P L D 1976 Karachi 238 (PLP)

(1) Whether the defendant No. 1 in the ordinary course of their business and in their capacity as Statutory Bailees took proper care of the goods in question ? (2) Whether the defendant No. 1 took appropriate and timely steps and carried out their obligations, responsibilities anal/or duties properly and effectively. If yes, what is its effect? (3) Whether the goods in question were received by the defendant No. 1 as badly stained and ship's defective under qualifying remarks? If yes, what is its effect? (4) Whether the fire was accidental and beyond the control of the defendant No.

1. If yes, what is its effect ? (5) Whether the plaintiffs have right to sue? (6) Whether any rolls of carpet were damaged while in the custody of defendant No. 2 ? (7) What amount, if any, are the plaintiff entitled to recover and from which of the defendants?

7. Eight witnesses were examined on behalf of the plaintiff on one or other factual aspect of the case. They were Muhammad Sadiq, Abdullah Hamid, Muhammad Shabir Ghafoor Victor, Kh. Moinuddin, Barkat Ali, Siraj Ahmed and Joseph Lobo. The documents were proved through then which included, in particular, the Survey Report Exh. 8/1, the Fire Report Exh. 12/1 and the Receipt for the goods Exh. 14/1. One witness was examined on behalf of the Karachi Port Trust, namely, Mohd. Mahmood Siddiqui (D. W. 1), a Traffic Officer, who was on duty at the relevant time. The Shipping Company examined Muhammad Ikramuddin (P. W. 2), a Superintendent of Sind Lighter-age Company, but his evidence is immaterial to the dispute in suit.

8. I have considered the evidence and have heard counsel. My findings on the issues are as follows;--

9. Issues Nos. 1, 2 and 4.-These issues will be discussed together...There is no dispute that sections 151 and 152, Contract Act. 1872, apply to a statutory bailee, like the Karachi Port Trust in the present case. Section 151 of the said Act lays down the measure of care enjoined upon a bailee. It states that; "In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed." Section 152 states that if the bailee has taken the amount of care described in section 151, he is not responsible for the loss, destruction or deterioration of the thing bailed.

10. These issues as worded, appear to cast the burden of proof on the Karachi Port Trust of satisfying the Court that it had taken proper care of the goods in question and properly discharged its duty and responsi bility as statutory bailee of the goods. It would also appear that issue No. 4 throws the burden of proof on the Karachi Port Trust to show that the fire was accidental and beyond its control. This is also the submission of Mr. Pishori, learned counsel for the plaintiff. This, however, in not a correct statement of the law as observed by their Lordships of the Privy Council in Dwarka Nath Rai Mohan Chzudhuri and another v. Rivers Steam Navigation Co. Ltd. (AIR 1917PC173). In that case, some jute goods which were carried in a flat belonging to a shipping company ware burnt in a fire which broke out in an adjoining flat which was moored to the same buoys in the river. In an action claiming loss, the trial Judge had placed the burden of proof on the bailee, the shipping company to satisfy him that it had taken such care of the goods as was enjoined on a bailee under section 151, Contract Act. Their Lordships stated that in their view, this was not a correct statement of law. They observed (p 175): "It is true that under the Evidence Act of 1872, section 106, `whey any fact is especially within the knowledge of any person, the burden of proving that fact is on him' ; and it was therefore right that the defendant-Company should call the material witnesses who were on the spot, as it seems to have done. But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or (expressing it otherwise) the negligence, of the servants of the defendant-Company. It may be for the Company to lay the materials before the Court but it remains for the plaintiffs to satisfy the Court that the true inference from these materials is that the servants of the defendant -Company have not shown due care, skill and nerve."

