1. ' This is a suit filed by the plaintiff for recovery of Rs,3,47,405 with costs and interest pendent lite in future at 9% per annum. Briefly the case of the plaintiffs is that in the months of June/July, 1973, Messrs Premier Tobacco Industries Limited booked several consignments comprising of 6,891 bales of tobacco of different grades for carriage by Pakistan Railway from Jehangira Railway Station Peshawar for delivery at Karachi City Railway Station under various railway receipts. The said consignments are said to have been insured with the plaintiffs under their Marine Policy in the sum of Rs,47,00,000. It is further the case of the plaintiffs that out of the said 6,891 bales the consignees received from the Karachi City Railway Station consignments of 5,007 bales in good order while the remaining consignments arrived at Karachi City Railway Station on or about 5-7-1973 when the weather was overcast with clouds and conditions of heavy downpour existed and in spite of such weather conditions, employees/agents of the Railway unloaded the said remaining consignments of 1,884 Tobacco bales in the open at Plinth Nos.3 and 4 of the Karachi City Railway Station and the same were left exposed and unprotected and that the same were wetted and heavily damaged on account of heavy rain on 5th, 6th and 7th July, 1973. The consignees on coming to learn of the said damages is said to have informed the Vice-Chairman (Commercial) of the Railway at Lahore and also District Controller of Stores at Karachi by telegram dated 7-7-1973 holding them liable for the said damages. The consignee is also said to have informed the Assistant Commercial Officer of the Railway at Karachi by letter of the same date and were advised by the above authority that the Divisional Superintendent was competent to deal with the matter. The consignees then informed the present plaintiffs who immediately appointed Messrs Republican Surveyors Karachi and Messrs Moin & Co., Surveyors, Karachi, to survey and assess their damages. It is further claimed by the plaintiffs that in view of threatening weather conditions the said 1,884 tobacco bales were removed to covered godown of railway yard of the Karachi City Railway Station and also to the godown of the consignees at West Wharf at Karachi with the consent of the consignees, the surveyors and the Officers of the Pakistan Railway. The said bales are said to have been examined by all the concerned staff of the Railway at the Plinth and also at the godown and as a result of such survey the consignees suffered a loss of over Rs,3,47,405. The Divisional Superintendent of the Railway is said to have declined the claim of the consignees for the said damages and, therefore, the consignees lodged the claim with the present plaintiffs who settled the loss of being Rs,3,53,858 on the basis of insured value and obtained subrogation and thus filed present suit for recovery of Rs,3,47,405. The defendants contested the suit and filed their written statement against the claims of the plaintiffs. The case of the defendants is that there was no rain on the said date. It is further claimed that the consignments were booked under the condition that loading and unloading was to be done by the consignees themselves. It is also claimed by the defendants that the goods were removed by the consignees in good condition as the gate passes do not make any mention of damaged condition or the extent of loss. It is also the case of the defendants that no such survey of the damaged goods was made in presence of their representatives nor they were given any such notice by the plaintiffs or consignees which is a mandatory requirement under the Railway Rules. It is further claimed by the defendants that tarpaulin and other protection was provided by the Railway Authority. On the above pleadings of the parties the following issues framed:--
(1) Whether the consignment in suit insured with the plaintiffs gave the plaintiffs right to sue?
(2) Whether the weather was overcast with clouds and did not threaten to rain on 5-7-1973?
(3) Were the defendants negligent in storing the bales in the open at Karachi City Railway Station?
(4) Was there any downpour or rain during the time that the bales in suit remained in the open at Karachi City Railway Station, and were the bales in suit damaged thereby? If so, to what extent?
(5) Did the defendants fail to take proper and reasonable care of the bales in suit and was the damage to them due to their negligence?
(6) Was there any delay in taking delivery of the consignment in suit from the defendants at Karachi? If so, what is its effect?
(7) Was the delivery of the consignment in suit taken from the defendants under a clean receipt, and were the bales in suit removed from the premises of the Departments without notifying any damage? If so, what is its effect?
(8) What amount of loss was suffered by the consignees on account of damage to the bales in suit and are the plaintiffs entitled to recover the same?
(9) What should the decree be?
2. ' The plaintiffs have examined Mr. Jamil Hussain Khan the Export and Import Manager of the consignees, Mr. Rafi Ahmad Usmani of the Kaiser & Co. The clearing agent. The plaintiffs have also examined Mr. Najmul Hassan the sole proprietor of the Republican Surveyors and Mr. Hussain Ali Merchant, their Deputy Manager and have closed their side. The defendants examined one S.M.
