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TMI Blog2014 (9) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent. - Decided in favor of appellant. - A.S. No. 1183 of 1994 - - - Dated:- 17-9-2013 - R.S. Ramanathan, J. Shri K. Bijaisundar, for the Appellant. Shri S.K. Krishnamurthy, for the Respondent. JUDGMENT The first defendant in O.S. No. 6272 of 1984, on the file of III Assistant Judge, City Civil Court, Chennai, is the appellant herein. 2. The first respondent/plaintiff filed the above suit for recovery of ₹ 56,224/- from the appellant/first defendant and the second respondent/second defendant, for the loss caused due to the short delivery of the goods. 3. The Trial Court, by its judgment, dated 24-3-1987 decreed the suit. Aggrieved by the same, the present was filed. 4. The case of the plaintiff/first respondent, is as follows :- (i) On 29-3-1983, 4,16,810 metric ton of Iron were shipped through the Vessel, named Vishva Pankaj , owned by the appellant/first defendant from Antwerp Port to the Madras Port Trust. The appellant/first defendant also issued a Bill of lading, bearing No. 501, dated 29-3-1983, acknowledging the entrustment of goods in good condition, undertaking to deliver the same at Madras Port Trust. The said consignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Contract Act. (ii) It is further stated in the written stated that the Vessel arrived at the Port of Madras, on 2-5-1983 and discharged the cargo in the same condition and order, as was entrusted at the Port of Shipment into the custody of the Madras Port Trust, and no notice, as contemplated under Article 3, Rule 6 of the Carriage of Sea Goods Act was served on this first defendant and the first defendant was not liable for the alleged short landing of the cargo and the cargo was lying in the custody of Madras Port Trust, alter its discharge. Therefore, the loss, if any, must have occurred only during its stay at Madras Port Trust, and hence, the Madras Port Trust is necessary party to be impleaded in the suit. (iii) It is also stated in the written statement that the weighment of the goods was done long after discharging the goods from the Vessel and that did not disclose the actual quantity discharged from the Ship. Therefore, weighment done in the Port weigh bridge is not binding on the first defendant/appellant and the certificate issued by the Madras Port Trust on 1-6-1983, is not binding on the first defendant and hence, there was no negligence on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff that short landing of cargo was not due to any theft or pilferage at the Madras Port. As per the weighment certificate issued by the Madras Port Trust, only 3,99,240 kgs of iron was delivered and as per Ex.A.2, Bill of lading, 4,16,810 metric ton of Iron was entrusted with the Vessel. As per the Indian Customs Act, 1962, the person in charge of the Vessel has to entrust the manifest of the goods, which are to be discharged from the Vessel to the Customs Officer and that copy of the manifest was available with the appellant/first defendant and that would prove the exact quantity of cargo discharged from the Vessel, but, the same was not produced by the appellant. Therefore, the appellant/first defendant has to pay the amount for the loss caused to the plaintiff. Aggrieved by the same, the present appeal was filed. 10. The learned counsel appearing for the appellant submitted that the Trial Court, without properly appreciating Exs.A.2 and A8, erred in holding that the appellant is liable to pay the value of the goods, which were short delivered, as per the Bill of lading. The learned counsel submitted that as per Ex.A2-Bill of lading, the cargo is said to contain M.S. Re-Rolla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, as alleged by the first respondent? 16. It is the case of the first respondent that as per the Bill of lading, Ex.A.2, 416.810 metric ton of iron scraps were entrusted with the appellant s Carrier for delivery at Madras Port Trust and as per Ex.A4, viz., the certificate issued by the Madras Port Trust, dated 1-6-1983 the delivered goods weighed only 3,99,240 metric ton and therefore, there was a shortage of 17.570 metric ton and the value of the goods was ₹ 56,224/- and the appellant and the second respondent are liable to indemnify the loss caused to the first respondent. 17. It is seen from Ex.A.2-Bill of lading, wherein, it has been clearly stated that the consignment is said to contain M.S. Re-Rollable Scraps, and it is said to weigh 4,16,810 metric ton. The contention of the appellant is that the consignment was not weighed at the time of entrustment of goods with the appellant, and the weight mentioned in the Bill of lading, was the declaration given by the consignor and the cargo was not actually weighed by the appellant. Therefore, it cannot be contended that as per Ex.A2, the appellant admitted the entrustment of 4,16,810 metric ton of M.S. Re-Rollable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, only list of cargo, which are to be discharged has to be given to the Customs Officer and as the Bill of lading only contains estimated weight, as given by the consignor, even assuming that the list, which was given to the Customs Officer contains the same weighment, on that ground, it cannot be held that the appellant was not responsible for the shortage. 22. According to me, having regard to the admission made by the first respondent in Ex.A8, that the carrier delivered the cargo, entrusted with it, and the shortage of goods occurred, due to theft or pilferage, when the goods were lying in the Madras Port Trust, the appellant cannot be held responsible for the shortage of goods. Hence, the point for consideration is answered in favour of the appellant and I hold that the first respondent failed to prove the exact quantity of the cargo sent by the consignor, or, in other words, the correct weight of the cargo sent by the consignor, and having admitted that the entire cargo was discharged and the loss was due to the theft or pilferage at the Madras Port Trust, after the cargo was discharged, as per Ex.A8, the appellant cannot be made liable for the loss caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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