11. While following the above-quoted principle of law laid down in' Dwarka Nath's case, its reasoning was discussed and explained in cases decided by the Lahore High Court in Federation of Pakistan v. Shaikh Fazal Karim (PL D 1954 Lah. 245), Federation of Pakistan v. Ehsan Elahi (P L D 1955 Lah. 303) and The Federation of Pakistan v. Munshi Muhammad Ismail (P L D 1956 Lah.,222). They laid down that it is the initial duty of the bailee to prove what steps he had taken in discharging the duty enjoined upon him by section 151, Contract Act, by placing all the material facts before the Court and calling material witnesses who were on the spot. This was also incumbent on him in view of section 106 of the Evidence Act. It is then the duty of the plaintiff to satisfy the Court by drawing inference from such materials or by independent evidence that the loss of the goods was a result of lack of due diligence or negligence on the part of the bailee. Further that this position is clarified if the issue with regard to the liability of the bailee is framed as a composite issue made up of the two following parts : (a) What did the defendant do in order to discharge its liability as bailee? (b) Was loss of goods the result of lack of due diligence on the part of defendant? These cases were also followed and applied in Pakistan through The General Manager, Pakistan Western Railway, Lahore v. Messrs Ghulam Mahbub Muhammad Vmar (P L D 1971 Kar. 259) and in Province of West Pakistan through The Vice-Chairman, West Pakistan Railway Headquarters, Lahore v. Ch. Muhammad Ibrahim Muhammad Ishaque (Firm) (P L D 1972 Quetta 58). In other words, the onus of placing all the materials in his possession or knowledge is on the bailee, while the onus of establishing negligence is on the plaintiff: This dis tinction as observed by Mookerjee, J. in Calcutta Credit Corporation Ltd.. and another v. His Loyal Highness Prince Peter of Greece and others (A I R 1964 Cal. 374) at p. 384, para. 79 appears to be of very little practical significance except in rare cases where, in spite of all the relevant materials placed before the Court, no inference of negligence or absence of it can be definitely inferred.

12. The evidence with regard to the outbreak of the fire is furnished by Siraj Ahmed P. W. 7 and Muhammad Mahmood Siddiqui D. W.

1. The former stated in his evidence that he was incharge of the main fire station and was on duty at the relevant time. The station was at a distance of 1 miles from the shed in Juna Bunder while the fire appliances were 50 yards from the place of fire. He produced his fire repast EXh. 21/1 dated 4-3-1968 in which he had stated that on receiving a telephone message from leading fitter Samiullah at 15-10 hours on 2-3-1968 that a fire had broken out in shed No. 3 Juna Bunder, he along with other staff rushed with two fire engines and within 15 minutes brought the fire under control and by 15-45 p.m. had completely extinguished it. Muhammad Mahmood Siddiqui D. W. 1 who was examined by the Karachi Port Trust was the Traffic Officer on duty at the time the fire broke out. He stated in his evidence he was in his office, which was at a distance of about 100 feet from the shed. He informed the main fire brigade and by the time he reached the spot, he found fire brigades already functioning there. That they took all possible steps to extinguish the fire which was brought under control very shortly, and completely extinguished by 3-55 p. m. That he got separated the burnt goods and those damaged by water. In cross-examination he stated that the cause of fire was not known and denied that there was any congestion in the -shed at Juna Bunder at that time.

13. The submissions of Mr. Pishori are two-fold. His first submission is that the Karachi Port Trust had not placed all the materials before the Court and, in particular, it had not examined leading fitter Samiullah in Court who is alleged to have reported the fire to the fire- station. Further that no member of the Watch and Ward Staff was examined. As far as Samiullah is concerned, the plaintiff's witness Siraj Ahmed P.W. 7 stated in cross-examination that he could not say whether Samiullah was still in service of the Karachi Port Trust. No such question was even put to the Karachi Port Trust witness D. W. I to elicit whether Samiullah was available to give evidence. Therefore, it cannot be inferred that this witness was being suppressed and no adverse inference can be drawn as urged by Mr. Pishori. Again, no suggestion was even put to the Karachi Port Trust witness D. W. I that any member of the watch and ward staff was on duty on the spot nor even whether it is the duty of the watch and ward staff to watch and safeguard cargo lying in the shed against fire. In the circumstances, no adverse inference can again be drawn against the Karachi Port Trust.

