1. ' SYED HAIDER ALI PIRZADA, J.--This High Court Appeal is directed agaisnt the judgment and decree dated 7-12-1989 passed by a learned Single Judge in Suit No,118 of 1974 decreeing the suit of the respondents for a sum of Rs,3,47,405.
2. ' The facts leading to the filing of the above appeal are that in late June and July 1973 M/s. Premier Tobacco Industries Ltd., booked several consignments in all comprising of 6,891 bales of tobacco of different grades for carriage by Pakistan Railways belonging to the appellants from Jehangira Railway Station (Peshawar) for delivery to them at Karachi City Railway Station under various railway receipts. The said consignments were insured with the respondents under their Marine Policy No,M-73, 157907 in the sum of Rs,47,00,000. It was the case of the respondent as set out in the plaint, that out of the said 6,891 bales M/s. Premier Tobacco Industries received delivery form Karachi City Station of 5,007 bales in good order and condition. It was their case that the wagons carrying the remaining 1,884 bales covered under Railway Receipts Nos. 904278, 904283, 904284, 904297, 904298, 904299, 904300, 9043301, 904303, 904304, 904307, 904308, 904309, 904310, 904311 and 904312 arrived at Karachi City Railway Station on or about 5-6-1973 when the weather was overcast with clouds and conditions of heavy downpour existed. In spite of the said weather conditions, the said 1,884 bales were unloaded and stored by the servants, emplyees/agents of the railway in the open at platform Nos.3 and 4 of the Karachi City Railway Station and were left exposed and unprotected. There was heavy downpour of rain on 5-6-1973, 6-7-1973 and 7-7-1973 as a result of which the said 1,884 bales were wetted and suffered heavy damages. M/s. Premier Tobacco Industries Limited immediately on coming to know of the said damage, informed the Vice-Chairman (Commercial) of the Railways at Lahore and the District Controller of Stores at Karachi by telegrams dated 7-7-1973 holding the Railway responsible for the said damage which was caused due to negligence of their servants/employees/agents in storing the said bales at open platforms and leaking them unprotected and exposed to rains M/s. Premier Tobacco Industries Limited also informed the Assistant Commercial Officer of the Railways at Karachi of the said damage by their letter dated 7-7-1973 whose receipt was acknowledged by the Divisional Superintendent of the Railways at Karachi by his Letter No,S-SP/9/J/73 dated 13-7-1973 and the Vice-Chairman (Commercial) by his Letter No,450/9/04/73 dated 4-8-1973 advising the Premier Tobacco Industries Limited that the Divisional Superintendent, Karachi was competent to deal with the matter.
3. ' It was their further case that the respondents immediately, on hearing, informed by M/s. Premier Tobacco Industries Limited of the said damage, appointed M/s. Republican Surveyors, Karachi and M/s. Mob & Company, Surveyors, Karachi. To survey and assess the said damage. In view of the threatening weather conditions and in order to minimise the damage, it was agreed between the said surveyors and the concerned officers/employees/agents/servants of the Railway and the representatives of Premier Tobacco industries Limited that the said bales be removed to covered godowns of the Railway Yard of the Karachi Railway Station and the godowns of M/s. Premier Tobacco Industries Limited at S.I.T.E. And West Wharf, Karachi, The said bales were examined in the presence of the concerned staff of the Railway at the platforms and later surveyed at the said godowns by the said surveyors who assessed the damage. As a result of the said damage, M/s. Premier Tobacco Industries Limited suffered a loss of over Rs,3,47,405. The Divisional Superintendent repudiated the claim of M/s. Premier Tobacco Industries Ltd. For the said damage on flimsy and untenable grounds by his Letter No,2-CP/9/- 18/J/73 dated 16-9-1973. The said Premier Tobacco Industries Limited also lodged claim for the said loss with the respondents under said policy. The respondents settled the loss by paying Rs,3,53,858 on the basis of insured value under letter of assignment/subrogation dated 26-12-1973 whereby the respondents were assigned/subrogated all the rights and remedies of the said loss which M/s Premier Tobacco Industries Limited had against the appellants as owners of Railway. The respondents as assignees/subrogees were entitled to recover the said amount of Rs,3,47,405 from the appellants as compensation for the said loss. In these circumstances the respondents filed Suit No,118 of 1974 against the appellants for recovery of Rs,3,47,405.
