1982 PLP 1220 (CLC)

The facts of the case as disclosed in the plaint verified on oath and proved by the affidavit of Mr. A. Rauf are that Messrs Karim Industries Ltd. imported a consignment of 355 cartons of Perlon Filament Yarn from Hamburg, West Germany, shipped in good order and condition on board the vessel s. s. Preienfeis under Bill of Lading No.

55. The said vessel belonged to the defendant No. 1 of whom Messrs Hansa Lines the defendant No. 2 are the agents at Karachi. The aforementioned consignment was insured with the plaintiffs under their Marine Policy No. WIA/KM/2234/12/71 in the sum of Rs. 2,00,

000. The above mentioned vessel was due to arrive at Karachi in December, 1971, but as in the meantime war broke out between India and Pakistan, the said vessel discharged its consignment at the port of Djibouti. Subsequently the defendant No. 1 forwarded the consignment by their another vessel s. s. AXENFELS which arrived at Karachi Port on 11‑3‑1972 and discharged the consignment on or about 14‑3‑1972. The said consignment was found to be in damaged condition by the clearing agents, Messrs Karim Agencies, whereupon a joint survey was held by Messrs G. P. Potts and Company, surrveyors appointed by defendant No. 1 and Messrs Shaukat Ali &.Co., surveyors appointed by the Plaintiffs. On the survey thus jointly held, shortage and‑ damage was found in the consignment. As a result of shortage and damage thus found, Messrs Karim Industries Ltd. who suffered a loss of Rs. 50,236.85 made a claim for the said amount upon the defendants and also lodged their claim for the said amount with the plaintiffs under the aforementioned policy. The defendants failed to settle the said claim of Messrs Karim Industries Ltd. However the plaintiffs in discharge of their contractual obligation under the said policy had to settle, the claim by paying the aforestated sum of Rs. 50;236.85, under a letter of subrogation.

3. The plaintiffs having thus become subrogated in respect of the loss referred above, claimed the said amount (Rs. 50,236.85) paid by them to Messrs Karim Industries from the defendants who according to the plaintiffs are liable to pay the same under the contract of freightment. They served a notice on the defendants but without any response. This led to the filing of the present suit on 7‑8‑1974.

4. The Plaintiffs in support of the above pleas produced following documents alongwith the affidavit of proof which was allowed to be filed: (1) Insurance policy dated 3‑12‑1971 Annexure (A). (2) Marine Survey Report dated 25‑I1‑72 Annexure (B). (3) Letter of Subrogation dated 4‑12‑72 Annexure C, executed and delivered by Messrs Karim Industries Limited to the Plaintiff. (4) Marine Claim Voucher dated 4‑12‑1977 whereby Messrs Karim Industries Ltd: acknowledged receipt of Rs. 52,236.85 in respect of the claim for loss and damage to the abovementioned consignment on insurance policy referred to above for the consignment shipped per s. s. FRIENFELS/AXENFELS from Hamburg to Karachi, Annexure (D).

5. On the statement made on oath in the affidavit filed in proof of the claim made, corroborated by facts pleaded on solemn affirmation in the plaint, I am satisfied that the Plaintiffs have proved their case for recover of the amount claimed in the suit against the defendant No.

1. As regards the claim against the defendant No. 2 the plaintiffs have not produced declaration or document to establish that the defendants No. 2 are in any manner liable to pay any amount either to Messrs Karim Industries Ltd. or to the plaintiffs pursuant to the payment made by the plaintiffs to Messrs Karim Industries Ltd. as mentioned above. For the reasons stated above the suit is decreed against the defendant No. 1 as prayed while the suit against defendant No. 2 is dismissed with no order as to costs. K. M. A. Petition dismissed.