GOLD STAR LINE LTD Vs. BAFNA BROTHERS HEREIN

JUDGEMENT

(1.) IT would have been more in order had these appeals been heard by the same bench which heard o. s. a. nos. 181 and 182 of 1985 filed on behalf of the port trust against the impugned judgment, but these appeals by the first defendant/ carrier, have been listed after the said two appeals have been heard by another bench (mishra, j. and padmini jesudurai, j. ). we are informed that judgment in the said two appeals has not yet been delivered.

(2.) THE two plaintiffs, viz. the consignee represented by their power of attorney agent and national insurance company limited have filed the suits c. s. nos. 209 and 210 of 1980, alleging inter alia that the first defendant/carrier, or the ship known as m/s. gold star line limited, incorporated in hongkong, carried consignments of a merchant at bangko to the first plaintiff, they being 4,000 bags of greengram and another 2,000 bags of greengram, to the same destination, madras. the consignments were insured with the second plaintiff national insurance company limited. the vessel'm. v. gold leaf carrying the two consignments arrived at madras on 26. 8. 1979. the landed cargo was not stacked markwise and the marks were also missing on number of bags and, therefore, the consignment could not be delivered in full. the 1st plaintiff in c. s. no. 209 of 1980 was given delivery of 2,207 out of 4,000 bags, leaving a shortage of 1,793 bags. the 1st plaintiff in c. s. no. 210 of 1980 was given delivery of 1,340 out of 2,000 bags, leaving a shortage of 660 bags.

(3.) THE Ship Master at Madras Port Trust was examined as d. W. 2 and he stated that the manifested quantity that arrived through the vessel on 26. 8. 1979 was 52,100 bags out of which the second defendant had delivered a total quantity of 49,647 bags. He stated that the consignor used only one single gunny bag and that some of the bags arrived in torn condition. Referring to Ex. D-9, he stated that the goods were received in mixed up condition'cover torn and contents falling out'. Goods marked'various' also landed. He stated that 3,797 bags under Various'mark and 1,898 bags under'nil'mark were annotated as'cover torn and contents falling out. According to him, the steamer agent stacked it in a mixed up condition and was liable for it and the agent of the first defendant was also a parly to the tally sheet which recites that the goods landed in a mixed up and damaged condition with cover torn, etc. THE carrier took the goods from the wharf to the shed by their own transport utilising their own men and labour for unloading etc. Because the steamer agent stacked it in a mixed up condition, the first plaintiff could not identify the goods and, therefore, according to D. W. 2 the goods were not removed.