4. ' The appellants contested the suit by filing written statement. The appellants admitted the arrival of the consignees on 5-7-1973 as per Railway Receipts. The appellants pleaded that weather condition on 5-7-1973 and 6-7-1973 as per weather report, was clear and there was no rain on those two days. The appellants pleaded that 1,884 bales were unloaded by the consigness under their own arrangement on 5-7-1973 at open Platform No,3 and covered Platform No,4 as the consignments were booked under condition of "loading and unloading by the owner". The contention of the respondents was denied that the bales in question were left exposed and unprotected. The case of the appellants was that they were covered with tarpaulins. It was the further case of the appellants that the, consignments were available for delivery on 5-7-1973 but the consignees deliberately failed to remove them on the very day of their unloading. As there was no rain on 5th and 6th of July, 1973, there was no damage to the said bales on the premises of the Railway. The allegations of negligence on the part of the Railway servants/employees/agents were emphatically denied. The goods were removed under clear receipts without passing any remarks in the Railway Delivery Book. The appellants contended that the respondent was not entitled to any compensation for alleged loss under any pretext.
5. ' On the pleadings of the parties, following issues were framed on 25-11-1974:-- "(1) Was the consignment in suit insured with the plaintiffs and have the plaintiffs a right to sue?
(2) Whether the weather was overcast with clouds and did it threaten to rain on 5-7-1973?
(3) Were the 'defendants negligent in storing the bales in suit in the open at Karachi City Railway Station?
(4) Was there any downpour of rain during the time that the bales in suit remained in the open at Karachi City Railawy 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 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 defendants 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 plaintffs entitled to recover the same?
(9) What should the decree be?"
6. ' The respondents examined in support of their case P.W. 1, Jamil Hussain Khan as Ext. 5, P.W.2 Rafi Ahmed Usman as Ext. 6, P.W. 3 Najmul Hasan as Ext.7 and P.W. 4 Hussain Ali Merchant as Ext.
8. The appellants examined in support of their case D.W. 1 M. Ayub Shah.
7. ' The learned Single Judge on assessment of the evidence adduced by the parties, came to the conclusion that the consignment was insured with the respondents and the respondents have right to sue.
8. ' The learned Single Judge discussed issues Nos.2 to 5 together. He, after a close analysis of the evidence, found that there was rain during the relevant time and the Railways did not take care of the goods in the manner expected as a bailee.
9. ' On issues Nos.6 and 7 he found that there was no delay on the part of the consignees in taking delivery which they took after notifying the Railway Authorities of the demages and getting the same surveyed. On issue No, 8, he came to the conclusion that the consignment suffered loss amounting to Rs,53,857.85. On these conclusions, the suit was decreed for the sum of Rs,3,47,705 with costs and interest as prayed. Hence the present appeal as stated in the earlier part of this judgment.
10. ' Mr. I.A. Lari raised a preliminary objection that the appeal is barred by time.
11. ' On the material placed on record, we are satisfied that the judgment was delivered on 7-12-1989 and the appellants applied for certified copy of the judgment on 12-12-1989 which was well within time for filing the appeal against the judgment. The certified copy of the judgment was delivered on 28-1-1990. The above appeal was presented on 17-2-1990. The appellants have filed an application (C M A No, 361/90) on 15-3-1990 for condonation of the delay under Section 5 of the Limitation Act. The main ground alleged for condonation of delay is "due to the application for certified copies which was filed without any delay as the date of the announcement of the judgment was wrongly mentioned in the official office filed of the case".
12. ' Mr. Lari cited a number of decision like 1974 SCMR 223, 1970 SCM R 558, 1988 SCM R 1906 and 1981 SCM R 37.
13. We are not oblivious of the fact that the appellants are Government of Pakistan. But the Supreme Court has said the expression "sufficient cause" is not to be liberally construed because the party in default was the Government.
14. In the instant case, the council did his duty. In this case, there was a delay of four days. This is the circumstance of the case which cannot be considered to be a very inordinate delay. The copy was ready on 28-1-1990 and the appeal was presented on 17-2-1990. In our opinion, there is no gross negligence on the part of the appellants in filing the appeal and sufficient ground has been made out for condoning the delay in filing the appeal. The application is allowed and we hold that the appeal is within time.
15. ' Mr. Akhlaque Ahmed Siddique has raised the following contentions:-
(1) The insurer cannot maintain an action in his own name although there is subrogation of the claims by the insured in favour of the insurer.
(2) The respondents have to satisfy that the Railways were negligent. (3) The respondents have not proved loss.
16. ' On the other hand, Mr. LA. Lari has submitted that the insurer can maintain an action in its name. It is not for the plaintiff in the first instance to prove when loss occurred. The plaintiff has no doubt, to satisfy that Railways were negligent, but the duty of showing how the consignment was dealt with during the consignment was on the Railways Administration as matter was within their special knowledge.
