P L D 1988 Karachi 131 (PLP)

AJMAL MIAN, J.‑‑This High Court Appeal is directed against the judgment dated 29‑1‑1981 passed by a learned Single Judge in Suit No.220 of 1968 decreeing the suit of the appellants /plaintiff against the Respondent No.2/Defendant No. 2 with costs but dismissing the same against Respondent No.l/Defendant No.l.

2. The brief facts leading to the filing of the above appeal are that in the year 1964, the appellants ,who were inter alia an importer, entered into a contract of bailment with Respondent No.2, whereby the latter was holding as bailee the appellants' goods, namely the case of Playing Cards that were sent to it from time to time through the appellants' Clearing Agents M/s. G.M. Corporation, Chittagong. Some of the documents were sent direct to Respondent No.2 Bank for clearing the documents for storage as bailee. As per arrangement Respondent No.2 used to deliver the mentioned number of cases to the person named against the appellants' delivery order sent to it from Karachi, the sale proceeds used to be credited by Respondent No.2 in the appellants' account. It is the case of the appellants that Respondent No.2 could not have disposed of their goods except against the delivery orders issued by them. It appears that appellants obtained 2 Insurance Policies namely, Fire Insurance Policy No. 0900389 and the other against theft. The Burglary (Business Premises) Policy No.1154213 dated 27‑2‑1967 of the period of insurance from four o'clock in the afternoon on the 5th day of March, 1967 to four o'clock in the afternoon on the 5th day of March, 1968 for a sum of Rs.2,00,000, hereinafter referred to as the Insurance Policies (Ex.10/19). It may be observed that as per contents of the Insurance Policy and averments contained in para 4 of the plaint the plaintiff and respondent No.2 as mortgagee were the insured. It also seems that Respondent No.2 by its letter dated 12‑2‑1968 informed the appellants about fire having destroyed some of the goods in the godown which according to their own intimation was detected by respondent No.2 on 9‑2‑1968 in respect of which a claim was lodged, which was settled as per para 6 of the Plaini and para. 6 of the written statement of Respondent No.l. It further appears that Respondent No.2 by their letter dated 22‑2‑1968 Ex.10/31 informed the appellants as to the position of the stock lying in their godowns. They requested the appellants to send them the statement showing the total quantity sent to them from January 1964 of the last consignment and the total quantity delivered from reconciliation at the earliest convenience The above letter was followed by respondent No.21s letter dated 24‑2‑1968 Ex.10/32 whereby they informed the appellants about the state of the stock lying in their stock of the Playing Cards lying in their godowns and also intimated that there was shortage of 16 cases Broadway plying cards and 13 cases 17 dozens of Bonus Playing Cards. It was also stated that it appeared that shortage was due to theft and burglary in the godown in question. It may be advantageous to reproduce the last but one para which contains the reason, as the above document is the foundation of the appellants' claim. The same reads as follows: ‑ "It appears that the shortages are due to theft and burglary in the godown in question and since it has just been detected we are reporting the matter to the police." The appellants by their letter dated 26‑2‑1968 Ex.10/33 informed the respondent No.1 about the above shortage and requested for further action in the matter. It was also stated that respondent No.2 had reported the matter to the Police. It may be mentioned that Respondent No.1 in response to respondent No.21s letter dated 24‑2‑1968,' sent their letter dated 27‑2‑1968 to Respondent No.2 Ex.10/34 pointing out therein that during the discussions which they had with Respondent No.2, the latter did not mention about any theft or burglary and that fact was not even mentioned by the appellants Proprietor Mr. Agha, who had a discussion with Mr. Haq of Sinclair Murray on 24‑2‑1969. It appears that the above letter was followed with further correspondence. Respondent No.1 and Respondent No. 2 repeatedly denied their liability and, therefore, the appellants had to file the aforesaid suit for the recovery of Rs.1,00,914 against the respondents. The above suit was resisted by both the respondents. On the basis of the pleadings of the parties the following six issues were framed by consent of the appellants and Respondent No.l: (1) What was the nature of relationship in respect of the goods between the plaintiffs and the Defendant 2 and whether they ‑are liable to the plaintiffs for the shortfall as alleged? (2) Whether the loss mentioned in para 8 of the plaint actually accrued. If , so what is the actual shortage and the resultant quantum of loss? (3) Whether and if so which of the Defendants is liable for the loss if any and to what extent? (4), Whether in the circumstances of the case the loss is covered by the Insurance Policy in question? (5) Has this Court jurisdiction to try the suit? (6) Whether the suit has not been properly drawn upsigned, verified and is bad for defect of parties' as alleged in para 6 of the written statement of defendant No.2?11

3. The appellant in support of the Suit examined P.W.1 Kaus P. Agha, one of the partners of the appellants, Ex.10, who produced the Insurance Policies and the relevant correspondence. The correspondence was taken on record subject to Respondent No.1's objection as to the proof. The learned Single Judge after hearing the learned counsel for the appellants and Respondent No.1 decreed the suit against Respondent No. 2 and dismissed the suit against Respondent No.l. The‑appellants being aggrieved by the latter portion of the judgment/decree have filed the present High Court Appeal.

