' This appeal is directed against the judgment and decree, dated 3rd February, 1980, passed by the Vth Senior Civil Judge and Assistant Sessions Judge, Karachi, decreeing the respondent's suit for Rs,30,415.40.
2. The facts of the case briefly stated, are that the respondent is distributor for tea and for that purpose it maintains depots at various places in Pakistan. The respondent packs tea into cases and sends them to various places by trucks and it was for such purpose that the respondent engaged service of the appellant. In 1974, the respondent filed a suit in the Court of Vth Senior Civil Judge, Karachi, averring that the respondent had sent various consignments of tea through the appellant on different dates between June and August, 1973 and that when the tea was delivered to the consignees at various places, the same was found to be damaged by water. The tea which was found to be totally damaged was later on sold by the respondent loose packets and on account of this, the respondent suffered loss amounting to Rs,30,415.40. It was further averred that the tea got damaged due to failure of the appellant to take proper care and caution while transporting the same. The respondent then gave to the appellant, notice claiming damages thus suffered by it which was acknowledged by the latter. It was agreed by the appellant that the damage was caused by water and the appellant also agreed to compensate the respondent.
However, the appellant later backed out from its commitment.
3. The appellant filed written statement wherein the averments made by the respondent were denied. It was stated by the appellant that the business of transport was carried on by it as a commission agent and that the appellant was not the owner of the trucks. It was also denied by the appellant that it had any agents at places where the goods were delivered, It was further denied by the appellant that the cases were examined at their destination in presence of any representative of the respondent or that any joint survey of the goods alleged to have been d malted .Was carried as claimed by the respondent. The appellant also denied that damage to the tea was caused on account of any fault of the appellant or that any notice of damage had been given to or admit d by it. It was further denied that the respondent was entitled to an damages from the appellant.
4. Admittedly, this case proceeded ex parte against the appellant as the appellant had remained absent at the time of the hearing of this case resulting in the passing of ex parte order by the learned Civil Judge.
5. On the basis of the pleadings of the parties the learned Civil Judge, however, framed nine issues in the case out of which only the following are relevant for the purpose of this appeal and the same are reproduced as follows:- . "(i) Whether the goods were damaged while in the custody of the defendants, and what was the extent of damage ?
(id) Whether the goods were delivered at the destination in the presence of the defendants representative ?
(iii) Whether the plaintiff suffered a loss of Rs,30,415.40 ?
6. The respondent examined only one witness, namely, Muhammad Younus, who was its employee.
According to this witness, there was arrangement between the respondent and the appellant to receive tea from the respondent's factory at Karachi and deliver the same at various depots of the respondent in other cities. The witness stated that the appellant received consignments of tea on various dates as shown in schedule "An to the plaint (Exh.6). The witness further stated that some parts of such consignments were affected by water as delivered at various depots of the respondent as shown in schedule "B" to the plaint (Exh.6). The affected consignments were returned to the appellant for which claim bills were sent together with covering letters and respective truck receipts. Such claim bills and letters were also produced in evidence by the witness.
7. The argument of Mr. Yousuf Hussain, the learned counsel for the appellant, has been that the respondent has completely failed to prove its case and discharge the burden placed by law on it, therefore, the suit could not have been decreed in his favour. The contention of Mr. M.H. Sidddiqui, learned counsel for the respondent, on the other hand, was that the evidence adduced by the respondent was sufficient to establish the claim and reliance in this respect was placed by him on Muhammad Ishaque, Haji Dost Muhammad v. Abdul Ghani and others PLD 1960 (W.P.) Kar. 155 wherein Qadeeruddin Ahmed, J. (as he then was) had held that in the case of ex parte proceedings there is an implied admission of the plaintiff's contentions. It was also held that in absence of a contest by the defendant the pleas raised by the defendant should be taken to have been abandoned and that the burden on plaintiff to prove his case and disprove those contentions of the defendant of which the onus may be on the plaintiff or which may create duty of the Court under the law to adopt a prescribed course, becomes very light. In that case, under such circumstances, an affidavit filed by the plaintiff was, therefore, taken to be sufficient in support of his claim.
8. The moot question in the instant case, therefore, appears to be, whether the evidence adduced by the respondent is sufficient to establish his claim, even if the pleas taken by the appellant in the written statement are not taken into consideration. Admittedly, the respondent has failed to lead positive evidence to show whether proper care or caution had been taken by the appellant at the time of transportation of the goods or that the respondent or any of its agent was present at the time of their delivery. Then there is also no evidence to show that the damage to the goods took place while they were I transit. Even the evidence in respect of the dates on which different consignments were received at their destination has not been adduced. Furthermore, no evidence was led by the respondent to show as to what was the actual quantity of tea damaged and whether the los claimed by the respondent had directly accrued on that account. Even the averments made by the respondent in its plaint, that damaged to was sold by it in loose packets were not established. Although, in hi evidence, the respondent's witness has stated that the appellant was liable to pay a sum of Rs,30,415.40 to the respondent, but this evidence appears to be very vague and no details have been given in respect o the claim. How the damaged goods were disposed of by the respondent and how the alleged loss was suffered by it, are very material question which must be answered by the respondent with substantial proof.
9. Mr. M.H. Siddiqi, learned counsel for the respondent has, however, relied upon a Division Bench judgment of the Lahore High Court in Federation of Pakistan through General Manager N.W.R.
Lahore v. Ehsan Elahi PLD 1955 Lah.303 wherein it was held that the onus to prove negligence is on the plaintiff who may prove the same by circumstantial evidence but the burden to show that care of the property entrusted was taken is always on the bailee. The argument of Mr. Siddiqi therefore, was that since entrustment of the goods to the appellant for delivery to various depots of the respondent was not disputed the burden was on the appellant to prove that due care and caution had been taken by it while transporting the goods.
10. Be that as it may, but the initial burden to prove that the loss suffered by the respondent was a direct consequence of the negligence shown by the appellant's agents would still be on the respondent, although such burden could have been discharged through circumstantial evidence.
As has already been pointed out above, the evidence adduced by the plaintiff on the point is of a very vague nature and the same cannot be taken to be sufficient to establish the respondent's claim. A question somewhat similar arose in Messrs Queen Land Insurance Company Limited, Karachi v. The Trustees of Port of Karachi through the Chairman of the Port Trust Karachi and another PLD 1976 Kar. 238, as a vague estimate of damages claimed by the plaintiff in absence of any material evidence as to value of damaged goods was not accepted as sufficient proof in support of the claim for damages.
11. Although in this case, the respondent's witness has said that on the basis of the claim filed by the respondent the appellant is liable to pay Rs,30.415.40 to the respondent but there is no evidence in support of the basis of the calculation of such amount. Even the evidence in respect of the total quantity of tea damaged during transportation is wanting. Therefore, the evidence adduced by the respondent is highly insufficient and vague and no decree can be passed in favour of the respondent on the basis of this evidence.
12. As a result, this appeal is allowed and the judgment and decree, dated 3-2-1980, is set aside.
There will, however, be no order as t costs.