1. K. HOSSAIN, J.--This appeal is by the plaintiff, against the decision of the Subordinate Judge, 1st Court, Chittagong dated 31st August 1959, decreeing the suit in part against defendant Nos, 1 and 2, the Republic of Pakistan and the General Manager, E. B. Railways (as it then was), and passing no decree against defendant No,
3. The Eastern Federal Union Insurance Co. Ltd. though held liable to the plaintiffs for the loss. The appeal is directed against the sums not decreed by the trial Court.
2. The case of the plaintiff is that it is a registered partnership Firm carrying on business in hides and skins having its offices at Chittagong and Dacca. On 2-10-56 the plaintiff by the Railway Receipt Exh. despatched to Chittagong 77 bundles of calf skin (dry salted) containing 2300 pieces, 103 bundles of goat skin (dry salted) containing 10300 pieces and 10 bundles of jute rope from Dacca by wagon No, E. B. 51047. The plaintiff at the time of despatch executed risk notes A & B and on the Railway Receipt was the remark--"T. Sweat and deteriorate." The goods were also insured with defendant No,
3. The Insurance Company on 22-10-56 for Rs, 41,200 and was later raised to Rs, 50,000 on 12-11-56. The further case of the plaintiff is that the train reached Chittagong on 14-11-56 with unusual delay and thereafter they wanted open delivery which was refused by the Railway authority. On Railway Authority further threatening to sell the goods in auction the plaintiff was compelled to take delivery on 3-12-56 on giving clear receipt. The plaintiff took out a survey by Lloyds Agent, which give its report on 19-12-56, according to the said survey report 2300 pieces of calf skin were found completely wet and rotten, of 10300 pieces of goat skin 3380 were completely stained and rotten and 3050 were partly stained and the damage in respect of the latter was 50%, the report estimated the damage to Rs, 30,842-6-0. The plaintiff then gave notice under section 77 of the Railway Act and then under section 80 of the Code of Civil Procedure and thereafter the present suit for the amount given in the Survey report aforesaid was filed.
3. The plaintiff also impleaded the Insurance Company asserting that Insurance Company is liable to pay the actual loss incurred by the plaintiffs as the loss occurred during the time covered by the Insurance Policy.
4. The defendant Nos, 1 and 2 filed a written statement denying the liability of the Railway contending inter alia, that though there was some delay in transit yet it was unavoidable. The consignment was hooked under L/U condition, that loading and unloading to be done by the plaintiffs, the plaintiff's representatives executed Risk Notes A & B and in the Railway Receipt the defective condition of the goods were entered, the wagon reached Chittagong with full consignment and with seals in tact and the loss if any was due to the inherent vice of the skins and not due to any negligence or misconduct of the Railway authority. The defendant No, 3 also filed a separate written statement denying its liability on the ground that there was misrepre-sentation and that the policy was obtained through concealment of facts and as some express warranties were violated the policy was no longer enforceable against the Insurance Company. Several issues were framed and during trial the plaintiff examined four witnesses and the defendants Nos, 1 and 2 examined eight witnesses and both the parties filed some papers. The defendant No, 3 did not examine any witness but filed certain papers only.
5. The trial Court upon consideration of the facts and evidence on record found that in spite of the execution of Risk Notes A & B and the remark in the Railway receipt, the Railway authority is liable as a Bailee for the unusual delay in transit. It also found that the plaintiff was guilty" of contributory negligence. As to the actual damage caused, it did not fully rely on the survey report but based its decision on the report of the Tally Clerk of Railways regarding the damage of 19 bundles of goat skins and apportioned the damage to half and half between the plaintiff and the Railway Authority and thus decreed the suit for Rs, 3,652-8-0 against defend-ants Nos, 1 and 2. The trial Court also found defendant No, 3 liable for the said amount but according to him as defendants Nos, 1 and 2 are primarily responsible no separate decree was passed against defendant No,
3. There is no cross-objection either by the defendants Nos, 1 and 2 or by defendant No, 3.
6. Mr. Mozammel Huq, the learned Advocate for the plaintiff appellant has challenged the decision of the Trial Court contending that it ought to have accepted the survey report Exh. I in toto and decreed the suit in full and that the apportionment of the quantum of damages has not been proper. Mr. Siddique Ahmed Chaudhury the learned Senior Government Pleader supports the judgment. Mr. Behtar Ali appears for the Insurance Company.