4. In support of the above appeal, Mr. lbadat Yar Khan, learned counsel for the appellants has urged as follows: (i) That the learned Single Judge having concluded that the loss could occur on account of one of the four reasons mentioned in para 21 of the judgment and having concluded that Respondent No.1 would be liable in cases of possibilities of (c) or (d) erred in not decreeing the suit on the ground that from the evidence on record it cannot be said that possibilities (c) or (d) was more propable than (a) or (b). (ii) That in case of a claim under an Insurance Policy if the evidence on record is equally consistent with the liability and non‑liability of the insurer the Court should opt for the former. On the other hand Mr. S. Tariq Hussain, learned counsel for Respondent No.1 has contended as under: (i) That the appellants had not proved even the factum of theft. (ii) That under the terms of the Insurance Policy the liability of Respondent No.1 was not simpliciter in respect of a theft but on account of loss or damage caused by theft following upon or occasioned by an actual forcible and violent entry of the premises namely godown on the ground floor of the building mentioned in the Insurance Policy. (iii) That there was breach of the conditions of the Insurance Policy on the Part of the appellants and, therefore, their claim was not maintainable. Mr. lbadat Yar Khan learned counsel for the appellants in support of his above two submissions has referred to the following observation of the learned Single Judge contained in paras 21 and 24 of the judgment: "21 ................... I find that the loss occurred on account of one of the following things happening:‑ (a)Wrong or excess delivery by the Bank's staff; (b) At or around the time the fire in the godown had taken place the staff posted by the Bank at the godown removed the goods which led to the shortage; (c)Theft by a member of the staff, for instance the chowkidar posted at the godown by the Bank, by using a skeleton key or some other instrument for opening the lock .of the godown; (d)Theft by an outsider using a skeleton key or some other instrument and opening the lock of the godown. 124 . . . . . . . .. . . . In my view it could be any one of the four possibilities stated there. If possibility (a) or (b) in para 21 of this judgment was what had actually happened, plaintiff cannot recover against defendant No.1 but defendant No.1 would be liable in case of possibility (c) or(d). However, as observed, from the evidence on record it cannot be said that possibility (c) or (d) was more probable than (a) or (b). This takes us to the question of burden of proof. In the present case the burden of proving their case was obviously on the plaintiff who have proved their case against the Bank but as regards their case against defendant No.1 the evidence on record is equally consistent with the liability of defendant No.1 or with their non‑liability. The general principle of the law of evidence in equally balanced cases is that onus of proof is not discharged and the party on whom lies the burden of proof fails. Plaintiff in the present case would, therefore, fail against defendant No.1 in view of this general principle of law applicable to equally balanced cases.' He has also referred to the following judgments: (i) Levy v. Assicurazioni Generali (1940 Vol 3), The All England law Reports, page 427, in which the facts were that the appellant got insured against fire a stock of merchandise at Jaffa with the respondent company on the terms, inter alia, that the insurance was not to cover loss or damage occasioned by, contributed to, or arising out of, a number of specified occurrences and that any loss or damage happening during the existence of abnormal condition occasioned by, contributed to, or arising out of, such occurrence should be deemed to be loss or damage not covered by the insurance except to the extent that the appellant should prove that such loss or damage happened independently of the existence of such abnormal conditions. It was a further term of the policy that in any action where the respondent company alleged that by reason of the above conditions, the loss or damage was not covered, the onus of proving the contrary was to be upon the appellant. The insured merchandise was destroyed by fire. The appellant's claim was resisted and it was averred by the Insurance Company that of the specified occurrences enumerated in the policy the only one in existence at the date of the fire was that of 'civil commotion'. The appellant filed a suit for recovery of ‑L 1,900 in the District Court Jaffa. The District Court decreed the suit by holding that Respondent Company failed to prove that abnormal conditions existed when the aforesaid loss was occasioned. Upon an appeal by the Insurance Company, Supreme Court of Palestine reversed the judgment of the District Judge and dismissed the suit of the appellant, who went in appeal before the Privy Council, which was allowed and the judgment of the District Judge was restored. The Privy Council while allowing the appeal held that in view of express terms in the Insurance Policy as to the onus of proof of the abnormal conditions the burden was on the insured and not on the insurance company as was held by the District Court. It was also held that the District Court was in error in holding that the onus of proving that one or other of the occurrences specified in condition 