PHONIX ENTERPRISE CO LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) DEFENDANTS 2 and 4 have preferred this appeal against the decree passed by the Principal Subordinate Judge, Cuddalore, for a sum of rs. 62,012. 25 with interest thereon at 6% per annum from the date of plaint till the date of realisation. The suit was dismissed as against defendants 1 and 3.

(2.) THE case of the plaintiffs is this: THE first defendant is the owner Disponent and/or carriers and as such is interested in the vessel viz. ,' 'orient glory' '. THE second defendant is the carrier of goods by sea and also the ship owner. THE third defendant is the agent of the second defendant in Japan . THE fourth defendant is the agent of the second defendant in India . A consignment of 1,70,000 bags of urea of a total weight of 85,58,140 kilos was shipped under four bills of lading marked as Exs. A-35 to A-38 at China, Japan, in the vessel' 'orient glory' 'to discharge at the indian ports. THE port of discharge is Cuddalore. THE ship arrived in Indian port and unloading began on 3. 3. 1975. It was concluded on 12. 3. 1975. But, even that date, a provisional claim was made on behalf of the plaintiffs by their agents on the ground that the goods were damaged and there was a short delivery. THE claim was rejected by the fourth defendant for itself and on behalf of the second defendant. It was found on a survey by the plaintiffs that there was a not shortage of 3 Metric Tons. THE cost worked out to Rs. 61,398. 27. and adding 1% thereof as insurance charges, the total loss was Rs. 62,012. 25. Thus, the suit was filed for recovery of the said amount as according to the plaintiffs, all the four defendants are liable to make good the loss.

(3.) ON the other hand, the positive evidence of P. Ws. 1 to 3 is to the effect that hooks were not used by the clearing agents at the time of unloading the goods. In the cross-examination, that aspect has not been adverted to by the defendants' 'counsel. In fact, p. W. 1 has stated that there was no necessity at all for using the hooks. He has asserted the same when a question was put to him on that in the cross-examination. The port officer at Cuddalore had been examined as D. W. I by the defendants and he has conveniently stated that he was not present at the time of unloading. Hence, he cannot say anything about the use of hooks. Hence, the finding of the Court below that at the time of unloading, hooks were not used is acceptable and we confirm the same.