1983 PLP 2708 (CLC)

(1) Whether the defendants are liable for‑the leakage? (2) Whether the plaintiffs have right to sue? (3) Whether the findings of the survey report are binding on the defendant ? By a consent application dated 15th April, 1972, it was agreed by the learned counsel for the parties that the documents may be taken on record and the case may be fixed for arguments without any oral evidence. The learned Judge, Small Causes Court passed the three judgments of even dated and decreed the above suits. The applicant being aggrieved by the above judgments/ decrees have filed the present revision applications.

2. Mr. Latif Shakoor learned counsel for the applicant has made the following submissions : ‑ (1) That the suit was time‑barred by virtue of section 10 of the Carriers Act, 1865. (2) That since the value was not disclosed the applicants were protected by section 3 of the Carriers Act,, 1865. (3) That the burden of _ proof of negligence was on the part of the respondents. (4) That .in any case the respondents were unable to prove the quantum of loss suffered by them.

3. Reverting to the first contention, it may be pertinent to observe that section 10 of the Carriers Act, 1865 .(hereinafter referred to as the Act) provides that no suit shall be instituted against the common carrier for the loss of, or injury to the goods entrusted to him for carriage unless notice in writing of the loss or injury has been given to him before the institution of the suit within six months time when the loss or injury has come to the knowledge of the plaintiff. 1t is evident that the above section does not provide limitation period for filing of a suit against a carrier, but it only contemplates service of notice of a claim within 6 months from the date of the knowledge of the loss, whereas IA the limitation for the purpose of suit is provided in Articles 30 and 311 of the first schedule to the Limitation Act, which is one year.

4. With reference to the second contention of Mr. Latif Shakoor, it may be mentioned that section 3 of the Act is also not applicable to the instant case as it contemplates disclosing of the value of the goods mentioned in the schedule to the ‑Act. It is an admitted position that in the schedule to the Act chemicals do not figure and, therefore, the above section cannot be pressed into service.

5. As regards the third contention of Mr. Latif Shakoor, namely, that the burden of proof of negligence was on the part of the res pondents, it may be observed that reliance has been placed on sections 151 and 152 of the Contract Act, 1872. Section 151 provides that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would in similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed. Where as, section 152 of the Contract Act, provides that in the absence of any special contract the bailee is not responsible for the loss, destruction, deterioration of the thing bailed if he has taken the amount of care provided for in section

151. In the instant case the applicant took the drums contained chemicals for transporting the same from Karachi to Lahore against a clean receipt without any qualification. However, condition 5 of the receipt provides as follows :‑ "The transport company will not be responsible for the leakage item i. e. ghee, oil and morabba etc." It has been vehemently urged by Mr. Latif Shakoor that the burden of proof of the negligence was on the respondent, whereas the learned trial Court wrongly placed it on the applicant. He has referred to the case of Messrs Queen's Land Insurance Co. Ltd. v. Trustees of the Port of Karachi through the Chairman of the Port Trust, Karachi and another (P L D 1976 Kar: 238). In the above case goods of certain consignment consisting of rolls of Jute meetings and Jute carpets had arrived af the Karachi Port and were stored in open shed, where fire took place which was extinguished by the Fire Brigade of Karachi Port Trust. The plaintiff as the subrogatee filed suit on the ground that they had paid the loss suffered by the consignee on account of the aforesaid fire. The defence taken by the Karachi Port Trust was that' they had taken all reasonable steps as the bailee and proper care was taken. In this background of the facts it was observed by a Single Judge of this Court that the burden of proof of the negligence against the Karachi Port Trust was on the plaintiff. In my view once a carrier issues a clean receipt without any qualification, the burden of proof is on him to show that in spite of taking due care as a prudent man he could not have avoided the loss complained of. In the instant case, the applicant' has not led any evidence to show as to how the leakage had taken place. On the other hand, the survey report which was brought on record with the consent of the applicant indicates that the leakage had taken place on account of damage to‑the drums. I am also inclined to hold that the burden was on the applicant to show that the damage to the drums was not caused on account of any negligence on their part after having issued a clean receipt. In other words, it is for a carrier to explain the circumstances under which damage to the con signment is caused and not for the consignor or consignee or a person claiming through them. The case cited by the learned counsel for the applicant is not applicable to the present case.

6. Referring to the last contention of Mr. Latif Shakoor that the respondents have failed to prove the quantum of loss, it may be obser ved that from the written statement of the applicant, it is evident that the applicant had not specifically denied the quantum of loss. No issue was framed on that account. Furthermore, the learned trial Court has decreed the suits on the basis of the short quantity admitted by the applicant and not for the quantities mentioned in the survey reports. In this view of the matter no exception can be taken to the amount of decree. It may also be observed that from the judgment, it seems that this plea was not raised before the learned trial Court and, there fore, it will not be just and proper to non‑suit the respondent on that account.

7. For the aforesaid reasons the above revision applications have no merit and therefore, they are dismissed, but there will be no order as to costs. M.Y.M. Revisions dismissed