6 (2) existed at the time of the fire was on the respondent Company as it was placed upon the appellant by the express terms of their contract. It was further held that there can be no doubt that as a matter of agreement between parties, the onus of proof of any particular fact or of its non‑existence may be placed on either party in accordance with the agreement made between them. Their Lordships were satisfied that on the facts proved there was no civil commotion existence at the date when the fire occurred and, therefore, the respondent insurance company was liable to pay the claim. It was further observed that the appellant' was not obliged to show that no abnormal condition existed at that time. He had only to show that no one of the occurrences specified in the policy existence on the date of the loss. Their Lordships also defined the tern 'civil commotion' as a state between riot and civil war an insurrection of the people for general purposes, but an organised conspiracy to commit criminal acts was held not to amount commotion. ' (ii) Bond Air Services LD. v. Hill ( 1955 Vol 2 Law Reports, Q.B. Division page 417). In the above case the facts were that an Arbitrator stated a point of law arising in the course of reference for the opinion of the Court in relation to Lloydls aircraft policy under which total loss of tile plane was claimed. The accident had taken place on a flight from Spain to England quite near to the aerodrome. It may be observed that condition. it 7 provided 'The insured an all persons in his employment or for whom he is responsible shall duly observe the statutory, orders regulations and directions relating to air navigation for the time being in force., The under writers had sought to put the claimants to the proof that this condition was fulfilled and also alleged three breaches of the condition of the Policy 01‑11 the part of the insurance. Lord Goddard CJ while dealing g with the above point held that it is always for an insurer to prove an exception, so it was for him to prove the breach of a condition which would relieve hit., from liability in respect of particular loss; accordingly, the onus was on the under writer to prove, if they could, that the claimants had failed to comply y with the conditions. His Lordship also observed that: 'What I think they decided was that, where on the pleadings the issue was whether there was an existing policy. The plaintiff had to prove it, and prove the performance of conditions s necessary to establish it. But I cannot find that these cases s have ever been regarded, either in any judgment or in the E opinion of eminent text writers, as throwing doubt on what I I think is axiomatic in insurance law, that, as it is always for an insurer to prove an exception, so it is for him to prove e the breach of a condition which would relieve him from liability in respect of a particular loss., (iii) Slattery v. Mance, (1962) 1 Lloyd's List Law Reports, , Queen's Bench Division, page 60, in which the plaintiff got i his vessel insured inter alia against fire. The vessel was s destroyed by fire The plaintiff brought an action for recovery y of E 4500. The defendant a Lloyd's underwriter denied that liability on the ground inter alia, that although the vessel ~l was lost by fire, tile plaintiff had willfully caused or connived d at the destruction of the vessel . Mr. Justice Salmon while E summing up the case for Jury observed as follows: 'In my judgment, once it is shown that the loss has been n caused by fire, the plaintiff has made out a prima facie case e and the onus is upon the defendant to show on a balance of f probabilities that the fire was caused or connived at by the e plaintiff. Accordingly, if at the end of the day the Jury come e to the conclusion that the loss is equally consistent with arson i as it is with an accidental fire, the onus being on the defendant, the plaintiff would win on that issue'. On the other hand Mr. Tariq Hussain, learned counsel for Respondent No.1 has referred to Exs.10/9, 10/14, 10/15, 10/16, 10118, 10/23, 10/24 and 10/25 to urge that even the factum of theft has not been proved as in some of the above letters the appellants Wad complained the Respondent No.2 that they were effecting delivery of the cases without obtaining appellants' delivery orders against the general arrangement and that there was confusion as to the number of cases of the playing cards. He has particularly invited our attention to Respondent No.2s letter dated 22‑2‑1968 addressed to the appellants Exh. 10/31 whereby the former requested the latter to forward the detail of the deliveries of the cases of the playing cards as their Register was missing. We have enquired from Mr.lbadat Yar Khan as to the evidence on record for proving the factum of theft, leaving apart the question whether the same was occasioned by an actual forcible and violent entry of the premises, his reply was that Ex. 10/32 i.e. Respondent No. 2's letter dated 24‑2‑1968 and Respondent No.21s written statement are sufficient to discharge the above burden. We have already reproduced hereinabove the last but one pars of the above Exh. 10/32 in which there is no definite statement for the shortage of the cases due to theft and burglary. In the above para the words employed are "it appears that the shortage are due to theft and burglary in the godown in question". Even the above statement has not been proved as the author of the above