1992 PLP 1586 (CLC)

(2) Whether the defendant No.2 were and continue to be the bailee of the goods in question ? If so to what effect ? (3) What was the value of the subject goods? (4) Whether the vessel `Anis Baksh' was seized and captured by enemy in Indo‑Pak War 1971 in East Pakistan with /without cargo? If so, to what effect? (5) Whether no claim was lodged with the defendants ? If so to what effect ? (6) Whether the suit against the defendant No.2 is barred under clause, Article IV of the Schedule of the Goods by Sea Act ? (7) Whether the suit is barred by limitation . (8) Whether the signatory of W.S. on behalf of defendant No.2 was duly authorised ? (9) Whether the policy issued by defendant No. 1 was based on incorrect information and of no consequences? (10) Whether the plaintiffs had no insurable, interest at the relevant time ? (11) Whether the War Risk Insurance Policy was totally invalid and the goods were not covered under War Risks Insurance Ordinance? (12) Whether and to what extent the plaintiffs suffered loss ? (13) To what decree, if any, the plaintiffs are entitled and against which of the defendants or defendant ?

7. After hearing Mr. N. A. Farooqui, learned counsel for the plaintiffs and Mr. Abdul Rauf, learned counsel for the defendants Nos.l, 3 and 4 and Mr. Iqbal Siddiqui, learned counsel for the defendant No.2 and after going through the evidence, my findings on the above issues are as under:‑ ISSUE NOA: The first contention on behalf of the defendants is that the goods in question had not been delivered to the carriers for shipment to Karachi. In this regard the plaintiffs have examined their witness Abdul Jabbar (Exh.5) who was Manager of the plaintiffs' firm at its Chittagong office at the relevant time. According to the witness. he had himself purchased 330 chests of tea valued at Rs.1,75,000 at Chittagong, which was then in East Pakistan and got the consignment shipped at Chittagong port in vessel "Anis Baksh" belonging to the defendant No.2, M/s. United Oriental Esteemship Company. The witnesses received a Mate's Receipt in respect of the consignment and the photocopy has been produced in evidence as Exh.6 as, according to the witness, the original of the said document and other documents produced in evidence by him had been sent to the authorities in Bangladesh in connection with the plaintiffs' claim. It is pertinent to point out that an objection was raised by the learned counsel for the defendants in regard to the admissibility of the said documents and the same objection has again been raised before me by the learned counsel. In this regard, it may be pointed out that Article 76 of Qanun‑e‑Shahadat (Law of Evidence) permits secondary evidence to be led for proof of a document under certain circumstances as enumerated therein. Article 77 of the said enactment bars production of secondary evidence unless the party proposing to give such evidence has previously given to the party in whose possession the document is, or his Advocate a notice to produce such document in the Court, as may be prescribed by law and where no notice is prescribed, such notice as the Court considers reasonable under the circumstances of the case. However, there are exceptions to this general rule, provided by Article 77 itself and according to the proviso to Article 77, clause (6), when the person in possession of original document is out of reach or not subject to the process of the Court, such notice need not be given. In the present case the plea raised on behalf of the plaintiffs is that the documents are in possession of the authorities in Bangladesh and quite obviously the said authorities are not subject to the process of this Court. No evidence has been produced on behalf of the defendants in rebuttal of such pleas. Under the circumstances, the Court has discretion to dispense with the requirement of notice under Article 77 of the Qanun‑e‑Shahadat and permit production of secondary evidence by a party. Since under Article 76 of Oanun‑e‑Shahadat secondary evidence is permissible as pointed out earlier, the Mate's Receipt (Exh.6) can be relied upon by the plaintiffs as a valid piece of evidence.The next objection raised in respect of the same document is that it has neither been signed by any officer of the ship nor does it bear the stamp of the authority which issued the same, therefore, its authenticity is doubtful. In this regard, it may be pointed out that the Mate's Receipt has been issued on printed form of the defendant No.2. Although the defendant in its written statement has disputed the genuinenes of this document, and it has been denied that a genuine or valid Receipt signed by the Master of the Ship or any other competent officer of the defendant No.2 had been issued but it is pertinent to point out that no such evidence has been led on behalf of the defendant No.2. Against this, there is evidence of the plaintiffs' witness Abdul Jabbar, according to whom, the Mate's Receipt was received by him on shipment of the goods. The mere fact that such receipt does not bear the signature of the Chief Officer or the stamp of the defendant No.2 does not render the document invalid since the document has been issued on the printed form of the defendant No.2. Under such circumstances, the onus to prove that the said document is not genuine would be completely on the defendant No. 2 and, as has been pointed out earlier, such onus has not been discharged by the said defendant. Consequently, in my opinion, the Male's Receipt. (Exh.6) is a genuine and a valid document and issue No.l is decided accordingly. ISSUES Nos.2 6 and a. The next question is, whether the defendant No.2 was bailee of the goods in question. Section 148 of the Contract Act defines 'Bailment', 'I3ailor' and `Badee'. According to the definition of the term Bailee, the person to whom the goods are delivered is called the `Bailee'. According to the evidence the goods were delivered by th: plaintiffs to the, defendant No.2's vessel "Anis Baksh," hence the latter was a Bailee and as such the defendant was liable to take care of the plaintiffs goods as a Bailce. However, it has been conceded by the learned counsel for the plaintiffs that the suit against the defendant No.2 is 8 barred by limitation. Article 31 of the Limitation Ac, which relates to suits which may be filed against carriers for compensation for non‑delivery of or delay in delivering goods provides for a period of one year for filing such suits and, according to the third column of the first Schedule, the period of limitation has to commence from the time when the goods ought to be delivered. In the present case the evidence of the plaintiffs witness that the goods were destroyed by the enemy's bombardment at Chittagong Port after they had been loaded on the ship on 2‑12‑1971 has not been rebutted by the defendants. In fact, it is an admitted position that the goods were destroyed by bombardment on 6‑12‑19'

