1984 PLP 2575 (CLC)

(a) Provincial Small Causes Court Act (IX of 1887)‑‑ ‑‑‑S.25‑‑Carriage of Goods by Sea Act (XXVI of 1925), Art.III, r.6, Karachi Port Trust Act (VI of 1886), S.87‑‑Limitation Act (IX of 1908), S.15(2)‑ Damage of goods‑‑Claim of compensation‑‑Petitioners, carriers of consign ment under contract failing to prove goods discharged in undamaged conditions and declining to associate respondents in survey of goods on flimsy grounds that notice for survey was time‑barred‑‑Suit filed before trial Court within one year of cause of action was well within time‑ Findings of trial Court, held, based on sound reasonings and need no interference in revision, in circumstances. P L D 1973 S C 160; P L D 1959 Dacca 73; P L D 1959 Dacca 43; P L D 1959 Dacca 536 and P L D 1974 Kar.321 ref. (b) Provincial Small Causes Court Act (IX of 1887)‑‑ ‑‑‑S.25‑‑Damage to goods‑‑Compensation‑‑Quantum‑‑Loss occasioned by damage caused to contents proved by way of survey report duly proved by surveyor and loss in terms of recovery determined on basis of invoices produced in evidence genuineness of which not challenged and extent of damage assessed on basis of collateral evidence‑‑Quantum of damage to goods, held, proved. ‑‑[Compensation], P L D 1969 Kar. 495 ref. This Revision Application under section 25 of the Provincial Small Causes Court Act, 1887 is directed against judgment and decree dated 21st February, 1974 passed by the learned Judge, Small Causes Court, Karachi (Mr. Ahmed Ali. U. Qureshi) in Suit No.818 of 1971.

2. The suit was filed by the respondent No.1, the United Insurance Company of Pakistan Ltd., Karachi (hereinafter referred to as the Insurance Company) for recovery of Rs.4,330.10 from the appellants and the respondent No.3. The claim was based on alleged damage, in transit, to a consignment of three cartons containing medicines, shipped under Bill of lading No.151, dated 23rd January, 1971 by means of a vessel s. s. Exporter, belonging to the appellant No.1, for Prince Medical Stores, Hyderabad. The appellants No.2 are the local agents at Karachi of the appellant No.1. The goods were insured with the Insurance Company. The vessel berthed at Karachi Port on 27th March, 1971. The cargo was discharged there from on 29th March, 1971 and was entrusted to Karachi Port Trust. The bill of lading was endorsed to Messrs Intra Overseas Corporation Clearing and Forwarding Agents (hereinafter referred to as the clearing agents) for clearance of the consignment. A representative of the clearing agents found the carton damaged. He served notice dated 1st April, 1971 on the appellant No.2 for survey of the cargo/consignment. The request for survey was rejected by communication dated 2nd April, 1971 on the ground that it was time‑barred. The Clearing Agents took delivery of the cartons from the Karachi Port Trust on 3rd April, 1971 for customs checking. They then got the cartons surveyed by Mr.Ismail Madina Wala Surveyor on 5th April, 1971. The Surveyor detected shortfall of 120 vials and breakage of 310 vials of neoplex super B‑

12. Survey report was issued on 8th April, 1971. The damage in terms of money was assessed at Rs.4,330.10. Survey fee charged was Rs.40. Claim was therefore lodged for recovery of Rs.4,370.10. The Insurance Company discharged the claim under letter of subrogation and claimed reimbursement from the appellants and the respondent No.2. They denied the claim. Hence the respondent No.1 filed the suit.

3. The appellants and the respondent No.2 (defendant 3 in the suit) resisted the suit. All of them contended that no damage had been caused to the cartons. A legal plea of time bar under section 87 of the Karachi Port Trust Act also was raised.

4. Following three issues were framed:‑‑ (1) Whether the goods consigned were delivered and discharged in a good condition to the consignees. (2) What amount the defendants are liable to pay to the plaintiffs. (3) Whether the suit is barred under section 87 of Karachi Port Trust Act.

