R CHAGANLAL Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) THE plaintiffs are the appellants. The suit was filed for recovery of a sum of Rs. 37,670/- towards damages and short delivery of the goods covered by the Bill of Lading No. 3 dated 16. 10. 1988. The suit was dismissed and therefore, this appeal has been filed.

(2.) THE averments of the plaint in brief are as follows:

(3.) THE first defendant, through its agent, filed a written statement stating that the suit is barred for non-joinder of owners of the Vessel. According to them, the seals of the container discharged in the custody of the second defendant were intact at the time of its discharge; that this defendant arranged for the continuous discharge survey by a reputed firm of independant surveyors and therefore, the report would indicate that the seals of the containers were intact. The tally sheet prepared by the second defendant at the time of de-stuffing the cargo from the container would also show that the annotation of the pallets was only superficial in nature. It is in these circumstances that when the first plaintiff made a request for survey, this defendant refused to conduct the survey. Without prejudice to its rights, this defendant also stated that the loss, if any, would have occurred only when the goods were in the custody of the second defendant and therefore, the suit should be dismissed as against the first defendant.