‑6‑1972 (Exh.5/26). No other document has been produced b the plaintiff to show that the goods were ever shipped on S.S. A "A1‑Abbas". Further the plaintiff's only witness has admitted in cross‑examination that "it is correct that I was not in Chittagong a the time of the shipment of the goods there." After this admission any possible support for shipment of the goods on the basis of persona knowledge is also ruled out. Not only the factum of shipment of the cargo remains unproved, but the plaintiffs have also failed to prove what was the nature, the quantity and value of the goods. Issue No.3, therefore, remains unproved by the plaintiff and must be answered in the negative. In view of the above findings on Issue No.3, there is no escape from the conclusion that the plaintiffs have failed to show that hat goods, if any, were shipped. As such no decree can be passedin his favour. After the findings on Issue No.3, the discussion on other issues would be of no consequences. This suit is, therefore, dismissed for want of proof of the claim of the plaintiffs. A.A Suit dismissed.