17. ' The first contention of Mr. Akhlaque is that the insurer cannot maintain an action in his own right although there is subrogation of the claims by the insured in favour of the insurer. We find no force in this contention. A marine policy can be assigned under Section 130-A, Transfer of Property Act and Section 135-A deals with the rights arising in consequence of such assignment of rights C under the policy of marine. The Hon'ble Supreme Court considered this point in the case of East ' and West Steamship Company v. Queensland Insurance Company (PLD 1963 SC 663) and held that Section 135-A read with Section 130 of the Transfer 'of Property Act and sections 91, 92 and 6 (e) of the Transfer of Property Act would show that insurer having paid up loss to assured may sue tort-feaser in his own name. This dictum was followed in the cases reported in PLD 1975 Karachi 647, PLD 1976 Karachi 1984 and PLD 1988 Karachi 300.
18. In our view, the effect of the above decisions is that the respondents can maintain an action in their own name.
19. As regards the second contention, we have to point out that the responsibility of the Railway Administration in respect of goods booked under railway risk is that of bailee. The administration must, therefore, take as much care of the goods which under its contract as a man of ordinary prudence would take of such goods and would be liable for the loss, destruction etc. If it happens E by its default or negligence, to prove, when loss or destruction occurs, as to hold it happened.
20. ' First to take up the question of negligence of the Railway Administration as carriers in respect of the goods, there can be no dispute that the Railway Administration took charge of the goods under Section 72 of the Railways Act, 1890 and the responsibility of the Railway Administration for the loss, destruction or deterioration of the goods of which they have taken charge under Chapter VII (Sections 72 and 73) is that of bailees under Sections 151, 152 and 161 of the Contract Act. The Railway Administration, as bailees, is bound to take as much care of the goods bailed to them, as a man of ordinary prudence under similar circumstances takes care of his own goods. It is a settled principle of law that in a case governed by the provisions of Sections 151 and 152 of the Contract Act, the loss or damage of the goods entrusted to the bailee is prima facie evidence of their negligence. The burden of proof is, therefore, on the bailee to disprove negligence when damage or loss is established.
21. ' In the present case, rain occurred on 5-7-1973, 6-7-1973 and 7-7-1973. Immediately on 7-7-1973 the consignees sent telegrams dated 7-7-1973 (Ext.5/3) and wrote letter dated 7-7-1973 (Ext. 5/4) to the Assistant Commercial Officer, Pakistan Railways, Karachi City. They pointed out that over 2,000 bales of tobacco off loaded from wagons and stored at open plinth uncovered by tarpaulin.
22. They also pointed out that they managed to cover the same with few tarpaulins which were available at the yard.
23. ' In this connection, reference may be usefully made to the decision of the Privy Council in Brabant and Company v. Thomas Mulhall King (1895) A.C.
632. In that case an act was commenced for damages for the loss and destruction of certain cases of dynamite and other explosive goods which had been stored in sheds near the water- edge and the Government was charged with neglect, in that they stored the goods at too low a level and further they failed to take reasonable and proper measures to save the goods or part thereof on the advent of the goods. Setting the principles the Privy Council observed at page 640: "Their Lordships can see no reason to doubt that the relation in which the Government stood to the appellant company was simply that of bailees for hire. They were therefore under a legal obligation to exercise the same degree of care, towards the preservation of the goods entrusted to them from injury, which might reasonably be expected from a skilled storekeeper, acquainted with the risks to be apprehended either from the character of the storehouse itself or of its locality; and that obligation included, not only the duty of taking all reasonable precautions to obviate these risks, but the duty of taking all proper measures for the protection of the goods when such risks were imminent or had actually occurred."
24. In the light of the above principles, on the facts we have no hesitation in agreeing with the learned Single Judge that the Railway Administration did not take care of the goods in the manner expected of a bailee and they continued to be negligent. Section 72 of the Railways Act (IX of 1890) provides that the responsibility of the Railway Administration for the goods delivered to them for carriage would ' be that of bailees under Sections 151, 152 and 161 of the Contract Act. Section 76 of the Railways Act further lays down that in a suit against Railway Administration for compensation for loss, destruction or deterioration of goods delivered to them for carriage, it shall not be necessary for the plaintiff to prove how the loss, destruction or deterioration was caused or occurred. There is not an iota of evidence from the side of the defendants/appellants in support of their stand that there was no rain on 5-7-1973, 6-7-1973 and 7-7-1973 and that the bales were delivered in perfect condition to the consignees.
25. ' The only other point that has been raised in this appeal relates to the loss amounting to Rs,3,47,705. The respondents placed reliance on the report of the surveyors and submitted that the said report shows the loss suffered by the consignees amounts to Rs,3,53,857.85 which amount has been paid by the respondents to the consignees. In the present case, no evidence has been led by the consignees to show that they suffered loss to the tune of Rs,3,53,857.85. We have already noticed that the respondent based loss on the basis of Surveyor's report. In our view, the loss has not been satisfactorily dealt with by the learned Single Judge.
26. ' In the result, the above appeal is allowed and the judgment and decree is set aside and the case is sent back for determination of the loss on the evidence already on record and on such further evidence that the parties may like to adduce. There will be no order as to costs.