14. The next submission urged by Mr. Pishori is that the Karachi Port Trust bad not shown what precise precautionary and protective step were taken respectively, to obviate the risk of fire and to prevent it from spreading after it had broken out. In the first place, the plaintiff has not suggested what were these steps which the Karachi Port Trust ought to have taken which it had failed to take, before an adverse inference of negligence can be drawn against them. There was no cross-examination, nor was even a suggestion put to the Karachi Port Trust Witness D. W. 1, of the existence of any fire buckets or of fire extinguishers in the shed in question, whether they were in working order and whether trained persons were available to work them. Nor whether there were any hydrants in or near the shed. It was not even suggested that it was the duty of the Karachi Port Trust to provide such fire fighting equipment in the shed under any regulation or bye-law and that it had failed to so provide them. It is also in evidence that jute goods are not inherently combustible and it has not been suggested by the plaintiff that the goods had been stacked in any unsafe manner, improperly exposing them to the risk of fire. In fact, the evidence is that the goods were stacked in an "umbrella" shed under asbestos roof with sides open to let air pass freely. Even the gratuitous and voluntary opinion expressed by Siraj Ahmed P. W. 7 in his fire report Exh. 12/1 that fire lane of at least 5 feet should be maintained in stacking cargo in future in order to avoid fire hazard, was not put to the concerned Traffic Officer. This witness also denied that there was any congestion in the shed when the goods in question were landed. As rightly submitted by Mr. Zaheeruddin Khan, learned counsel for the Karachi Port Trust, the trend of the cross-examination of the principal witness for the Karachi Port Trust, D. W. 1 also does not show any suggestion of negligence on the part of the Karachi Port Trust Staff.

15. It is not disputed that the cause of- the fire was not known Therefore, it was not incumbent on the K. P. T. to show that the fir originated from causes beyond its control. In the circumstances, it was enough for the Karachi Port Trust to place before the Court all the materials in its possession and to satisfy the Court that it had taken due care generally of the goods entrusted to its custody as statutory bailee and that it had taken all prompt and reasonable steps in its power to put out the fire and save whatever was possible of the goods. I am not satisfied that the plaintiff has discharged the burden of proving negligence on the part of the Karachi Port Trust. Accordingly, I would decide these issues against the plaintiffs.

16. Issues Nos 3 and 6.

It would appear from Exh. 14/1 dated 2-3-1968 -which is a statutory receipt for the goods which the Karachi Port Trust gave to the ship in respect of the goods received in its custody under section 37 of the Karachi Port Trust Act, 1886, that 5 % of the 55 rolls of carpets were "stained and ship defective." Admittedly, the receipt was prepared from the tally shecta before the goods passed into the custody of the Karachi Port Trust. The survey report Exh. 8/1 also confirms that certain numbers of rolls were "dirt-stained." The Shipping Company also issued clean bills of lading for the rolls of carpets in question in which it acknowledged that they were shipped "in apparent good order an condition." Therefore, the presumption is that the damage to these rolls occurred while the goods were in the custody of Shipping Company during the carriage and, there is no evidence to the contrary from he defendant No.

2. However, the question is what is it effect. The consignee did not apply for a survey of the damaged goods nor is there any evidence in the survey report Exh. 8/1 whether the dirt stains penetrated beyond the outer cover of the rolls and damaged the carpets inside. The value of the alleged damage is also not indicated in the survey report Exh. 8/1. As rightly submitted by Mr. Nomani, learned counsel for the Shipping Company, it would therefore, appear that the estimate of Rs. 4,675 claimed by the plaintiff as representing 5 % damage to the 55 rolls of carp3ts, can but be only a vague estimate. In the absence of material evidence as to value of damaged goods, the claim of the plaintiff cannot be accepted.

17. Issue No. 5.-Not pressed.

18. Issue No. 7.-For the foregoing reasons, the plaintiff's suit is dis. .missed with no order as to costs. Suit dismissed.