letter has not been examined. The above letter was taken on record subject to Respondent No.11s objection as to the proof. However, Mr. lbadat Yar Khan has submitted that the above letter has been proved through P.W. 1 Kaus P. Agha, who was well‑conversant with the signature of the writer of the said letter and, therefore, in the absence of availability of the writer the above witness could prove the above letter. In our view, even if we were to hold that the above P.W. 1, 1 Kaus P. Agha was competent to prove the signature in the above Ex.10/32, this would not amount to proving of the contents of the above letter. We may point out that there is a marked distinction between the factum of proving of signature of the writer on a document A and proving the correctness of the contents. The latter cannot be proved without examining the author of the document or in his ,absence on account of death or for any other admissible reason by a person who was associated with the execution of the document and was ‑conversant with tile correctness of the contents‑. In the present case, in our view, the correctness of the contents of Ex. 10/32 has not been prove. We are also inclined 'to hold that the Respondent No.21s written statement cannot be treated as a piece of evidence for the purpose of proving she factum of theft. We may again point out, as per insurance Policy Exh.10/19 and as per averments contained in para 4 of the plaint, the aforesaid Insurance Policy was in favour of the appellants and ‑Respondent No.2 being mortgagee of the goods and, therefore, a written statement ever without its formal proof through a witness cannot be treated or equated with 5 piece op documentary evidence. Since we have held that even the factum 'of theft has not been proved, in our view the four possible reasons for the shortage referred to in para 21 of the judgment and quoted hereinabove have become academic. The cases relied upon by Mr. lbadat Yar Khan in our view are not applicable to the facts of the present case. However it will suffice to observe that once an insured proves the factum that the loss is occasioned on account of risk covered by the Insurance Policy, the burden is shifted on the Insurance Company to prove that the case is covered by an exception provided in the Insurance Policy or that there was a breach of condition on the part of the insured as to disentitle him to lodge a claim under the Insurance Policy. It may also be observed that the question of burden of proof depends on the facts of each case. There may be cases in which the burden of proof on a plaintiff may be very light and once he discharges the burden, the burden is shifted on the defendant. For example in a case where a patient is operated upon for an ordinary ailment which generally does not involve any risk of life but during the operation he dies. If the legal representatives bring a suit for damages for negligence, in such a case the burden on the plaintiff may be very light as they were not present in the operation theatre when the death had occurred and the best person who can explain the reason is the doctor and his associates, who carried out the operation. Similarly, if an insured files a suit for recovery of the loss occasioned on account of fire against the Insurance Company, the burden of proof that in fact the loss had occurred on account of fire would be on the insured and in case the Insurance Company wants to defeat the above claim on the ground that the fire was caused by the insured himself, the burden of proof as to the latter averment would be on the Insurance Company. However, the general principle of law of evidence is that if the onus of proof is not discharged the party on whom it lies fails. In view of our above finding, we are inclined to hold that it is not necessary to go into the question as to what constitutes actual forcible and violent entry for commission of a theft. Mr. Tariq Hussain has referred to page 2 of the FIR lodged on 27‑2‑1968 at 13.00 hours at Saddar Police Station Dacca about the alleged theft in which it has been stated that the cases of playing cards were stored in the southern two rooms of the first floor, in order to urge that this was a breach of the terms of the Insurance Policy as according to the latter the goods are to be stored on the ground floor and the same could not have been removed to the first floor. He has also referred to the other conditions of the Insurance Policy which according to him have been breached. He has also referred to certain clauses to indicate that heavy burden of proof was on the appellants. We are ' not inclined to go into the above question, inter alia, for the reason that there was no specific plea raised to the effect that the goods were stored on the first floor instead of ground floor and that constituted a breach of the conditions of the Insurance Policy. He has also referred to the case to Regina Fur Company Ltd. v. Bossom 1958 Vol 2, Lloyd's List Law Reports, page 425, in which the Court of Appeal while dealing with a claim arising out of theft of furs, held that the burden of proof was on the plaintiff to prove that the loss of goods was due to a risk insured by the policy and, therefore, the judgment of the learned single Judge dismissing the suit was justified.

5. For the fore said reason, the appeal has no merits and, therefore, it is dismissed but there will be no order as to costs. M. B. A. /F‑36/ K Appeal dismissed.