71. Under such circumstances, it has been conceded by Mr. N.A Farooqui that the suit against the defendant Nb.2 ought to have been filed within one year from 6‑12‑1971. Since the present suit wars filed on 2‑12‑19'74, the same is clearly time‑barred as against the defendant No.2. Consequently, in any case the plaintiffs are not entitled to get a decree against the defendant No.2. In view of this finding it is not necessary for me to go into the question of the liability of the defendant No.2 as a Bailee. An issue has also been raised whether the signatory of the written statement filed on behalf of the defendant No.2 had been duly authorised by it but the said issue also becomes redundant in view of my finding, on issue No.2. Issues Nos.2, 6 and R are, therefore, decided accordingly. ISSUE NO.3: The next question to be determined is as to the value of the goods. In this regard it is pertinent to point out that according to the plaintiffs' witness Abdul Jabbar, the value of the goods was of Rs.1,7S,(

100. The witness, according to him, had himself purchased the goods. The evidence of this witness further shows that the goods were also got insured by the plaintiffs with the defendant No.] for the same amount. This is further supported by the two insurance policies obtained by the plaintiffs from the defendant, copies of which have been produced as Exhs. 7 and 9 respectively. No doubt, the value of the goods as claimed by the plaintiffs has not been admitted by the said defendant but the value of the goods should have been verified by the defendant at the time of issuance of the Insurance Policies by it. After the defendant accepted the premium and issued the Insurance Policies, the evidence produced by the plaintiffs, which goes unrebutted has to be accepted. I accordingly hold ' that the value of the goods was RS.1,75,000 as claimed by the plaintiffs. The next question is, whether the ship of the defendant No.2 had beet seized or destroyed by .the enemy during the Indo‑Pakistan War in 1971. It is pertinent to point out that the defendant No.2 in its written statement has clearly admitted that the vessel "Anis Baksh" had been seized and captured by the enemy in Indo‑Pakistan War 1971. According to the plaintiffs' witness Abdul Jabbar the ship was sunk alongwith the loaded consignment of the plaintiffs after the bombardment thereof at the port of 'Chittagong. This evidence also goes unrebutted. Consequently, I hold that the said ship of‑the defendant No.2 was destroyed on account of the bombardment by enemy alongwith the plaintiffs' goods and issue No.4 is, therefore, decided accordingly. As far as the issue No.5 is concerned, although admittedly no formal claim had been lodged by the plaintiffs with the defendant No.2 but a claim had been lodged with the defendant No.l which had issued the two insurance policies, Exhs. 6 and 9 respectively. The second polity which was under the War Risks Insurance Ordinance, 1971 was issued by the defendant No.1 as agent of the defendants Nos.3 and