3. Ayub Shah, Commercial Supervisor Goods, Pakistan Railways who filed affidavit-in-evidence and was cross-examined by the learned counsel for the plaintiffs. The defendants then closed their side. I have heard the learned counsel for the parties. Their submissions and my findings issuewise are as under:-- Issue No,1 ' On this issue the learned counsel for the plaintiffs has referred to section 2(13-A) of the Insurance Act which reads as under:-- "2(13-A) 'marine insurance' means the business of effecting contracts of insurance upon vessels of any description, including cargoes, freights and other interests which may be legally insured, in or in relation to such vessels, cargoes and freights, goods, wares, merchandise and property of whatever description insured for any transit by land, water or air, or by combination thereof and whether or not including warehouse risks or similar risks in addition or as incidental to such transit, and includes any other risks customarily included among the risks insured against in marine insurance policies:"
4. ' Learned counsel has also placed reliance on the case of East and West Steamship Co. v.
5. Queensland Insurance Co. PLD 1963 SC 663. In this case it has been observed by the Honourable Supreme Court as under:-- "I will state first what the English Law was before the Marine Insurance Act, 1906, came into operation. It is correct that before 1906 the insurer could in the Common Law Courts file a suit not in his own name but in the name of the assured. But what did this imply? Was there some peculiar substantive right which could be enforced only by a suit in the name of another? The answer is in negative. When it was said that the insurer could not file a suit in his own name it meant only, as Lord Pensance pointed out in Simpson & Company v. Thomson, Burrel, that the insurer had no right of suit at all. This is what the Law Lord said:- ' Tut the ground upon which I will ask your Lordships to reject this contention of the respondent's counsel is this that upon the cases cited no precedent or authority has been found or produced to the House for an action against the wrong-doer except in the name, and therefore, in point of law, on the part of one who had either some property in, or possession of, the Chattel injured. On the other hand, the existence of authorities in which the suit has been brought in the name of the owner, though for the benefit of persons having a collateral interest, is somewhat strong to show that such persons had no right of action in themselves. For it is to be presumed that a person having such a right would pursue it directly, and not indirectly through the name of another.
6. ' In fact it should not be difficult to appreciate that if a person had a right there will be no meaning in saying that he could not enforce that right and for enforcing it he must use the name of another."
7. ' In view of the above-cited case-law the learned counsel for the defendants has not pressed this issue. However, he has submitted that the plaintiffs have right to suit but the result of the suit would be dependent on the proof of the facts disputed in the suit. In view of the above discussion I answer this issue in affirmative.
8. Issues Nos.2 to 5 ' These are the connected issues and I will deal with the same together as the learned counsel for the parties have also made their submissions jointly. The first point on these issues to be determined is whether there was any rain in Karachi during the time (5th to 7th July, 1973) when the Tobacco bales were discharged and lying at the Karachi City Railway Station. The plaintiffs' witnesses have clearly stated in their evidence that on those particular days the sky was overcast and that there was rain by which the said tobacco bales were damaged. The plaintiffs have also relied upon the telegram sent by them to the Vice-Chairman of the Railway at Lahore and the letter written by them on the same date to the Assistant Commercial Officer of the Railway at Karachi City Station. They have also produced the letter from the Divisional Superintendent P.W.R.
9. Karachi acknowledging the above letters and asking for further documents such as R.Rs, etc. It is pointed out by Mr. IA. Lari learned counsel for the plaintiffs that nowhere in any of the letters written by the Railway Authority, they have denied the fact that there was rain on those relevant days. He has also referred to the last letter written by the Divisional Superintendent P.W.R. Karachi dated 169- 1973 (Exh.5/14) and has pointed that even in this letter the Railway have not denied the fact of there being rain during this period. As against this the defendants have relied upon the affidavit-in- evidence filed by their witness namely S.M. Ayub Shah who alongwith his affidavit had filed copies of the extract from the plinth delivery booked for relevant period. It may be observed that the copy filed in the Court is a photostat copy of a true copy which appears to be issued subsequently. This delivery book is in the nature of printed form containing various columns but there is no column providing for entering the weather report. However, there is column headed as 'remarks' and this column is left blank but there is an endorsement on the top of the form (D-1) which shows `weather clear' and below this there is signature of a person which is the same signature as that of the Goods Superintendent certifying the copy to be a true copy. On an inquiry the learned counsel for the defendants showed me a carbon copy from the original delivery book of the same document of 5-7-1973 being page No,83 which carries the same endorsement on the top of the printed form `weather clear' and also the endorsement at the foot 'true copy'. Both these endorsements are signed by the same person and are not carbon impression but are in ink which goes to give rise to obvious inference that endorsement 'weather clear' was made by the Goods Superintendent at the time of certifying the same to be true copy. No date has been mentioned as to on which date these copies were certified to be true copies. It may also be observed that such endorsement about the weather is made only on the sheet pertaining to page 83 dated 5-7-1973 but the other sheets pertaining to page 83 onwards dated 5-7-1973 to 7-7-1973 do not contain any such endorsement about the weather. This gives rise to the inference that this endorsement about the weather has been subsequently made at the time when the certified copy was being issued. Moreover, this witness of defendants in his cross-examination does not deny the fact of the downpour of rain but has given evasive reply showing he does not remember if there was any rain on the said date.
