' SHAHID ANWAR BAJWA, J.---The plaintiff/respondent filed suit for recovery of Rs,27,231 against defendants/ appellant in March, 2002. It was pleaded in the plaint that consignment of 249.8828 Metric Ton of Crude Coconut Oil in bulk was imported by Associated Industries Limited for delivery at the port of Karachi on the basis of C and F Price. Defendant/plaintiff No,1 undertook to carry consignment on board their vessel "Global Themis" and deliver the same to the port of Karachi in good order and condition after actually receiving said consignment on board their vessel. The said consignment was insured with the plaintiff/respondent under Marine Insurance Company dated 17-2-2001. Defendant No,2/appellant No,2 being local agent of defendant No,1/ appellant No,1 was stated in the plaint to be liable for all claim for shortage/damage. Said vessel reached port of Karachi on 18-3-2001 and discharged the cargo. Before the Cargo was discharged a Surveyor was deputed to survey and supervise discharge of consignment into the land tanks. According to the report of Surveyors quantity of 248.406 metric ton was received in the land tanks, thus there was a shortage of 1.477 metric tons. The importer suffered loss to which he lodged claim with the plaintiff/respondent. Having been so subrogated, plaintiff therefore lodged claim with defendant No,2. The defendant acknowledged receipt of claim of the plaintiff but failed to settle it.
Consequently suit was filed for decree of Rs,27, 231 with interest thereon.
2. Written statement was filed on behalf of respondents Nos.1 and 2. It was pleased that the charterer of the vessel has not been impleaded as a party. It was further pleaded that Insurance policy and letter of subrogation have been illegally issued. It was denied that consignment was delivered to defendant No,1 in full and in good order and condition by the shipper at the port of shipment. It was further submitted that it was co-mingled cargo. The trial Court framed the following issues:-
(1) "Whether the defendants are liable to pay the suit amount to the plaintiff ?
(2) What should the decree be ?"
' And thereafter decreed suit vide judgment dated 18-3-2006 and decree of the same date.
3. Learned counsel for the appellant made the following submissions:--
(1) That insurance policy was issued on 17-4-2001 whereas the vessel reached Karachi on 18-3- 2001. Thus it is admitted fact that premium was not paid till the vessel, after discharging the consignment had sailed away. Learned counsel relied upon section 3-C(4) of the Insurance Act and also on Trans Ocean Asia v. Alpha Insurance Company Ltd., Karachi 1981 CLC 1028.
(2) That consignee had already filed suit bearing No,663 of 2001 in the Court of Senior Civil Judge Karachi West and the suit had been filed by the plaintiff after expiry of 137 days of the suit filed by the consignee. Nobody has right to be indemnified twice. In this regard learned counsel relied upon Hunting Clan Air Transport Ltd. v. Pakistan International Airlines Corporation PLD 1965 Kar.
219.
(3) As per bill of lading, the loaded quantity at the port of shipment was 5482.228 metric tons against bill of lading quantity of 5499.8828 metric tons. As such there was a short shipment of 17.65 metric tons. This being .32% the carrier is not liable for any short shipment. Learned counsel relied upon Pakistan National Shipping Corporation v. Adamjee Insurance Company Ltd. 1993 M LD 1841.
(4) Appellant No,1 had entered into contract of carriage with shipper i,e, Kouk Oils and Grains (Pvt.), Ltd. As such bill of lading is not a contract of Affreightment/carriage. It is merely a receipt. Learned counsel relied upon Messrs Arshad Corporation (Pvt.) Ltd. v. The Ship Maersk Asfro and 2 others PLD 1988 Kar.515 and Jaffer Brothers (Pvt.) Ltd. v. M.V. Eurobulker Adjourned to a date, in office., S.B.L.R.
2002 Sindh 495.
(5) That the consignment was received and discharged in co-mingled shape and charterer has not been made a party. Responsibility is of the chartrer and not of the carrier. He relied upon Messrs Sattar Cotton Ginning Factory Limited v. East-West Shipping and Trading Company Limited and for others 1991 CLC 670.
(6) That plaint has been signed by a person not authorized by the Board of Directors. He relied upon Khan Iftikhar Hussain Khan of Mamdot (represented by six Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550, Dr. S.M. Rab v. National Refinery Ltd., PLD 2005 Kar. 478, Messrs Pakistan Oil Mills (Pvt.) Ltd. v. Messrs Peter Shipping Co. Ltd. And others 2005 M LD 1745.