4. Consequently, .issue No. 5 is decided accordingly. It is a common ground between the parties that the question as to limitation for filing of the present suit against the defendants Nos.l, 3 and 4 is governed by Article 86 of the Limitation Act. Article 86 provides for a period of 3 years for filing of a suit on " a policy of insurance when the sum insured is payable after proof of loss has been given to or received by the insurers". The period of limitation for filing of such suit according to the third column of the first Schedule, is to be computed from the date of .the occurrence causing the loss: The defendants have not disputed the plaintiffs' claim that the goods in question which were loaded on the ship of the defendant No.2 on 2‑12‑1971 were destroyed on 6‑12‑1971. Consequently, the period of limitation of three years is to be computed from 6‑12‑1971 and the present suit which was filed on 2‑12‑1974 was, therefore, filed within time. Consequently, I am of the view that the suit is not time‑barred. ISSUE N0.9: So far as issue No‑9 is concerned, although, the defendants Nos. 1, 2 and 3 have claimed that the policy of insurance in respect of the goods in question had been issued by the defendants on the basis of incorrect information but the onus to establish the same was clearly on the said defendants. Since no evidence has been produced by the defendants in this regard, they have failed to discharge such onus. The issue is, therefore, decided against the defendants. ISSUES NOS.10 and 11 Mr. Abdul Rauf, learned counsel for the defendants Nos.l,. 3 and ‑l liar argued that although the First policy (Exh.7) had been issued by the defendant No. 1 on 4‑12‑1971 but such policy did not provide for any cover against war Risks. The other policy which was issued by the defendant No. I as agent of the defendants Nos.3 and 4 under the War Risks Insurance Scheme (Exh.1t) had been issued on 31‑12‑1971 when the goods insured under such policy had admittedly been destroyed on 6‑12‑1971. Therefore, according to tile learned counsel, the plaintiffs had no insurable interest in the goods at the time when the insurance policy was issued. Even, the premium, according to the learned counsel, for the goods had been paid by the plaintiffs at the time when the goods had already been destroyed. The next argument of Mr. Abdul Rauf wits that the journey of the goods had already commenced before tile commencement of the War Risks Insurance Ordinance. It is pertinent to point out here that the War Risks Insurance Ordinance came into force on the 5th December,1971 but,, after the amendment of section 1 of the said Ordinance by Ordinance No. XXXVII of 1972, the date of the commencement of the Ordinance was altered from 5th December, 1971 to 3rd December, 1971. Turning now, to the contentions of Mr. Abdul Rauf, the first contention of the learned counsel has been rendered ineffective by the policy issued by the defendant No.l (Exh.7) which clearly shows in the first column thereof that not only the plaintiffs had taken an insurance policy covering war risk but even a separate premium for the same had been charged by the defendant No. l from the plaintiffs. The first contention of the learned counsel for the defendant No. 1 is, therefore, not correct. So far as the second contention of the learned counsel is concerned, although, it is true that .the insurance policy under the War Risks Insurance Scheme had been issued to the plaintiffs on 31‑12‑1971 and the premium for the same had also been received by the defendant No.l on the said date, when the goods in question had admittedly been destroyed already, but as has been pointed out, the said insurance policy had been issued under the Risks Insurance Ordinance, 1971. This Ordinance, which was special enactment was promulgated for providing for the insurance of certain goods I and property in Pakistan against war risks. The Ordinance, according to section 2, clauses (t) and (g) thereof, defines Goods' and `Goods in transit' respectively. The goods in question in the present case had, recording to tile. claim of the plaintiffs, been shipped on the vessel of the defendant No.2 fore their delivery at the Karachi Port on 2‑12‑1971. Such goods were covered by the definition `Goods in transit' as contained in clause (g) of section 2 of the said Ordinance which defines `Goods in transit" to mean as such goods as are being imported into Pakistan or are shipped or otherwise despatched from one province to another or are in transit in the same province by railways in land steamer, barge or a goods vehicle". The said Ordinance vide section 2(h) also defines "goods or property insurable under this Ordinance" and such goods or property in relation to any goods in transit have been defined as all goods which are imported into Pakistan or arc shipped or otherwise despatched from one province to another or are in transit in the same province by railways In land steamer, barge or a goods vehicle, but does not include goods which are in transit by a ship that sails from a port of shipment before the coming into force of this Ordinance. This definition shows that all such goods which had fit already been shipped or in other words, loaded on the ship would fall with in the purview of the expression `goods or property insurable under this ordinance'. The said expression would include even goods which had already, been loaded when the said Ordinance came into force. The goods excluded from the said definition are only such goods which were in transit by a ship which sailed from n port of shipment before the coming into force of the sail Ordinance. The goods had been shipped on "Anis Baksh" on 2‑12‑1971 and according to the evidence of P.W. Abdul Jalibar before the ship had left the port of Chittagong, the goods got destroyed by enemy bombardment on 6‑12‑1971. Consequently, even if the date of the commencement of Ordinance is 3‑12‑1971,the goods in question having been already shipped at the time of promulgation of the Ordinance, were insurable under the Ordinance. Since the ship at that time had not left the port of Chittagong the goods were clearly, insurable goods. According to section 8 of the said ordinance the owner of such goods was under an obligation to take out a policy of insurance against war risks as the said section provides:‑ "