7. The points for decision is whether the trial Court ought to have decreed the suit in full and which of the defendants are liable and to what extent ?
8. The most important point is whether the Railway Authority is at all liable in view of the execution of the Risk Notes A & B by the plaintiff and the entry in the Railway Receipt. The plaintiff tried to disown Kalu Mia the executant of the Risk Notes A & B but the Railway Receipt, the basis of plaintiff's claim recite that it is subject to Risk Notes A & B and in the forwarding note (Exh. A) on the basis of which the R/R is prepared contains the signature of Kalu Mia. No such case has been made in the plaint and as such the belated plea is nothing but afterthought. The trial Court has rightly over ruled this plea of the plaintiff. It can be presumed that the plaintiffs have withheld Kalu Mia from being produced in Court.
9. No doubt the plaintiffs executed Risk Notes A & B and remark of the goods being liable to sweat and deterioration would have been sufficient defence for the Railway authority to-be absolved of all liability under the contract but for the unusual delay in transit of the consignment. The Railways are liable as a Bailee in spite of the execution of the Risk Notes A & B. The Railway authority would have been absolved of its liability had the goods been delivered or the train reached within the normal and reasonable time of its arrival. The evidence on this point by D. W. 4 District Train Controller is that the normal time of despatch of a goods train from Dacca to Chittagong is 3 days ; that insufficient capacity of Akhura was the reason ; that heavy train service in 1956 was another reason of stabling, but there is nothing in his evidence to show that it was unavoidable or that it was unusual at that time that plaintiff ought to have known before sending the consignment of the kind that delay might be excepted. No other convincing evidence or explanation is coming from the Railway and so it cannot but be held that the delay is unusual. The evidences of D. Ws. 3 and 4 show that the wagon in question was despatched from Dacca on 3-10-56 and reached Taishahar and remained stabled till 7-11-56 when it was carried to Akhaura and it is the admitted case that it reached Chittagong on 14-11-56. It took about 42 days to reach Chittagong while the normal time is 3/4 days. This long delay without proper and cogent reason or explanations itself is misconduct on the part of the Railway authority. The trial Court is justified in holding to that effect. The decision reported in P L R 8 Dacca 299 may in this connection be cited.
10. The next question is the extent of liability of the defendants 1 and 2. It would first be seen that the plaintiffs by executing Risk Notes A & B have admitted the defective condition of the consignment ; secondly there is the entry in the R/R that the consignment is liable to sweat and deteriorate. The plaintiff on this point have examined P. W. 4 Waheduddin, an officer of plaintiff to say that the skins were dry and not wet, and he is said to have seen the loading of the goods. It may be noted that Kalu Mia who executed Risk Notes A & B and the forwarding note has not been examined. As against this there is the evidence of D. W. 1 G. M. Mohiuddin, the goods clerk of the Railway who has stated "I issued the R/R. It was for a complete and full wagon. On the basis of forwarding note Kalu Mia executed it and the risk notes. I saw the goods and I noted their condition in the R/R. It was waterlight "The statement of this witness is supported by R/R whereas the statement of P. W. 4 is not corroborated by any convincing evidence and as such he cannot be relied on this point. It is held that the goods despatched were not properly dried and so liable to sweat and deterioration and for this the Railway Authority will not be solely responsible.