(7) Plaintiff in his cross-examination admitted that they paid Rs,4, 18,658 to the consignee on account of loss. It was also admitted that in the letter of subrogation there was no mention of shortage of 1.477 metric tons. It was voluntarily stated in cross-examination that it was stated in the claim bill. He also referred to the surveyor's examination-in-chief, wherein he stated that it was co- mingled consignment and since there is shortage it was distributed on pro rata basis amongst all the consignees. He also stated in his examination-in-chief that protest was lodged against short delivery. He referred to the survey report wherein it was stated that arrived quantity was 5479.630 metric tons and bill of lading quantity was 5499.882 metric tons.
4. Learned counsel for the respondent submitted that even after a policy has been issued premium can be paid and policy on the basis of such premium would be valid. He referred to Trans Ocean Asia v. Alpha Insurance Company Ltd. Karachi 1981 CLC 1028. Bill of lading is credible document. If quantity stated in the bill of lading is protested, is has no bearing whatsoever.
5. While exercising his right of reply, learned counsel for the appellant relied upon Eastern Federal Union Insurance Company Limited v. American President Lines limited and another PLD 1992 SC 291 and submitted that if bill of lading is within a notation quantity stated in the bill of lading cannot be treated as correct quantity. He referred to bill of lading wherein it was stated that measurement, weight, gauge, quality, nature, value and condition of the cargo are based bn information given by the shipper and are unknown to the vessel and the Master.
6. I have heard the learned counsel and have gone through the record as well as the case-law cited the learned counsel.
7. First contention of the learned counsel is that Insurance Policy was issued on 17-4-2001, whereas the vessel reached Karachi on 18-3-2001. Therefore, the learned counsel submitted that premium was not paid till the vessel after discharging the consignment had sailed away. Learned counsel relied upon Trans Ocean Asia's case. In that case provisions of subsection (4) of section 3-C of the Insurance Act, 1938 was taken into consideration. The said subsection (4) is reproduced as under:- "(4) No insurer shall assume in Pakistan any risk in respect of general insurance business unless and until the premium payable or such part thereof as may be prescribed has been received by him or has been guaranted to be paid by such person in such manner and within such time as may be prescribed."
8. The Division Bench seized of the matter held as under:- "It is admitted position that open cover No,6506-A dated 1st February, 1967 was issued without the premium being paid or even the usual Bank guarantee for such payment being furnished. It is well established practice which in this country is requirement of law that payment of premium is made a condition precedent of liability under a contract of insurance. Reference has been made to paragraph 464 at page 255 of Halsbury's Laws of England (4th Edition) which reads as under:-- "464. Payment as a condition precedent.-In practice, payment of the premium in advance is usually made a condition precedent to liability, not only in the case of the first premium but also of the renewal premium. The assured, is then precluded from recovering for a loss which happens before the premium is paid unless the circumstances are such that insurers are estopped from denying that they have received payment, or have by their conduct waived the condition. There may for example, be a waiver by an agreement to give credit or by giving of an ante-dated receipt, but there is no waiver where an insurance agent accepts premiums in arrear unless he has authority from the insurers to do SO.
' Reference has also been made to paragraph 661, Chapter 5, section 7 of Mac Gillivray on Insurance Law which reads as under:-- "661. "Held covered".-In an English case a thirty days' cover note had been issued on a proposal for fire insurance, and before its expiration the company intimated to the proposer that a policy would be sent on receipt of the first premium, but that no insurance would be in force until the first premium was paid. The words "held covered" were written the margin of the letter of intimation, but it was held that they referred only to the cover note and that there no completed insurance until the first premium was paid and that the duty to disclose continued up to that time."
' The open cover note mentions as under:-- "No insurer shall assume in Pakistan any risk in respect of any insurance business unless and until the premium is received or is guaranteed to be paid by such person in such manner and within such time as may be prescribed."
' It is reproduction of subsection (4) of section 3-C of the Insurance Act, 1938 inserted by the Insurance (Amendment) Act, 1958 (XXVII of 1958). In view of the afore-said clause in the open cover note since there was no payment of premium -and no guarantee of such payment there was no contract as the precondition remained unfulfilled. Any agreement vilolative of the provisions of afore-said section 3-C of the Insurance Act, would not be enforcible."