8. Compulsory insurance of goods.‑(1) On or after such date as tile Central Government may, by Notification in the official Gazette, specify, every owner of any goods or goods in transit insurable under this Ordinance shall take out a policy of insurance against war risks issued in accordance with the Scheme relating to such goods or goods in transit. (2) The provisions of subsection (1) shall not apply‑‑‑ (i) to goods insurable under this Ordinance, other than goods in transit referred to in dub‑clause (ii) of clause (h) of section 2, if and so long as the value of such goods does not exceed such amount as the Central Government may by notification in the official Gazette, specify in this behalf; or (ii) to goods of any description which the: Central Government may, by Notification in the official Gazette, specify in this behalf." As is evident from section H every owner of goods or goods in transit, insurable under the Ordinance was required to take a policy of insurance. Contravention of the provisions of section 8 made the owner liable to a penalty as provided by section 13 of the Ordinance. Nothing has been shown by Mr. Abdul Rauf to indicate that the goods otherwise covered by the provisions of section 8 were intended to be exempt from its operation in case they got; destroyed by the enemy before a policy of insurance in respect thereof could be obtained by their owner. Contrary to that, the object appears to be to provide 1 for an insurance cover to all goods referred to in the Ordinance as "goods or property insurable under this Ordinance". The defendant No.1 acting as agent for the defendants Nos.3 and 4, therefore, issued a policy under the provisions of the said Ordinance and also charged premium from the plaintiffs for the same (see Exhs. 8 and 9). Consequently, even if the goods were not in. existence at the time when the Policy of Insurance had been issued by the defendant No.l, the provisions of War Risks Insurance Ordinance, being those of a special law, must take precedence over any general law. The property in question being compulsorily insurable, the argument of Mr. Abdul Rauf cannot be accepted. The argument is, therefore, repelled and issues Nos.10 and 11 are, therefore, answered accordingly. ISSUE N0.12: The next question is, to what extent was the loss suffered by the plaintiffs. According to the evidence of the plaintiffs' witness Abdul Jabbar, the ship was sunk alongwith the plaintiffs' cargo after its bombardment. Consequently, the loss suffered was to the full extent of the value of the property, which accordingly to the evidence,‑was Rs.1,75,

000. Issue No.12 is, therefore, answered accordingly. ISSUE No.13: The upshot of the discussion is that although the suit against the defendant No.2 is time‑barred, but the defendants Nos.l, 3 and 4 are liable to pay the amount claimed by the plaintiffs. The defendant No.1 is liable to pay the plaintiffs' claim on account of the policy, Exh.7 and the defendants Nos.3' and 4 on account of the Policy, Exh

9. In the result, the suit of the plaintiffs is decreed as prayed against the defendants No,], 3 and

4. A.A./H‑292/K Suit decreed.