11. Next question is to what extent the plaintiffs have proved the damage to the goods?
12. The plaintiffs have mainly based their claim upon the Survey Report dated 19-12-56 Exh. I. Before dealing with this report it is to be seen how and under what circumstances it came into being. It is the admitted case that the train arrived on 14-11-56 at Chittagong and the plaintiffs by their letter dated 14-11-56 Exh. 4 (a) wanted open delivery; it was forwarded to the Claims Inspector to give open delivery if the outward condition of the packages warrant so; the Claims Inspector by his report dated 16-11-56 (Exh. E) stated that no open delivery could be given as there was no shortage or pilferage and that the consignment having been loaded by the sender and said to contain R/R having been issued and that he did not find any of the bundles in wet condition. He also referred to the remark of D. W. 8 Awal Khan noted in the Tally Book dated 14-11-56 that at the time of unloading 19 bundles of Goat skins were found in wet condition. The plaintiffs were thus refused open delivery on 16-11-57. Mr. Siddique Ahmad Choudhury, the learned Senior Government Pleader cited 67 I C 312 and AIR 1951 All. 702 in support of the contention that the plaintiff cannot ask for open delivery as of right. Mr. Haq, learned Advocate for the appellant has failed to show any provision of law to the contrary.
13. In spite of refusal by the Railway Authority to give open delivery, the plaintiffs instead of lifting the consignment went on writing first for holding joint survey, then for lifting the consignment with "under protest" remark and it is when the Rail ways by their letter dated 1-12-66 (Exh. 4 (f)) threatened to treat the consignment as unclaimed unless delivery is taken under clear receipt on payment of all charges within a week, that the plaintiffs took delivery on 3-12-56 on giving clear receipt. Delay from 16-11-56 when open delivery was refused to 3-12-56 was due to the delatory tactics of the plaintiffs.
14. Then there is severe dispute when the survey was actually made. P. W. 3 the partner of the plaintiffs stated in his deposition : "We had to take delivery under compulsion on 3-12-56 when we were told that they would sell the goods if delivery is not taken. The same day we had the goods surveyed by Lloyd's agent. I was present at survey...
15. But the survey report and D. W. 2 give the date of survey on "7 and 10-12-56". This completely belies P. W. 3's statement. It is further to be noted that the report was actually prepared on 19-12-56 and that the certificate of Golam Bari P. W. 1 is dated 17-12-56 P. W. 1 merely says in his evidence that he examined the skins in December 1956 without giving the exact date P. W. 2 A. C. D. Cruze who actually prepared the survey report stated in cross-examination that his original notes of Inspection were destroyed by fire. In this context it is very difficult to accept the date of survey either on 3-12-56 or 7 and 10-12-56. There is also in evidence of D. W. 2 that--"I gave no notice of survey to the Railway or to the Insurance Co." He further stated--"Besides these skins there were lots of hides and skins in the godown." This clearly shows that the survey was an ex parte affair and D.
16. W. 2 says it was conducted in the godown of the plaintiffs where there was many other hides and skins and held much later from the date of actual delivery.
17. It is very difficult to rely on this survey report and the trial Court was justified in not putting any faith in it. Except this report there is no evidence of damages on the side of plaintiffs. The evidence of P.
18. W. 3 has been found not to be convincing. There is no corroboration to his evidence which is highly partial and unconvincing. No officer of the plaintiffs at the time of unloading or delivery has been examined. There is hardly any convincing evidence to prove the extent of damage claimed in the plaint by the plaintiff. We are therefore left with the evidence and note of D. W. 8 in his tally book made on 14.11-56 Exh. E. He stated that he found only 19 bundles of goat skins in wet condition and the rest were good condition and we do not find anything to disbelieve him. The plaintiffs are therefore entitled to recover damages for these 19 bundles of goat skins. Plaintiff booked amongst other 103 bundles of goat skins containing 10,300 pieces. Plaintiff has produced invoice (Exh. II) which show the value of each goat skin at Rs, 3-12-0 and so the total price comes to Rs, 7,105 for 19 bundles of goat skins.
19. The plaintiff by executing risk notes A & B and accepting noting of the condition of the consignment in the R/R. must bear the proportionate liability for the same and the Railways cannot be made wholly liable. The trial Court was right in deciding the liability equally and so the decree for Rs, 3,652-8-0 for damage caused to the said 19 bundles of goat skins has been correctly made against the defendants 1 and 2 by the Trial Court.