9. However, in Messrs S.M. Abdullah and Sons, Karachi v. Messrs Crescent Star Insurance Co. Ltd.
1993 M LD 1239, precisely the same contention was raised and the Division Bench after considering a number of cases from Pakistani as well as Indian jurisdiction held as under:-- "9. The consensus of the case referred to by the learned Judge clearly appears to be that intention of the legislature is to be gathered from the provisions of the statute itself and, if the statute does not provide for rendering of a contract entered into in contravention of breach of any of its provisions void or illegal the same by impliciation cannot become void merely on account of non- observance of certain provisions of the statute. In the present case, reference may be made to Section 102 and 103 of the Insurance Act, 1938 which provide for penalties in case of contravention of any requirement of the said Act. We, therefore, fully agree with the observations made by the learned Single Judge that the object behind section 3C(4) appears to be only to ensure recovery of premium and the same, in our opinion, cannot have the effect of rendering a contract entered into by an insurance company with the insurer null and void. Mr. Gulzar Ahmed has laid much stress on the observations made in the cases reported in PLD 1958 Kar. 56 and AIR 1946 Nagpur 196 but in our opinion, the said cases are distinguishable as has already been observed by a learned Single Judge, in his judgment -impugned before us."
10. Therefore, the first ground of the learned counsel is without any substance.
11. Second ground of attack by the learned counsel that Civil Suit No,663 of 2001 was filed by the Insurance Company in the Court of senior Civil Judge Karachi West. The suit out of which this revision has arisen was filed 137 days after filing of the suit by the consignee. He submitted that nobody has right to be indemnified twice and in this connection he relied upon Pakistan International Airlines Corporation's case. In that case it was held by this Court that applicant cannot be indemnified twice over. However it was held in case that plaintiff was fully compensated, pending suit, by insurer not a party to the suit. The facts are therefore quite distinguishable. In the present case there is no thing on record to establish that the consignee had been fully compensated otherwise.
12. The next contention of the learned counsel was that the bill of lading clearly stated that weight, gauge, quality etc. Are as stated by the seller and are unknown to the vessel and the master.
Learned counsel relied upon Eastern Federal Union Insurance Company Limited v. American President Lines Limited and another PLD 1992 SC 291. In that case consignee had imported 213 bales which were stuffed into two containers and carried on board. It was held that under the Carriage of Goods by Sea Act, 1925 the particulars mentioned in the bill of lading in compliance of section 3 are prima facie evidence against the carrier which is rebuttable. It was further noted in that case that bill of lading was marked with notations, which prima facie established that the containers were stuffed exclusively by shippers. The respondent had proved by cogent evidence that container were discharged at Karachi port with seals intact. The facts in that case are therefore, quite distinguishable. In that case goods were stuffed in the containers which were sealed by the shipper and the sealed container was delivered at Karachi. In the present case the goods is liquid cargo which is pumped into and then is pumped Gut to the land carts. Therefore this case does not help the case of the shipping company. Once goods are received in an unsealed form ii, is for the shippers to satisfy that what he delivered was, what he received. In the present case he received certain quantity of liquid and he was bound to deliver the same quantity of liquid and he failed to do that.
13. Learned counsel relying upon a plethora of case-law argued that since the plaintiff was a company the plaint could not have been filed by unauthorized person. In the plaint in para 15 it was stated as under:-- "15. That Syed Ziauddin Ahmed son of (late) Syed Bashiruddin Ahmed is the Executive Director (finance) who has signed and verified this plaint on oath is fully conversant with the facts and is duly authorized by the chief Executive/Managing Director of the plaintiff. To file the suit and is able to depose the same. The Chief Executive/Managing Director through a General Power of Attorney is empowered to sub-delegate some powers duly approved by a Resolution No,49 dated 4-2-1977 passed by the Board of Directors. Photocopies of the Power of Attorney and Resolution of the Board of Directors are annexed hereto and marked as annexure `G' and `G/1' respectively."
14. Power of Attorney is available on record. It was executed before a Notary Public. With the power of attorney an extract of Resolution of the Board of Directors was also enclosed. In the presence of fully notarized Power of Attorney, burden of proving that such power did not exist, was upon the defendant and in his evidence the defendant has not produced any material to discharge that burden. In fact in his examination-in-chief the present applicant's witness had not said even a single word regarding this Power of Attorney therefore this objection is overruled.
15. As far as, certain factual aspects are concerned, this is a revision application where scope of scrutiny is limited in terms C of parameters prescribed in section 115 of C.P.C. The learned counsel has failed to establish that the Court below has exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of jurisdiction illegally, or with material irregularity. The revision application is, therefore, dismissed. In the peculiar circumstances there shall be no order as to costs.