10. From the above discussion it can safely be concluded that there was rain during the relevant period. The next question for consideration in consequence of these issues is whether the defendants were negligent in providing proper protection to the goods of the consignees received at Karachi City Railway Station. It is admitted by the defendants' witness that the goods were unloaded and stored at platform No,3 which is an open platform. He has further submitted that some of the goods were stored at Platform No,4 which has a Shed covering the same. Mr. Munib Ahmed Khan, learned counsel for the defendants has placed reliance on the gate passes under which the consignment was removed by the Clearing Agent of the consignees. He has submitted that these gate passes do not show any endorsement to the effect that the goods were in damaged condition. The gate passes are produced in evidence as Exhs.6/17 to 6/32. These are the printed forms which do not contain any column for showing the condition of goods. However, it has been explained by the clearing agents in their evidence that it is the normal practice of the defendants Railway that they would not allow the delivery of goods except on clean receipt and in such circumstances they were obliged to give such receipt but he as well as plaintiff witness from the consignees company have specifically stated that the Railway Authority were immediately notified by them about the condition of the goods which fact is supported by the telegram and letter of 7-7-1973 sent by the consignees to the Railway Authorities. The defendants in their written statement have stated that they provided with tarpaulin and other protection to the consignments against the hazard of rain which itself goes to show that there was rain but no such evidence has been brought on record. The witness examined by the defendants has stated in his cross- examination that though he was designated as Goods Clerk but fact is that he was working as PA.
11. To Goods Superintendent and that his duty was to look after the claims relating to the commercial work of the station and to attend the correspondence on his behalf. He does not show as to whether he was in any manner concerned with the unloading or storing of the goods but he has said that he had inspected the goods himself but again said that he does not remember as to on what time and what date he had seen the goods. This witness further stated that he had prepared the list of the persons appointed to jobs relating to the consignments in dispute who were 4 in number and their names have also been given but none of those 4 persons has been examined by the defendants to rebut the case of the plaintiffs. Mr. IA. Lari learned counsel for the plaintiffs has submitted that this witness of the defendants is not a competent witness as on his own admission he is not connected with the fact of unloading and storing of the consignments. The learned counsel for the plaintiffs has further placed reliance on the report of the surveyors (Exh.5/12) which shows the extent of loss suffered by the consignees which has been paid by the plaintiffs. The surveyors have examined and surveyed the consignments at Karachi City Railway Station as well as at the godown and also at Jehangira Road where the goods were then taken back for reprocessing in order to reduce the extent of loss suffered by the consignees. From the above discussion the plaintiffs have been able to show that there was rain at Karachi at the relevant time and that the goods were stored on open platform which were damaged and loss was sustained by the consignees as per the report of the 2 surveyors, one of whom has been examined in the suit. In view of the above I answer the issue accordingly.
12. Issues Nos.6 and 7 ' Learned counsel for the defendants has submitted that the consignments had arrived at Karachi City Railway Station but the consignees deliberately delayed in receiving delivery of the goods which fact is proved from the gate passes produced in evidence as Exhs. 6/17 to 6/32. It may be observed that the plaintiffs' witnesses i.e, their clearing agents and representative of the consignees have specifically stated that they had not received any intimation from the Railway Authorities regarding the arrival of the goods train carrying the said consignments and when they learnt about it they immediately came to the station and saw the goods in damaged condition on 6-7-1973 for which they immediately sent the telegram and letter to the Railway Authorities which was duly acknowledged by them and thereafter they got the goods surveyed and then took the delivery. The defendants' witness has not denied this fact in his cross-examination. He gave evasive reply with regard to receipt of the above telegram and letter showing that he cannot say whether the same were received by the defendants. This witness also stated that the delivery was taken by the consignees unloaded from 12 wagons on 7-7-1973 while the delivery of the consignments loaded in remaining 4 wagons was effected on 10-7-1973. From this fact it is clear that, there has been no delay on part of the consignees in taking delivery which they had taken after notifying the Railway Authorities of the damaged goods and getting the same surveyed.
13. Issue No,8 ' On this issue Mr. IA: Lari has placed reliance on the report of the surveyors and has submitted that the said report shows that loss suffered by the defendant amounts to Rs,3,53,857.85 which amount has been paid by the plaintiffs to the consignees. He has, however, submitted that the plaintiffs being the assignees/subrogatees of the Premier Tobacco Industries Ltd. Are entitled to recover the amount of Rs,3,47,405 only for which this suit has been prayed. I, therefore, answer the issue to the effect that the consignees had suffered the loss as stated above on account of damages to the Tobacco Sales and that the plaintiffs are entitled to recover the amount in suit.
14. Issue No,9 ' In view of my findings on the above issues, the suit of the plaintiffs is decreed for the sum of Rs,3,47,405 with costs and interest as prayed.