20. The plaintiffs have led evidence to show that the consignment was damaged by long delay and by the consignment coming into contact with water from outside due to leakage as stated by P. W. 3, D. W. 1 goods clerk stated the wagon to be waterlight. D. W. 2 Claim's Inspector says that the consignment was not damaged by contact with water. D. W. 8 Tally Clerk stated that jute ropes were in good condition and there was no sign of water inside against the wall or in the ceiling of the wagon. The overwhelming oral evidence is on the side of defence that there was no water coming into the wagon from outside and it is difficult not to accept them. But the fact remains that D. W. 8 in his Tally book noted 19 bundles of goat skins in wet condition and so the entry of some water from outside could not be excluded. In this state of the evidence again it can affirmatively said that there is no evidence to prove that any other bundles except 19 bundles were wet or damaged while the consignment was in the custody of the Railway. It may be noted that goods were loaded by plaintiffs and the train reached with seats intact.
21. We now come to ascertain the liability of defendant No, 3 the Insurance Company. The plaintiff simultaneously with the Railways carried on correspondence with the Insurance Company claiming compensation for the damages. There are Exhs. 4(g) to 4(I) and A-1(3)--A-1(6) and Annexure 'A' appended in Appendix to this paper book. From these correspondence it appears that the Insurance Company asked the plaintiffs to survey at the time of delivery. It however repudiated its liability, and raised the violation of warranty or condition of the policy was issued on 22-10-56 and then the amount under policy was raised on 12-11-56 to Rs, 50,000. The Insurance Company also filed a written statement repudiating the claim on the plea that though the policy dated 22- 10-56 was obtained "on the consignment booked under R/R No, 032133 dated 2-10-56 from Dacca to Chittagong" was subsequently raised on 12-11-56 on plaintiff's request though the consignment reached Chittagong on 14-10-56 and not 14-11-56 as falsely alleged in plaint. Allegation of misrepresentation about qualified R/R instead of unqualified R/R was made. It may be stated that no plea of internal vice of goods was said by the Insurance Company in their written statement. Mr. Behtar Ali, Advocate for the Insurance Company also reiterates these grounds.
22. On the face of it the pleas are untenable as on Insurance Company's own statement that R/R dated 2-10-56 was produced before them at the time of issuing the policy and so the alleged warranty of unqualified R/R must be deemed to have been waived. P. W. 3 has proved their case against the Insurance Company. The defence of the Insurance Company has not been followed up by oral evidence as no oral evidence at all was led by the Insurance Company. It must be held that after issuing the policy in the Railway Receipt the Insurance Company is bound by it. The Insurance Company was therefore correctly held to be liable by the trial Court.
23. It may be noted that the policy contained the following relevant warranty inter alia : "Warranted Rail risk including rain and fresh water damage including the Risk of Theft, pilferage and non-delivery on per clause attached."
24. A similar clause in a Marine Insurance for the despatch of wool has been construed by the House of Lords in 1921 (2) A C 41 and found for the assured that he can recover damage from the Insurance Company for the loss caused to the wool which became wet during the voyage. Contract of Insurance of this nature is essentially a contract of indemnity and the actual loss is to be compensated. We have found the policy did cover the risk and the note of tally book dated 14-11-56 about the damage of 19 bundles also prove that the loss took place within the risk period and while the consignment was in the custody of the Railways. The cause of damage as we have found is long delay; and the contact water from outside also could not be excluded. Plaintiffs are entitled to the compensation of loss if they prove casualty which they have done and they need not go further and prove the source or cause of the casualty. In this view of the matter the trial Court was not justified in not decreeing the half of Rs, 7,105 the loss found on account of damages of 19 bundles. The half of liability has been rightly decreed against defendants 1 and 2 and the other half amounting to Rs, 3,652-8-0 be decreed against defendant No, 3, the Insurance Company. The contentions of Mr. Behtar Ali therefore fail.
25. The appeal is therefore allowed in part. The suit be decreed against defendants Nos, 1 and 2 for Rs, 3,652-8-0 but no order as to cost of the suit, and the appeal ; And against defendant No, 3 for Rs, 3,652.8-0 with proportionate cost, in the appeal and the suit. The rest of plaintiff's claim be dismissed but without any order as to cost. With this modification the decision of the Trial Court is hereby affirmed.
26. The application for additional evidence is allowed. SIDDIKY, C. J.--I agree.