5. The parties adduced evidence, oral as well as documentary. The learned trial Judge held the appellants liable to pay compensation for damage caused to the consignment and also burdened them to bear the surveyor's fees. He also held that the suit was not barred under section 87 of the Karachi Port Trust Act. But he exonerated the respondent No.2 of the liability of damage caused to the consignment. Accordingly, the suit was decreed against the appellants for the sum of Rs.4,230.10 without costs.

6. Mr. Fakhruddin, Advocate for the appellant has urged that the appellants have been wrongly burdened with the liability of damage to the consignment as. according to him, the cartons were discharged in undamaged condition and were entrusted to the Karachi Port Trust intact. He has placed reliance on 'Out Turn Report' dated 29th March, 1979 put in evidence as Exh.32. He has further contended that the survey report which constitutes basis for the suit claim is belated and cannot be relied upon. He has also contended that the quantum of damage has not been proved. He has cited P L D 1969 Kar. 495, as the supporting authority.

7. On the other hand, Mr. Ghulam Muhammad Ibrahim, Advocate for the respondent No.1 (the plaintiff in the suit) has argued that the appellants were the carriers of the consignment under the contract and had to give delivery of the goods in intact condition. He has further argued that the appellants did not produce a certificate envisaged under section 37 of the Karachi Port Trust Act that the goods had been discharged and entrusted to the Karachi Port Trust in undamaged condition as to escape the liability. According to him, the outturn report Exh.32 relied upon by the appellants does not constitute the certificate under section 37 of the Karachi Port Trust Act. He has relied upon P L D 1973 S C

160. He has also cited P L 0 1959 Dacca 73. p.536 and p.43, P L D 1974 Kar.321 in support of his contentions.

8. Mr. Abbas, Advocate appearing for Mr.Qamarul Islam, the Advocate for Karachi Port Trust, has advanced the argument that the appellants have not proved that they had discharged the goods and entrusted them to the Karachi Port Trust without any damage to them.

9. This is a revision application under section 25 of the Provincial Small Causes Court Act, 1887, which provides that the High Court may, for the purpose of satisfying itself that. a decree or order made in any case decided by a Court of Small Causes was according to a law, send for the records of the suit and pass orders with respect thereto as it may think fit. Accordingly, it is to be examined whether the impugned verdict is in accordance with law. The learned Judge has held that the appellants have failed to prove that they had discharged the goods in undamaged condition. The appellants had declined to associate in the survey of goods on the flimsy ground that the notice for survey was time‑barred. The findings of the learned Judge that the appellants had failed to discharge the burden that they had delivered the goods in undamaged condition is based on sound reasoning and does not call for interference.

10. Next is the question of the quantum of damages. The respondent No.1 did prove the loss occasioned by the damage caused to the contents by way of survey report Exh.11 which was duly proved by the surveyor Mr. Ismail Madina Wala (No.2). The loss in the terms of recovery was determined on the basis of invoices produced in evidence, the genuineness of which was not challenged. It was., of course, observed in the case cited as P L D 1969 Kar.494 relied upon by the learned counsel for the appellants that the invoices in the absence of the evidence of the shipper were not admissible. However, the extent of damage was assessed on the basis of collateral evidence. In this case also invoices were not proved. But the price of the damaged articles was not disputed and the loss assessed by the surveyor is unexceptionable.

11. The question of time limit prescribed under section 87 of the Port Trust Act agitated in the pleadings has been elaborately dealt with by the learned Judge who has rightly held that, by the exclusion of notice period of one month under section 15(2) of the Limitation Act, the suit was filed within the period of six months prescribed under section 87 of the Karachi Port Trust Act. Provisions of section 87 of the Karachi Port Trust Act operate only in respect of cause of action against the Karachi Port Trust, the respondent No.2, the suit against which was dismissed on factual merits. As regards the cause of action against the carriers, the appellant No.1, and their local agents, the appellant No.2, the suit was governed by rule 6 of Article III of the Carriage of Goods by Sea Act, 1925, which prescribes a period of one year for bringing the suit, wherefrom the present Revision Appeal has arisen having been filed within one year of the cause of action, was well within time.

12. For the reasons recorded above, there is no merit in the Revision Application and it is dismissed with costs. M.Y.M. Revision petition dismissed.