LEENA MATHEW Vs. KERALA SHIPPING CORPORATION

JUDGEMENT

(1.) THE plaintiffs are the appellants.

(2.) IN the action instituted under the Fatal Accidents act, the appellants sought to recover from the respondent compensation for the damage, they had suffered by reason of the death of Sri. P. C. Mathew, the husband of the first plaintiff and the father of the second plaintiff, who was the chief steward of the ship, M. V. Kairali, which got lost in the Arabian sea with the crew on board. On the suit being dismissed, the appeal has been filed.

(3.) THE learned counsel for the defendant however, submits, the plaintiffs cannot rely on the evidence tendered before the Chief judicial Magistrate without examining the witnesses afresh in the suit as the evidence tendered before the Chief Judicial Magistrate would not automatically become evidence in the suit. In support of this argument he relied on a decision of the Calcutta High Court in Indian Airlines v. Madhuri Chowdhuri (AIR 1965 Cal. 252 ). THE Calcutta High Court has held thus: "held that on those facts the report must be held properly and duly proved under S. 81 of the Evidence Act. Bult although the report was admissible and bad been duly proved as a fact of this case, yet the evidence tendered before the Court of Enquiry was not necessarily evidence in the suit unless the questions and answers put to the witnesses were put to those witnesses who deposed at the trial and only those portions of that evidence before the Court of enquiry which was tendered before the witness 'concerned would be evidence in the suit and not otherwise. This report, however, did not become evidence under S. 2 and 3 of the Commercial Evidence Act, 1939". (Head Notes) This decision, we are of the view, does not lay down any principle disentitling the appellant to rely on Ext. B1 produced and marked properly on the side of the defendant. It should in this connection be noted that what the Calcutta High Court meant was that the evidence tendered before the enquiry officer cannot be pressed into service by the very party who had produced the report in evidence to establish his case unless the evidence tendered by the witnesses was again put to the witnesses examined in the case. Here the position is different. THE plaintiff against whom the evidence was tendered, relied upon it. It is relevant in the context to consider what is the nature of the investigation conducted by the Chief Judicial Magistrate. A reference in this connection to some of the sections in Part XII of THE shipping Act, is necessary. S. 365 confers on the Chief Judicial Magistrate all the powers of a criminal court to compel the attendance and examination of witnesses and the production of documents. He has the power to arrest witnesses and also to enter ships as provided for under S. 367. Under S. 168 he has the power to commit any person for trial before the proper court whenever in the course of investigation or enquiry it is found that such person involved in the enquiry has committed in India any offence punishable under any law in India. Such persons can even be ordered to be arrested. Similarly be can bind over any person to give evidence at the trial. S. 370 confers on the Chief Judicial magistrate power to cancel or suspend the certificates granted to the roaster, mate or engineer by the Central Government if he, after enquiry, finds that loss of life etc. was caused by the wrongful act or default of such master, mate or engineer. Under S. 371, he has the power to censure the master, mate or engineer. He has also the power (S. 372) to remove a master and appoint a new master provided the conditions stipulated in the section exist. THE Chief judicial Magistrate conducting the investigation therefore is bound to act judicially, and as such, when the Judicial Magistrate, after careful investigation, after taking evidence, comes to the conclusion that it was due to the negligence of the owner, master, mate or engineer that the ship and the crew on board got lost in the voyage, it is futile to contend that the said decision would not affect their rights. It is axiomatic that such decisions of such judicial functionaries would affect the rights of parties against whom such decisions were given, on a full enquiry, after taking all the evidence. THE Bombay High Court while construing S. 249 and allied provisions of the merchant Shipping Act, 1923. corresponding to S. 361 and allied sections of the shipping Act, in Pandyan Insurance Co. Ltd. v. K. J. Khambatta (AIR. 1955 Bombay 241) has taken a similar view. Speaking through Chagla C. J. , the Division Bench has held thus: "when an important tribunal setup under this Act, after careful investigation, after taking evidence, after consulting the assessors, conies to the conclusion that the loss was due to negligence or misconduct of any particular officer or of the shipping company, that decision must affect the rights of the parties against whom the decision is given. It is a very serious thing, for instance, in this very case, if the learned Chief presidency Magistrate were to hold that the Malabar Steamship Company was guilty of putting on the sea an unseowarthy ship or overloading it with cargo. It is suggested that that determination by the learned Chief Presidency Magistrate on a full inquiry, after taking all the evidence, does not affect respondent no. 6 at all? " With respect we agree with the above view. THE decision/finding in Ext. B1 that the mishap was occasioned due to the negligence on the part of the defendant, is therefore binding on the defendant.